Gujarat High Court
Samir Jitendra Patel vs Shobhanaben Satyendrabahi Shah on 24 October, 2019
Equivalent citations: AIRONLINE 2019 GUJ 511
Author: A. P. Thaker
Bench: A. P. Thaker
C/CRA/227/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 227 of 2019
With
R/CIVIL REVISION APPLICATION NO. 231 of 2019
With
R/CIVIL REVISION APPLICATION NO. 235 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR.JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SAMIR JITENDRA PATEL
Versus
SHOBHANABEN SATYENDRABAHI SHAH
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Appearance:
MR.HEMANG H PARIKH(2628) for the Applicant(s) No. 1
MR TARAK DAMANI(6089) for the Opponent(s) No. 1,2
RULE SERVED(64) for the Opponent(s) No. 3,4,5,6,7
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CORAM: HONOURABLE DR.JUSTICE A. P. THAKER
Date : 24/10/2019
ORAL JUDGMENT
1. All these three Civil Revision Applications have arisen out the common order passed by the Page 1 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019 C/CRA/227/2019 JUDGMENT learned Chamber Judge, Court No.27, City Civil and Sessions Court, Ahmedabad below Exh18, 21 and 22 in Civil Suit No.40 of 2018, whereby the applications filed by the respective applicants herein for rejection of plaint under Order 7 Rule 11 of the Civil Procedure Code, came to be dismissed.
2. So far as CRA No. 227 of 2019 is concerned, the applicant is the original defendant no.6 whereas in CRA No.231 of 2019, the applicants are present defendant nos. 4 and 5 and in CRA No.235 of 2019 the applicants are defendant nos. 1 to 3.
3. The contents of the application are similar and therefore the CRA No.227 of 2019 is treated as lead matter.
4. For the brevity and convenience the parties are referred to in this matter is as per their status before the learned Trial Court.
5. The application at Exh18 was preferred by defendant nos. 1 to 3 and Exh21 was filed by Page 2 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019 C/CRA/227/2019 JUDGMENT defendant no.6 whereas Exh24 was filed by defendant nos. 4 and 5 seeking rejection of plaint under Order 7 Rule 11 of CPC.
6. The sum and substance of respective application filed by the defendants is that no cause of action has arisen in favour of the plaintiff to file the present suit and, therefore, they have requested to reject the plaint under Order 7 Rule 11. It is also contended by the defendants that plaintiffs have not demonstrated that they have a right to file suit against the defendants and has not disclosed any cause of action against the respective defendants and the plaint does not contain material fact to constitute the cause of action. It is also contended that in the plaint that the defendant no.1 has misbehaved with son Ridham Shah of plaintiff no.1. It is also alleged that defendant no.1 had attempted to unsettle marriage life of Ridham Shah however Ridham Shah is not joined as party to the present suit though he is Page 3 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019 C/CRA/227/2019 JUDGMENT a necessary and proper party to adjudicate the dispute between the plaintiffs and defendant nos. 1 to 3. According to them, Ridham Shah and plaintiffs are different persons and rights in favour of Ridham Shah cannot be equated with rights of the plaintiffs. It is also contended that plaintiffs have not pleaded how the plaintiffs have suffered the alleged loss of Rs.50,00,000/ and such claim of the plaintiffs is imaginary and baseless. So far as defendant nos. 1 to 3 are concerned, they have stated that the allegation made against them are baseless whereas defendant nos. 4 to 6 have contended that they are neighbours of the plaintiffs and defendant nos.1 to 3 and they have been falsely implicated in the matter.
7. After perusal of the material on record, the learned trial Court has passed impugned order and dismissed all the applications filed by the respective applicants.
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C/CRA/227/2019 JUDGMENT 8. Being aggrieved and dissatisfied with the impugned order, the respective defendants have filed separate revision applications mainly on
the ground that the contention of the defendants regarding no cause of action has not been properly appreciated by the learned trial Court. According to them, it is necessary for the plaintiffs to indicate the cause of action which will be necessary for the plaintiff to prove in order to get the relief as prayed. It is also contended that the trial Court has mechanically read the plaint and have not read it meaningful. It is also contended that the averments in Para 12 to the effect that due to alleged harassment of defendants to the family of the plaintiffs for last 2 years, personal life of plaintiff no.2 and Ridham Shah is spoiled, has been mechanically believed by the trial Court. It is also contended that when the plaint is devoid of cause of action which is necessary to adjudicate the matter, the trial Court ought to have allowed the applications. It is also contended that the Page 5 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019 C/CRA/227/2019 JUDGMENT reliance placed by the learned trial Court on the decisions of Apex Court in case of Kuldeep Singh Pathania v. Bikram Singh Jaryal, decided on 24.1.2017 in Civil Appeal No. 4080 of 2014 is not applicable as the defendants have not relied on any documents produced by it and reliance was solely placed on plaint. Their applications ought to have been allowed by the trial Court and the Suit of the plaintiffs should have been rejected.
9. Heard learned advocate Mr. Hemang Parikh for the defendants (Applicants) and learned advocate Mr. Tarak Damani for the original plaintiffs and respondent nos. 1 & 2 herein. Nobody has appeared for rest of the respondents.
10. Learned advocate Mr. Parikh has taken this Court to the averments of the plaint and has submitted that whatever dispute is regarding the conduct of the defendant no.1 with the plaintiffs and every allegations made, are bald allegations only. According to him, the entire case is based Page 6 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019 C/CRA/227/2019 JUDGMENT on action on the part of the defendant no.1 whereas other defendants have no role in the said act. It is also contended that the entire incidence pertains to Ridham Shah but he has not been joined as party and only mother and daughterinlaw have filed the Suit for the alleged harassment to said Ridham Shah. The learned advocate Hemang Parikh has submitted that the observation of the trial Court regarding cause of action is not proper as from the plaint itself no cause of action is properly pleaded and so far as defendant nos. 4 to 6 are concerned, they are the neighbours and they have not taken any part. According to him, the dispute is between plaintiffs and defendant no.1. He has also contended that there is allegation that defendant no.1 has filed false complaint against Ridham Shah and his family members and called them to Police Station. It is alleged that due to that the image of the plaintiffs has been tarnished in the Society and the same was settled at the Police Station. He has also contended that Page 7 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019 C/CRA/227/2019 JUDGMENT the averment made in the plaint regarding spoiling of life is concerned, there is no specific averment as to on what basis the life has been spoiled. It is also contended that so far as allegations of defendant nos.1 is concerned, she did not got married and, therefore, she is interfering in the life of Ridham Shah and plaintiff no.2 are devoid of merits. According to him, Ridham Shan should have filed proceedings against erring persons. He has contended that the defendant nos. 2 and 3 are parents whereas defendant nos. 4 to 6 are neighbours against whom no cause of action arises. While referring to the decision rendered in 1977 (4) SCC 467, especially para7 therein, has prayed to allow the present Civil Revision Applications and reject the plaint of the plaintiffs.
11. Per contra, Mr. Tarak Damani, learned advocate for the original plaintiffs has vehemently submitted that there are clear Page 8 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019 C/CRA/227/2019 JUDGMENT averments made against each defendants regarding the mental harassment to the present plaintiffs at the hands of the defendants. While drawing attention of the Court to the contention in the plaint, he has submitted that there is a clear averment made in the plaint to the effect that in what manner the defendants have acted in collusion with each other. It is also submitted that even at the instance of defendant no.4, the complaint was being lodged and neighbours have also abused and used filthy language against plaintiff no.1 and have also approached the Police Station to file complaint against the plaintiffs. However, that complaint was not registered by the Police. By referring to Para10 of the plaint, it is submitted that they have also damaged the property of the plaintiffs. According to him, there cannot be any partial rejection of the plaint. He submitted that the learned trial Court has not committed any serious error of facts and law in rejecting the applications of the defendants. He has relied on Page 9 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019 C/CRA/227/2019 JUDGMENT the decision in case of Jayantilal Chimanlal Patel v. Vadilal Purushottamdas Patel, reported in AIR 2017 SC 1157 especially Para 4 to 10 and has submitted that the Applications may be dismissed.
12. In rejoinder Mr. Parikh, learned advocate for the applicants has submitted that facts and decision of AIR 2017 SC 1157 is different from the facts of the present case and, therefore, the said decision is not applicable to present case. While referring to decision reported in T.Arivandandam v. T.V. Satyapal and another, reported in (1977) 4 SCC 467, he has contended that mere allegation is not sufficient to constitute cause of action. He has prayed to allow the petition.
13. It is well settled principle by catena of decisions that the High Court, while considering the matter in exercise of its jurisdiction in civil revision application would not reverse the Page 10 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019 C/CRA/227/2019 JUDGMENT finding of fact as recorded by the Courts below. But it is not an absolute proposition. In a case where the finding is recorded without any legal evidence on the record, or on misreading of evidence or suffers from any legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High Court to set aside such a finding and to take a different view. The exercise of the revisional power is broadly subject to the following conditions; (1) That the decision must be of a court subordinate to the High Court;
(2) That there must be a case decided by a subordinate court;
(3) No appeal must lie either to the High Court or to any lower appellate court against the decision;
(4) In deciding the case, the subordinate court must appear to have - (a) exercised a jurisdiction not vested in it by law, or (b) failed to exercise a jurisdiction vested in it by Page 11 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019 C/CRA/227/2019 JUDGMENT law, or (c) acted in the exercise of its jurisdiction illegally or with material irregularity. The High Court in exercising the revisional powers is in its very nature is a truncated power. The width of the powers of the revisional court cannot be equated with the powers of the appellate court. In exercising the legality and the propriety of the order under challenge, what is required to be seen by the High Court is whether it is in violation of any statutory provision or a binding precedent or suffers from misreading of the evidence or omission to consider relevant clinching evidence or where the inference drawn from the facts proved is such that no reasonable person could arrive at or the like. It is only in such situations that interference by the High Court in revision in a finding of fact will be justified. Mere possibility of a different view is no ground to interfere in exercise of revisional power.
14. The paragraph Nos.4 to 10 of the decision in Page 12 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019 C/CRA/227/2019 JUDGMENT case of Jayantilal Chimanlal Patel v. Vadilal Purushottamdas Patel, reported in AIR 2017 SC 1157, are as under:
"4. The learned trial Judge dismissed the suit being hit by the principle of Order 2 Rule 2 of the Code of Civil Procedure, as well as on merits.
5. The said judgment and decree was assailed in Civil Appeal No.61 of 2004. The appeal arising out of the first suit and the appeal arising out of the second suit were taken up together and were dismissed by the common judgment dated 24th March, 2006.
6. The dissatisfaction of the nonsuccess compelled the appellant to file two civil revision applications, namely, Civil Revision Application Nos.172 and 173 of 2006. The High Court by the common order dated 1st April, 2014, dismissed both the civil revision applications.
7. It is submitted by Ms. Pyoli, learned counsel appearing for the appellant that all the courts have fallen into error by applying the principle under Order 2 Rule 2 of the Code of Civil Procedure when the plaint in the earlier suit was not proved being marked as an exhibit. Additionally, it is urged by her that the High Court has not addressed to the merits of the case, but has been totally guided by the issue that the suit was barred by Order 2 Rule
2.
8. Mr. Tanmay Agarwal, learned counsel appearing for the respondents, per contra, would contend that the High Court has correctly appreciated the spirit of Order 2 Rule 2 of the Code of Civil Procedure by taking into consideration the findings recorded in the earlier judgment and, therefore, this Court should not entertain any attack on the judgment on the said score. As far as the delineation on the merits is concerned, it is urged by Mr. Agarwal that the analysis made by the High Court on that score, especially in paragraphs 10 and 10.1, are absolutely unimpeachable.
9. To appreciate the submissions raised at the Bar, we have carefully perused the common order passed by the High Court in both the civil revision Page 13 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019 C/CRA/227/2019 JUDGMENT applications. As we find that the High Court has adverted at length to the facet of Order 2 Rule 2. On a scrutiny of the entire judgment, we do not find that there is any mention that the plaint in the earlier suit was proved.
10. In this context, learned counsel for the respondent has drawn our attention to the Constitution Bench decision in Gurbux Singh vs. Bhooralal[1]. In the said case, this Court while considering the issue of Order II Rule 2 has opined thus: "6. .....As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is common ground that the pleadings in CS 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under Order 2 Rule 2 of the Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the stage of the appeal the learned District Judge noticed this lacuna in the appellant's case and pointed out, in our opinion, rightly that without the plaint in the previous suit being on the record, a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code was not maintainable.
7. ......This apart, we consider that learned Counsel's argument must be rejected for a more basic reason. Just as in the case of a plea of res judicata which cannot be established in the absence on the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under Order 2 Rule 2 of the Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the Page 14 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019 C/CRA/227/2019 JUDGMENT identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed."[Emphasis supplied]"
15. The relevant provisions contained in Order 7 Rule 11 of the CPC provides as under:
"11.Rejection of plaint: The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamppaper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where is it not filed in duplicate;Page 15 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019
C/CRA/227/2019 JUDGMENT
(f) where the plaintiff fails to comply with the provisions of Rule 9:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamppaper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
16. In view of the aforesaid provision, the law is well settled that if one of the conditions is fulfilled then Suit may be rejected. It is also well settled that the plaint cannot be rejected on the basis of allegation made by the defendant, in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses cause of action and if it does, then the plaint cannot be rejected by the Court by Page 16 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019 C/CRA/227/2019 JUDGMENT exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaintiff discloses the cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct.
17. It is also well settled principle of Law that the cause of action is vital fact which are required to be proved for obtaining relief. For the same purpose, material facts are required to be stated but not the evidence except in certain cases where the pleading relevant to present investigation, fraud, willful default, undue influence or of the same nature so long as the plaint discloses some cause of action which required determination by the Court. Mere fact that in the opinion of the Judge the plaint may not succeeded, cannot be a ground for rejection of the plaint.
18. In the case of T. Arivandandam v. Page 17 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019
C/CRA/227/2019 JUDGMENT T.V.Satyapal and another, reported in (1977) 4 SCC 467, the Apex Court has observed that the learned Munsif must remember that if on a meaningful - not formal reading of the plaint it is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII Rule 11, CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X CPC. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage.
19. Considering the facts of the present case, it appears that there is strained relations between the plaintiffs and defendant nos. 1 to 3. The entire base of the Suit is that in past the Page 18 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019 C/CRA/227/2019 JUDGMENT plaintiffs and defendant nos. 1 to 3 had family relations and thereafter the relations have strained. It also appears from the record that after marriage of son of defendant no.1 namely Ridham Shah, some dispute has arisen. It is also alleged by the plaintiff that defendant no.1 was in love with Ridham Shah and wanted to marry with him and Ridham Shah treated her as sister. Out of that frustration the defendant no.1 has tried to create problem in the marriage life of Ridham Shah and plaintiff no.2. It is also averred that due to the harassment on the part of the defendant nos. 1 to 3 as well as defendant nos. 4 to 6 the husband and wife had to leave the place and reside on rental premises. The allegation made in the plaint has been described succinctly. It is also averred against the neighbours that with the aid of remaining defendants they have also abused the plaintiffs and have mentally harassed them. At this stage, there is no need of detailed inquiry but on reading of the plaint it primafacie appears that the plaintiff has Page 19 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019 C/CRA/227/2019 JUDGMENT averred necessary facts relating to cause of action. The action is regarding claim of compensation for the tortuous act. There is no straight jacket formula that particular amount only should be claimed. The amount of compensation is a factor to be decided by the Court on the basis of the evidence lead by the parties. But for valuation of the Suit some amount of compensation is required to be mentioned. It is but natural that considering status of the parties amount may be less or more, depending on the facts of the case. The cause of action has been disclosed in the plaint. The contention raised by the defendants in their application are matter of evidence. As such, order for rejection of plaint under Order 7 Rule 11 cannot be passed in the present matter.
20. On perusal of the impugned order of the trial Court, it clearly reveals that learned Judge has properly appreciated the facts of the case and has not committed any error of facts and law in Page 20 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019 C/CRA/227/2019 JUDGMENT dismissing the applications of the defendants. The impugned order is not perverse in any manner. The same does not warrant interference.
21. In view of the above, the present revisions applications are liable to be dismissed and the same are dismissed. No order as to costs.
(A. P. THAKER, J) saj Page 21 of 21 Downloaded on : Fri Oct 25 23:09:05 IST 2019