Gujarat High Court
Laxmiben vs Vasudevbhai on 17 September, 2010
Author: H.B.Antani
Bench: H.B.Antani
Gujarat High Court Case Information System
Print
CRA/36/2009 55 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 36 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
LAXMIBEN
WD/O RAMUBHAI MAGANBHAI & 4 - Applicant(s)
Versus
VASUDEVBHAI
GANDABHAI PATEL & 3 - Opponent(s)
=========================================================
Appearance
:
MR
MIHIR THAKORE and MR PC KAVINA, SR. ADVOCATES with MR AB MUNSHI
for
Applicant(s) : 1 - 5.
MR AMIT V THAKKAR for Opponent(s) : 1 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 17/09/2010
ORAL
JUDGMENT
1. The applicants who are the original defendants have preferred the present Revision Application under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code ) against the opponents original plaintiffs challenging the order dated 2.2.2009 passed by the learned 7th Additional Senior Civil Judge, Surat by which the learned Judge partly allowed the application at Exh.47 filed by the applicants in Regular Civil Suit No. 397 of 2007 so far as the relief prayed for by the applicants under Order 7 Rule 11(b) and (c) of the Code is concerned, but rejected the said application so far as the remaining reliefs prayed for in the said application is concerned.
2. The facts of the case are as under:-
The opponents have filed Regular Civil Suit No. 397 of 2007 in the Court of learned Principal Senior Civil Judge, Surat for a declaration that the opponents herein have 1/2 share in the property being agricultural land bearing block Nos. 4, 74, 76 and 226 of Village Pal, Taluka District Surat and that the applicants herein have no right to transfer the said land in any manner whatsoever or to hand over possession thereof to a third party and for separate possession of 1/2 share in the suit property by partitioning the suit property by metes and bounds and for accounts of the income derived by the applicants from the suit land during last three years and for permanent injunction restraining the applicants from in any manner dealing with the suit property and from transferring the possession of the suit land in favour of a third party or from in any manner changing the nature and identity of the suit land and from putting up any construction etc. The suit was filed on 22.8.2007. The opponents also filed an application vide Exh.5 for interim injunction. The applicants resisted the claim of the opponents made in the suit as well as the application Exh.5 for interim relief by filing the written submissions vide Exh.18 on 17.10.2007. In their written statement, the applicant raised a preliminary objection against maintainability of the suit itself and contended that a preliminary issue is required to be raised and the suit be decided on the preliminary issue. The applicants also filed the application at Exh.35 under Order 14 Rule 2 read with Order 7 Rule 11 of the Code and requested the learned Trial Judge to frame and decide two issues as set out in the said application before application Exh.5 was decided. The opponents filed their reply at Exh.37 resisting the application at Exh.35. Thereafter, the applicants filed the application at Exh.47 under Order 7 Rule 11(a), (b) and (d) of the Code requesting the learned Trial Judge to reject the plaint as the same did not disclose any cause of action as per Hindu law as operative before 1956 and law of limitation even as per the averments made in the plaint itself. The said application was filed on 15.3.2008. The opponents filed their reply vide Exh.49 on 28.3.2008 and contested the application at Exh.47 on various grounds. It is submitted that the learned 11th Additional Senior Civil Judge, Surat proceeded to decide the application Exh.35 without disposing of the application Exh.38 filed by the opponents and Exh.47 filed by the applicants. The learned Judge by his order dated 15.3.2008 rejected the application Exh.35 filed by the applicants.
The applicants thereafter filed Review Application No.33 of 2008 under Section 114 read with Order 47 Rule 1 of the Code for review of the order dated 15.3.2008 passed by the learned Trial Judge below application Exh.35. The opponents filed the reply vide Exh.18 contesting the Review Application and ultimately, the learned Judge by his judgment and order dated 22.7.2008 rejected the said Review Application. Being aggrieved by and dissatisfied with the order passed by the learned Trial Judge in the Review Application, the applicants approached this Court by filing Special Civil Application No. 10284 of 2008, wherein they have produced all the applications and the orders passed below the applications along with memo of the petition. After hearing both the parties at length in the said petition, the Court was pleased to dispose of the said petition subject to the following observations made in Para 3 of the order dated 12.8.2008 which is as under :-
3. Considering the above, present Special Civil Application is disposed of without further considering the impugned order on merits by observing that, as and when application Exh.47 submitted by the petitioners-original defendants under Order 7 Rule 11 of CPC is taken up for hearing, the same shall be decided and disposed of by the learned trial court independently in accordance with law and on merits and in any way without being influenced by any of the observations made by the trial court while passing the impugned order under Exh.35.
It is submitted that the applicants thereafter submitted written submissions at Exh.76 in support of the application at Exh.47 on 9.9.2008. Thereafter, the opponents also filed the written arguments vide Exh.80 in support of their claim in their written reply at Exh.49 on 15.12.2008. Thereafter, the learned Trial Judge by his order dated 2.2.2009 partly allowed the application Exh.47 and directed the opponents herein to amend the valuation of suit and pay the deficit amount of Court fees within 15 days. However, the learned Judge rejected the application Exh.47 so far as the relief of rejecting the plaint is concerned. The applicants being aggrieved by the aforesaid order has preferred the present Revision Application.
3. Mr Mihir Thakore and Mr PC Kavina, learned Senior Advocates for the applicants submit that the learned Trial Judge has committed gross error in exercising the jurisdiction not vested in him while not considering the relief to reject the plaint under Order 7 Rule 11(a) and (d) of the Code. It is submitted that the learned Judge committed an error in not appreciating the provisions of Order 7 Rule 11(a) and (d) of the Code in proper perspective. Order 7 Rule 11(a) and (d) is with regard to rejection of plaint. It is stated therein that the plaint shall be rejected in the cases where it does not disclose a cause of action and where the suit appears from the statement in the plaint to be barred by any law. The learned Trial Judge committed an error in not appreciating that as per the averments made in the plaint, the common ancestor of the parties to the suit had expired on 12.3.1955 and on his death, the properties of the deceased Maganbhai were inherited by his son Ramubhai to the exclusion of his sister Shantiben. The plaintiffs are the descendants of Shantiben who inherited no property since the succession which opened on the death of Maganbhai resulted in his son Ramubhai taking the entire property by way of intestate succession as per the customary Hindu law. The learned Judge also did not appreciate that the wife of Maganbhai Bhagubhai had predeceased him and his daughter Shantiben had no right of inheritance in Hindu law as it stood at the relevant time i.e. prior to the enactment of Hindu Succession Act, 1956. It is submitted that the claim of the opponents is based on the averments made in the plaint that Shantiben, daughter of Maganbhai was entitled to a share in the properties left by the deceased Maganbhai on his death on 12.3.1955, though under the Hindu law then in force, she was not entitled to a share in the said properties. The learned Trial Judge, therefore, committed an error in not appreciating that from the averments made in the plaint itself, the plaint does not disclose the cause of action. The learned Judge has also not appreciated that admittedly the opponents plaintiffs claim share in the suit properties through Shantiben, daughter of the deceased Maganbhai on the ground that they are the heirs of the deceased Shantiben. It is submitted that as demonstrated, Shantiben herself has no right under the Hindu law at the relevant time to inherit the properties of deceased Maganbhai and therefore, the question of claiming any right to inherit the properties left by the deceased Maganbhai by the heirs of the deceased Shantiben did not arise at all. It is also submitted that the learned Trial Court has committed an error in not appreciating that as per the averments made in the plaint, the common ancestor of the parties to the suit had expired on 12.3.1955 when according to the plaintiffs succession opened. The plaintiffs have claimed 1/2 share in the suit properties left by the deceased Maganbhai on his death on 12.3.1955, whereas the suit is filed only on 22.8.2007 i.e. after a lapse of more than 52 years from the date of succession is alleged to have opened to the plaintiffs. Thus, the suit is also barred by law of limitation and therefore, the plaint is liable to be rejected. In view of the aforesaid facts and circumstances of the case, the order passed by the learned Judge deserves to be quash and set aside.
4. Learned Senior Advocates for the applicants have placed reliance on the following judgments. They are as under :-
(i) T. Arivandandam Vs. T.V.
Satyapal & Anr., reported in AIR 1977 SC 2421.
(ii) I.T.C. Limited Vs. Debts Recovery Appellate Tribunal & Ors., reported in (1998) 2 SCC 70.
(iii) Raj Narain Sarin & Ors. Vs. Laxmi Devi & Ors., reported in (2002) 10 SCC 501.
(iv) Sopan Sukhdeo Sable & Ors. Vs. Assistant Charity Commissioner & Ors., reported in (2004) 3 SCC 137.
(v) Lalitaben wd/o Baldevbhai Manibhai Suthar Vs. Niruben Ramanbhai Suthar & Anr., reported in 2007(1) GLH 403.
(vi) Smt. Bagirathi & Ors. Vs. S. Manivanan & Anr., reported in AIR 2008 Madras 250.
(vii) Jageshwari Devi & Ors. Vs. Shatrughan Ram, reported in (2007) 15 SCC 52.
(viii) Ranjeet Mal Vs. Poonam Chand & Anr., reported in AIR 1983 Rajasthan 1.
(ix) Sukhpal Singh Vs. State of Rajasthan & Ors., reported in AIR 1998 Rajasthan 103.
(x) Purnmasi Yadav Vs. Narbedeshwar Tripathi & Ors., reported in AIR 1998 Allahabad 260.
(xi) Maharaj Shri Manvendrasinhji R. Jadeja Vs. Rajmata Vijaykunverba wd/o Maharaja Mahendrasinhji, reported in 1999(1) GLR 261.
(i) In T. Arivandandam Vs. T.V. Satyapal & Anr., reported in AIR 1977 SC 2421, the learned Senior Advocates have placed reliance on Para 5, which is as under:-
5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. 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 O. VII R. 11, C. P. C. taking care to see that the ground mentioned therein is fulfilled. And, if clear 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 O. X. C.P.C. 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. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi "It is dangerous to be too good."
(ii) In I.T.C. Limited Vs. Debts Recovery Appellate Tribunal & Ors., reported in (1998) 2 SCC 70, learned Senior Advocates have placed reliance on Para 12 and 13, which are as under:-
12. The first point here is whether the power to reject the plaint under Order 7 Rule 11 CPC can be exercised even after the framing of issues, and when the matter is posted for evidence. This point has arisen because the Division Bench of the High Court has referred to this aspect while dismissing the appeal.
13. We may state that in the context of Order 7 Rule 11 CPC, a contention that once issues have been framed, the matter has necessarily to go to trial has been clearly rejected by this Court in Azhar Hussain v. Rajiv Gandhi, 1986 Supp. SCC 315 (SCC p.324) as follows : (SCC para 12) In substance, the argument is that the court must proceed with the trial, record and evidence, and only after the trial ... is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court....
The abovesaid judgment which related to an election petition is clearly applicable to suits also and was followed in Samar Singh v. Kedar Nath, 1987 Supp. SCC
663. We therefore hold that the fact that issues have been framed in the suit cannot come in the way of consideration of this application filed by the appellant under Order 7 Rule 11 CPC.
(iii) Raj Narain Sarin & Ors. Vs. Laxmi Devi & Ors., reported in (2002) 10 SCC 501 is cited by the learned Senior Advocates in support of the submissions that if the plaint on perusal of it manifestly appears to be vexatious or meritless in the sense of not disclosing a clear right to sue, the Trial Court can exercise its power under Order 7 Rule 11 of the CPC.
(iv) In Sopan Sukhdeo Sable & Ors. Vs. Assistant Charity Commissioner & Ors., reported in (2004) 3 SCC 137, the Apex Court considered the nature and scope of Order 7 Rule 11 and held that Order 7 Rule 11 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised. The Trial Court can exercise the power at any stage of the suit i.e. before registering the plaint or after issuing summons to the defendant at any time before conclusion of the trial and also does not say in express terms about filing of a written statement for the purposes of deciding an application under clauses (a) and (d) of Order 7 Rule 11 of the Code. The averments in the plaint are germane. The pleas taken by the defendants would be wholly irrelevant at that stage. Instead the word shall is used clearly implying thereby that Order 7 Rule 11 casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in Order 7 Rule 11 even without intervention of the defendant. The Apex Court further held that the basic question to be decided while dealing with the application filed under Order 7 Rule 11(a) of the CPC is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get around Order 7 Rule 11. The Trial Court must remember that if on a meaningful and not formal reading of the plaint, it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11(a) taking care to see that the ground mentioned therein is fulfilled.
(v) In Lalitaben wd/o Baldevbhai Manibhai Suthar Vs. Niruben Ramanbhai Suthar & Anr., reported in 2007(1) GLH 403, the learned Single Judge of the High Court while considering Sections 6, 8 and 14 of Hindu Succession Act held as under:-
Before coming into force of Hindu Succession Act, 1956, succession amongst Hindu was governed by Sruti, Smruti and orthodox Hindu Law. Mansmruti was the source to provide that what would be the mode of succession. Mitakshara or Banaras law, Daybhag or Bengal Hindu Law were also to govern the succession. In Gujarat, succession could be governed by Mayukha School of Hindu Law. In each of the laws, daughter or widow of the deceased was not entitled to succession to the property left by the last male holder, be he a Karta of Joint Hindu Family or owner in his personal capacity. Mayukh Hindu Law which governs a part of Gujarat, talks of the Matiarchiel family and right of the woman in property, but to appreciate that the parties are governed by Mayukh law and the daughter or female would be entitled to succeed to the property. Such evidence is required to be brought on record by the person who claims succession through her father.
....It is trite to say that succession never remains in abeyance and on the death of last holder or the owner, it immediately opens and the property flows in favour of those who are entitled to succeed to the property under the law governing the field at the material time....
A person who was offered the property towards the maintenance, if was in possession and continued to be in possession till coming into force of the Hindu Succession Act, would become absolute owner of the property under S. 14 of the Hindu Succession Act. A person who simply had a right of maintenance, but was not given any property, would not be entitled to a partition of property after coming into force of the Hindu Succession Act, because, succession had already opened much before coming into force of the Hindu Succession Act. Hindu Succession Act, in fact, conferred rights in favour of those who had no right in the property, the Act did not revive the lost rights nor is retrospective in operation. Hindu Succession Act was simple to crystallize and codify the Hindu Law relating to succession. For the first time under the codified law, right was conferred upon widow, daughter, widow of the predeceased son and other females, who, otherwise, had no right in the property before coming into force of the Hindu Succession Act.
....S.6 would govern the field of succession after coming into force of Hindu Succession Act and would not reopen the subject which already came to an end.
(vi) In Smt. Bagirathi & Ors. Vs. S. Manivanan & Anr., reported in AIR 2008 Madras 250, a Division Bench of Madras High Court considered the provisions of Section 6 of Hindu Succession Act and held in Para 13, 14 and 15 as under:-
13. A careful reading of Section 6(1) read with 6(3) of the Hindu Succession (Amendment) Act clearly indicates that a daughter can be considered as a coparcener only if her father was a coparcener at the time of coming into force of the amended provision. It is of course true that for the purpose of considering whether the father is a coparcener or not, the restricted meaning of the expression partition as given in the explanation is to be attributed.
14. In the present case, admittedly the father of the present petitioners had expired in 1975.
Section 6(1) of the Act is prospective in the sense that a daughter is being treated as coparcener on and from the commencement of the Hindu Succession (Amendment) Act, 2005. If such provision is read along with Section 6(3), it becomes clear that if a Hindu dies after commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property shall devolve not by survivorship but by intestate succession as contemplated in the Act.
15. In the present case, the death of the father having taken place in 1975, succession itself opened in the year 1975 in accordance with the existing provisions contained in Section 6. If the contention of the petitioners is accepted, it would amount to giving retrospective effect to the provisions of Section 6 as amended in 2005. On the death of the father in 1975, the property had already vested with Class-I heirs including the daughters as contemplated in the unamended Section 6 of the Act. Even though the intention of the amended provision is to confer better rights on the daughters, it cannot be stretched to the extent of holding that the succession which had opened prior to coming into force of the amended Act are also required to be reopened. In this connection, we are also inclined to refer to the decision of M. Srinivasan, J., as His Lordship then was, reported in 1991(2) MLJ 199 (Sundarambal and others v. Deivanaayagam and others). While interpreting almost a similar provision, as contained in Section 29-A of the Hindu Succession Act, as introduced by the Tamil Nadu Amendment Act 1 of 1990, the learned Single Judge had made the following observations :-
14. ... Under sub-clause (1), the daughter of a coparcener shall become a coparcener in her own right by birth, thus enabling all daughters of a coparcener who were born even prior to 25th March, 1989 to become coparceners. In other words, if a male Hindu has a daughter born on any date prior to 25th March, 1989, she would also be a coparcener with him in the joint family when the Amendment came into force. But the necessary requisite is, the male Hindu should have been alive on the date of the coming into force of the Amended Act.
The section only makes a daughter a coparcener and not a sister. If a male Hindu had died before 25th March, 1989 leaving coparcenary property, then his daughter cannot claim to be a coparcener in the same manner as a son, as, on the date on which the Act came into force, her father was not alive. She had the status only as a sister-a-vis her brother and not a daughter on the date of the coming into force of the Amendment Act. ...
(vii) In Jageshwari Devi & Ors. Vs. Shatrughan Ram, reported in (2007) 15 SCC 52, the Apex Court considered the scope of Order 7 Rule 11(a) and held that non-disclosure of the cause of action is distinct from a defective cause of action. The former falls but the latter does not fall within the scope of Order 7 Rule 11(a). The latter is to be decided during the trial of the suit and therefore, the contention which was raised by the defendant that the disclosed cause of action was vague and incomplete and therefore, it could not be a ground for rejection of the plaint.
(viii) In Ranjeet Mal Vs. Poonam Chand & Anr., reported in AIR 1983 Rajasthan 1, the Hight Court has considered the provisions of Order 7 Rule 11(a) of the CPC and held that while deciding the application under Order 7 Rule 11(a), the Court has to consider as to whether the plaint discloses any cause of action or not and to find out from the allegations of the plaint itself as to whether it is bogus, wholly vexatious or frivolous litigation initiated under the garb of ingenious drafting of the plaint and to guard against the mischief of a litigant misusing the process of the Court by entering into a false litigation merely for the purpose of harassing the other party and obtaining undue advantage of the process of the Court by adopting tactics and in starting sham and shady actions.
(ix) In Sukhpal Singh Vs. State of Rajasthan and others, reported in AIR 1998 Rajasthan 103, the Hon'ble Rajasthan High Court while considering the provisions of Order 7 Rule 11 held in Para 25 as under:-
25. If in the light of the above, the instant case is examined, it is abundantly clear that if the facts stated, the grounds and allegations and the averments made therein are taken into consideration in totality, it is abundantly clear in sum and substance that the respondent No.3 plaintiff has made a grievance that the Will, on the basis of which the present petitioner defendant has got the mutation, is void being a forged and fabricated document as it had never been executed by their father Ishar Singh. If the Revenue Court comes to the conclusion that it was never executed by late (Shri) Ishwar Singh, it is not necessary for the Revenue Court to declare it a nullity as it can be simply ignored and in that situation, by ignoring the said Will, the other reliefs claimed by the respondent No.3 plaintiff can be granted by the Revenue Court as according to the averments in the plaint, neither the body nor mind of Shri Ishar Singh accompanied the alleged Will and the said instrument, being non est, is just to be ignored.
Moreover, this petition has arisen only against an order passed on the application filed by the petitioner defendant under Order 7, Rule 11, CPC and it is settled law that such an application cannot be entertained and allowed where the validity of a particular document is under challenge.
(x) In Purnmasi Yadav Vs. Narbedeshwar Tripathi and others, reported in AIR 1998 Allahabad 260, the Hon'ble Allahabad High Court has observed in Para 5 as under :-
5. The power under Order 7, Rule 11 speaks of rejection of plaint under four circumstances, the first one being non-disclosure of cause of action, and the last one is on a bar of suit under any provision of law. the other two grounds on which a plaint could be rejected relate to valuation and non-payment of Court fees, which are not matters concerned with the present case. For an order under Order 7, Rule 11, CPC it is the plaint and the plaint alone which is to be considered and if the plaint made out a case indicating a cause of action then the falsity of the claim would be a matter to be determined at the trial and if at all the suit was found to be vexatious or based on false assertion, the plaintiff would be liable for compensatory costs under S. 35-A, CPC. The judgment of the Supreme Court that was quoted by the Trial Judge also spoke that a meaningful reading of the plaint was necessary before rejecting a plaint under Order 7, Rule 11, CPC.
(xi) In Maharaj Shri Manvendrasinhji R. Jadeja Vs. Rajmata Vijaykunverba wd/o Maharaja Mahendrasinhji, reported in 1999(1) GLR 261, the Hon'ble Division Bench of this Court considered the provisions and scope of Order 7 Rule 11(a) of CPC and held in Para 14, 15 and 16 as under:-
14. Having noticed brief summary of the plaint and prayers earlier, it would be relevant to refer to the provisions of Order 7, R.11(a) of the CPC and the scope thereof. Order 7, R.11(a) of the CPC provides that the plaint shall be rejected in case where it does not disclose a cause of action. Order 7, R.11(a) of the CPC is mandatory and if it is found that the plaint does not disclose a cause of action, the Court has no option but to reject the plaint. To find out whether a plaint discloses a cause of action or not, the Court has to look only to the averments made in the plaint. When a plaint is based on a document filed along with the plaint, it can, however, be considered to ascertain if plaint discloses any cause of action. Cause of action means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. The words "cause of action" mean the whole bundle of material facts which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit. What is to be done by the Court at the stage of deciding as to whether the plaint discloses any cause of action or not is to find out from the allegation of the plaint itself as to whether a bogus, wholly vexatious or frivolous litigation is sought to be initiated under the garb of ingenuous drafting of the plaint or not because it is the duty of the Court to guard against the mischief of a litigant misusing the process of court by entering into a false litigation merely for the purpose of harassing the other party and to nip in the bud the litigation which is sham and shabby in character. In order to find out whether the plaint discloses a cause of action or not, the averments made in the plaint and documents annexed thereto should be scrutinised meaningfully and if on such scrutiny it is found that the plaint does not disclose cause of action, it has got to be rejected in view of the provisions of Order 7, R.11(a) of the CPC. When it is said that the Court should take into consideration the averments made in the plaint for the purpose of deciding the question whether the averments made in the plaint disclose cause of action or not, it does not mean that the Court is precluded from applying the statutory provisions or case-law to the averments made in the plaint. If an assertion made in the plaint is contrary to statutory law or case-law, it cannot be considered as disclosing cause of action. In ITC Ltd. (supra), bank had filed suit against the appellant and others and claimed relief for a sum of Rs.52,59,639-66 ps. After the suit was filed, it was transferred to the Debt Recovery Tribunal. Before the Tribunal, an application was filed by the appellant under Order 7, R.11 of the CPC for rejecting the plaint, so far as appellant was concerned, on the ground that no valid cause of action had been shown against the appellant. That application was rejected by the Tribunal. Against the said order, an appeal was filed before the Debts Recovery Appellate Tribunal. The appeal was dismissed in limine. Thereupon a writ petition was filed by the appellant, which was dismissed holding that the question should be decided at the trial. Against that judgment, the appellant had filed an appeal before the Division Bench of the High Court, which was also dismissed. The matter was thereafter carried before the Supreme Court. After taking into consideration the decided cases on the point whether there was fraudulent movement of goods under which letter of credit was obtained which in turn entitled the bank to file the suit, the Supreme Court held that that point was already decided by decision of the Supreme Court in U.P. Co-operative Federation's case and therefore, the allegation of non-supply of goods by the sellers to the buyers did not by itself amount, in law, to a plea of "fraud" as understood in this branch of the law and hence by merely characterising alleged non-movement of goods as "fraud", the bank was not entitled to claim that there was a cause of action based on fraud or misrepresentation. While allowing the appeal, what is emphasised by the Supreme Court is that the question whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7, R.11 of the CPC has to be decided with reference to averments made in the plaint and clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. In view of this decision of the Supreme Court, it is evident that if something purely illusory has been stated with a view to get out of Order 7, R.11 of the CPC by resorting to clever drafting, it cannot be said that the plaint discloses a cause of action and if a clear right to sue is not shown in the plaint, it is liable to be rejected.
15. In the light of scope of Order 7, R.11(a) of the CPC, we would now proceed to examine different submissions made on behalf of the appellant. The submission that the plaint was presented on December 26,1978, whereas issues for determination were framed by the learned Judge on July 21, 1981 and therefore the application filed by the respondent under Order 7, R.11(a) of the CPC on June 26, 1996 should not have been entertained at such a long distance of time, has no substance. As noted earlier, the provisions of Order 7, R.11(a) of the Code of Civil Procedure are mandatory in nature. It is the duty of the Court to reject the plaint which does not disclose cause of action. If a plaint can be rejected at threshold of the proceedings, we do not see any reason as to why it cannot be rejected at any subsequent stage of the proceedings. Even if after framing of issues, the basic defect in the plaint persists, namely, absence of cause of action, it is always open to the contesting defendants to insist that the plaint be rejected under Order 7, R.11 of the CPC and the Court would be acting within its jurisdiction in considering such a plea. Order 7, R.11 of the CPC does not place any restriction or limitation on the exercise of the court's power. It does not either expressly or by necessary implication provide that power under Order 7, R.11 of the CPC should be exercised at a particular stage only. In the view we are taking, we are fortified by the judgment of the Supreme Court rendered in the case of ITC Ltd. (supra). Therein, the suit was filed by the Bank in the year 1985. In 1995, it was transferred to Debt Recovery Tribunal and thereafter an application was filed by the appellant under the provisions of Order 7, R.11 of the CPC for rejection of the plaint as not disclosing any cause of action against the appellant. The application filed by the appellant was rejected not only by the Tribunal and Appellate Tribunal, but also by the High Court. When the matter reached before the Supreme Court in the year 1997, it was contended that the power under Order 7, R.11 of the CPC should not be exercised after such a long lapse of time, more particularly when issues were framed. That plea has been negatived by the Supreme Court in following terms:-
"13. We may state that in the context of Order 7 Rule 11 CPC, a contention that once issues have been framed, the matter has necessarily to go to trial has been clearly rejected by this Court in Azhar Hussain v. Rajiv Gandhi (SCC p.324) as follows: (SCC para 12) "In substance, the argument is that the Court must proceed with the trial, record the evidence, and only after the trial...is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court..."
The abovesaid judgment which related to an election petition is clearly applicable to suits also and was followed in Samar Singh v. Kedar Nath. We therefore hold that the fact that issues have been framed in the suit cannot come in the way of consideration of this application filed by the appellant under Order 7 Rule 11 CPC."
16. In view of settled legal position, plea that powers under Order 7, R.11(a) of the CPC should not have been exercised after framing of issue cannot be upheld and is hereby rejected.
Thus, it is submitted by the learned Senior Advocates that considering the ratio laid down in the above-mentioned judgments, the Revision Application deserves to be allowed and the order passed by the Trial Court be set aside.
5. Mr Amit V Thakkar, learned advocate for the opponents has placed reliance on the following judgments. They are as under :-
(i) Liverpool & London S.P. & I Asson. Ltd. Vs. M.V. Sea Success I & Anr., reported in JT 2003(9) SC 218.
(ii) British Airways Vs. Art Works Export Ltd. & Ors., reported in AIR 1986 Calcutta 120.
(iii) State of Orissa Vs. Klockner and Company & Ors., reported in AIR 1996 SC 2140.
(iv) Prem Lala Nahata & Anr. Vs. Chandi Prasad Sikaria, reported in AIR 2007 SC 1247.
(v) Kamala & Ors. Vs. K.T. Eshwara Sa & Ors., reported in AIR 2008 SC 3174.
(vi) Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, reported in AIR 2003 SC
189.
(vii) Vidya Devi alias Vidya Vati Vs. Prem Prakash & Ors., reported in AIR 1995 SC 1789.
(viii) Virender Nath Gautam Vs. Satpal Singh & Ors., reported in (2007) 3 SCC 617.
(i) In Liverpool & London S.P. & I Asson. Ltd. Vs. M.V. Sea Success I & Anr., reported in JT 2003(9) SC 218, the Apex Court considered the provisions of Order 7 Rule 11(a) of the CPC and held as under :-
It may be true that Order 7 Rule 11(a) although authorises the court to reject a plaint on failure on the part of the plaintiff to disclose a cause of action but the same would not mean that the averments made therein or a document upon which reliance has been placed although discloses a cause of action, the plaint would be rejected on the ground that such averments are not sufficient to prove the facts stated therein for the purpose of obtaining reliefs claimed in the suit. The approach adopted by the High Court, in this behalf, in our opinion, is not correct. (Para 145) In ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown.
(Para 150) The approach of the High Court, in our considered opinion, is not correct. For the purpose of rejecting a plaint, it is not necessary to consider whether the averments made in the plaint prove the factum that the defendant no.1 Sea Success-I is a sister ship of Sea Glory and Sea Ranger or the said two ships are beneficially owned by the defendant no.2. The reasons which have been assigned in support of the said aforementioned finding that the ship is a valuable commercial chattel and her arrest undeservingly prejudices third parties as well as affect the interest of owner and others is a question which must be gone into when passing a final order as regard interim arrest of ship or otherwise. For the aforementioned purpose the vessel herein could file an application for vacation of stay. While considering such an application, the court was entitled to consider not only a prima facie case but also the elements of balance of convenience and irreparable injury involved in the matter. In such a situation and particularly when both the parties disclose their documents which are in their possession, the court would be in a position to ascertain even prima facie as to whether the club has been able to make out that Sea Glory and Sea Ranger are sister vessels of the vessel . (Para 153) The reason for the aforementioned conclusion is that if a legal question is raised by the defendant in the written statement, it does not mean that the same has to be decided only by way of an application under Order 7 Rule 11 of the Code of Civil Procedure which may amount to pre-judging the matter. (Para 154) Furthermore, the question as to whether the asset of a 100% subsidy can be treated as an asset of the parent company would again depend upon the fact situation of each case. (Para 155)
(ii) In British Airways Vs. Art Works Export Ltd. & Ors., reported in AIR 1986 Calcutta 120, The Hon'ble Calcutta High Court considered the provisions of Order 7 Rule 11(a) of the CPC and held in Para 12 and 13 as under :-
12. We are unable to accept the contention of the learned Counsel for the petitioner.
Under Cl. (a) of O.7, R.11, the plaint shall be rejected where it does not disclose a cause of action. The plea of the petitioner that there is no cause of action for the suit is not same as to say the plaint does not disclose any cause of action, which is a ground for the rejection of the plaint. Indeed, the plaint discloses a cause of action. The correctness or otherwise of the allegations constituting the cause of action is beyond the purview of Cl.(a) of O.7, R.11. It is not the case of the defendant petitioner that the plaint does not disclose a cause of action but, as stated already, its case is that there is no cause of action for the suit which is not a ground for rejection of plaint under O.7, R.11 of the Civil P.C. This view finds support from a Bench decision of the Assam High Court in Santi Ranjan Das Gupta v. Dasuram Mirzamal, AIR 1957 Assam 49, where it has been laid down that a plea that there was no cause of action for the suit is something different from saying that the plaint itself did not disclose any cause of action. There is, therefore, no substance in the contention made in the instant case on behalf of the petitioner that the learned Judge should have rejected the plaint on the ground that there is no subsisting cause of action for the suit.
13. The second ground that has been urged on behalf of the petitioner is that the suit is barred by the provision of Art. 30(1) of the Second Schedule to the Act. It is submitted that in view of Art. 30(1), the right of the plaintiff opposite party No.1 to sue for damages stood extinguished on the date the suit was filed. On the other hand, it is submitted by Mr. Chatterjee, learned Counsel appearing on behalf of the plaintiff opposite party No.1 that in view of Art.30(2) of the Second Schedule to the Act, the right of the plaintiff to sue the defendant petitioner for damages was, prima facie, subsisting on the date the suit was filed. In other words, it is submitted that as under Art. 30(2), the method of calculating the period of limitation shall be determined by the law of the Court seized of the case, the provision of the Limitation Act, 1963 will apply for the purpose of computing the period of two years mentioned in Art.30(1). In our opinion, in view of the provision of Art.30(2), it requires some consideration whether the suit is barred by Art. 30(1) or not. It may be stated here that in the plaint the plaintiff opposite party No.1 has pleaded acknowledgment by the defendant petitioner of its liability, and that the period of two years referred to in Art.30(1) should be computed after taking into consideration such acknowledgment. It is, therefore, difficult to say at this stage whether the suit is barred by the provision of Art. 30(1) or not. Where on the face of the plaint a suit appears to be barred by any law, the Court shall dismiss the suit. But where it does not so appear, but requires further consideration or, in other words, if there be any doubt or if the Court is not sure and certain that the suit is barred by some law, the Court cannot reject the plaint under Cl.(d) of O.7, R.11 of the Civil P.C. Both the grounds as embodied in Cls.(a) and (d) of O.7, R.11 must appear on the face of the plaint. In the instant case, however, it cannot be said that the plea of the defendant petitioner that the suit is barred by the provision of Art.30(1) of the Second Schedule to the Act appears on the face of the plaint in view of Art. 30(1) read with Art. 30(2) of the Second Schedule to the Act.
(iii) In State of Orissa Vs. Klockner and Company & Ors., reported in AIR 1996 SC 2140, the Apex Court considered the scope of Order 7 Rule 11(a) and (d) and held in Para 24 as under :-
24. Now coming to Special Leave Petition (C) No. 19846/95, this petition is filed against the judgment and order of the High Court of Orissa at Cuttack in First Appeal No. 14/95 dated 12-5-1995. By the Order under appeal, the High Court has reversed the Order of the learned Subordinate Judge. Bhubaneswar dated 26-3-94, by which the learned Subordinate Judge accepting an application filed under Order 7, Rule 11, C.P.C.
rejected the plaint in title suit No. 231/92 filed by the first respondent in Special Leave Petition. The learned single Judge of the High Court while reversing the Order of the learned Subordinate Judge observed as follows :-
"In the present case on a fair reading of the petition filed by the defendant No.1 under Order 7, Rule 11 of C.P.C. it is clear that the case of the applicant is that the plaintiff has no cause of action to file the suit. It is not specifically pleaded by the applicant that the plaint does not disclose any cause of action. The learned trial Judge has also not recorded any specified finding to this effect. From the discussions in the order it appears that the learned trial Judge has not maintained the distinction between the plea that there was no cause of action for the suit and the plea that the plaint does not disclose a cause of action. No specific reason for ground is stated in the order in support of the finding that the plaint is to be rejected under 0.7, R.11(a). From the averments in the plaint, it is clear that the plaintiff has pleaded a cause of action for filing the suit seeking the reliefs stated in it. That is not to say that the plaintiff has cause of action to file the suit for the reliefs sought that question is to be determined on the basis of materials (other than the plaint) which may be produced by the parties at appropriate stage in the suit. For the limited purpose of determining the question whether the suit is to be wiped out under Order 7, Rule 11(1) or not the averments in the plaint are only to be looked into. The position noted above is also clear from the petition filed by defendant No. 1 under Order 7, Rule 11 in which the thrust of the case pleaded is that on the stipulation in the agreement of 20-4-82 the plaintiff is not entitled to file a suit seeking any of the reliefs stated in the plaint.
10. Coming to the question whether the plaint is to be rejected under Clause (d) of Rule 11 of Order 7, the Supreme Court in the case of Orient Transport Co. (AIR 1987 SC 2289) (supra) has clearly laid down that there is a distinction between a case in which the validity, effect and existence of the arbitration agreement is challenged and suit in which the validity of the contract which contains an arbitration clause is challenged. The bar to suit under Section 32 of the Arbitration Act extends to a case where the existence, effect or validity of an arbitration agreement is challenged and not to the latter type of the suit. On this question too the learned trial Judge has failed to maintain the distinction between the two types of cases. He has failed to notice that the case pleaded by the plaintiff is that the entire agreement including the arbitration clause is null and void and unenforceable and not that the arbitration agreement is null and void.
11. From the lower Court record in the case and also the records in a similar suit filed by the State of Orissa. Title Suit No. 152 of 1993 in which O.M.C. Ltd. is a defendant, it appears that in both the cases the defendant No.1
- Klockner and Co. filed applications under Section 3 of the Foreign Awards (Recognition and Enforcement) Act, 1961. Such application presupposes that the applicant accepts the position that the said applies to the case and the Arbitration Act, 1940 has no application to the case. Under the Foreign Awards Act, there is no specific provision for bar of suit. Further, from the averments in the application filed under Order 7, Rule 11 of C.P.C. it is clear that the main case pleaded by the applicant was that the parties had agreed that the Swiss Law will be applicable to the contract as well as the arbitration agreement and the venue of arbitration will be at London and, therefore, the Indian Law in general and the arbitration Act in particular, have no application to the case. Alternatively the applicant has pleaded that even assuming that the Indian Law of Arbitration applies to the case then the suit is barred under Section 32 of the Act. The learned trial Judge does not appear to have considered the main case pleaded by the applicant but disposed the petition on consideration of the alternative case pleaded by it. Therefore this finding against bar of the suit under Order 7, Rule 11
(d) is also vitiated.
12. On the analysis and discussions in the foregoing paragraphs, it is my considered view that the order passed by the learned trial Judge rejecting the plaint under Order 7, Rule 11 (a) and (d) of C.P.C. is unsustainable and has to be set aside. Accordingly the appeal is allowed and the order dated 26-3-1994 of the Civil Judge (Senior Division), Bhubaneswar in Misc. Case No. 75 of 1993 is set aside. There will be no order for costs of this Court.
After hearing the learned counsel on both sides and after carefully perusing the relevant pleadings, we do think that the High Court has committed any error in rejecting the application of the appellant under Order 7, Rule 11. We accept the view taken by the High Court and consequently find no case for interference.
In the result all the Civil Appeals are dismissed with costs and Special Leave petition is dismissed without costs.
(iv) In Prem Lala Nahata & Anr. Vs. Chandi Prasad Sikaria, reported in AIR 2007 SC 1247, the Apex Court while considering the provisions of Order 7 Rule 11(d) held in Para 14 and 15 as under:-
14. Order VII, Rule 11
(d) speaks of the suit being "barred by any law". According to the Black's Law Dictionary, bar means, a plea arresting a law suit or legal claim. It means as a verb, to prevent by legal objection.
According to Ramanatha Aiyar's Law Lexicon, 'bar' is that which obstructs entry or egress; to exclude from consideration. It is therefore necessary to see whether a suit bad for misjoinder of parties or of causes of action is excluded from consideration or is barred entry for adjudication. As pointed out already, on the scheme of the Code, there is no such prohibition or a prevention at the entry of a suit defective for misjoinder of parties or of causes of action. The court is still competent to try and decide the suit, though the court may also be competent to tell the plaintiffs either to elect to proceed at the instance of one of the plaintiffs or to proceed with one of the causes of action. On the scheme of the Code of Civil Procedure, it cannot therefore be held that a suit barred for misjoinder of parties or of causes of action is barred by a law, here the Code. This may be contrasted with the failure to comply with Section 80 of the Code. In a case not covered by sub-section (2) of Section 80, it is provided in sub-section (1) of Section 80 that "no suit shall be instituted". This is therefore a bar to the institution of the suit and that is why courts have taken the view that in a case where notice under Section 80 of the Code is mandatory, if the averments in the plaint indicate the absence of a notice, the plaint is liable to be rejected. For, in that case, the entertaining of the suit would be barred by Section 80 of the Code. The same would be the position when a suit hit by Section 86 of the Code is filed without pleading the obtaining of consent of the Central Government if the suit is not for rent from a tenant. Not only are there no words of such import in Order I or Order II but on the other hand, Rule 9 of Order I, Rules 1 and 3 of Order I, and Rules 3 and 6 of Order II clearly suggest that it is open to the court to proceed with the suit notwithstanding the defect of misjoinder of parties or misjoinder of causes of action and if the suit results in a decision, the same could not be set aside in appeal, merely on that ground, in view of Section 99 of the Code, unless the conditions of Section 99 are satisfied. Therefore, by no stretch of imagination, can a suit bad for misjoinder of parties or misjoinder of causes of action be held to be barred by any law within the meaning of Order VII, Rule 11(d) of the Code.
15. Thus, when one considers Order VII, Rule 11 of the Code with particular reference to Clause (d), it is difficult to say that a suit which is bad for misjoinder of parties or misjoinder of causes of action, is a suit barred by any law. A procedural objection to the impleading of parties or to the joinder of causes of action or the frame of the suit, could be successfully urged only as a procedural objection which may enable the Court either to permit the continuance of the suit as it is or to direct the plaintiff or plaintiffs to elect to proceed with a part of the suit or even to try the causes of action joined in the suit as separate suits.
(v) In Kamala & Ors. Vs. K.T. Eshwara Sa & Ors., reported in AIR 2008 SC 3174, the Apex Court while considering the provisions of Order 7 Rule 11(d) as well as (a) and held in Para 15, 16 and 23 as under :-
15. Order VII, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order VII, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order VII, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or sub traction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order VII, Rule 11 of the Code is one, Order XIV, Rule 2 is another.
16. For the purpose of invoking Order VII, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision.
The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.
It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.
The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact of law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for registration of plaint should be entertained.
23. One of the grounds taken in the counter-affidavit of the respondent Nos. 10, 11, 13 and 17 under Order VII, Rule 11(d) of the Code is as under :
"16. So far as item No. 8 of the Schedule-A, the subsequent purchases have made flats and 80% have been sold to third party and the third-party interest have been created and third parties are not made parties before the Court. Hence, the suit is bad in law for misjoinder and non-joinder of necessary parties. Moreover, third party's interest has been created and separate khatas have been issued."
(vi) In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, reported in AIR 2003 SC 189, the Apex Court while considering the provisions of Order 7 Rule 11(e) and (f) held in Para 16 as under :-
16. Our attention has been drawn to Order 7, Rule 11 to which clauses (e) and (f) have been added which enable the Court to reject the plaint where it is not filed in duplicate or where the plaintiff fails to comply with the provisions of Rule 9 of Order 7. It appears to us that the said clauses being procedural would not require the automatic rejection of the plaint at the first instance. If there is any defect as contemplated by Rule 11(e) or non-compliance as referred to in Rule 11(f), the Court should ordinarily give an opportunity for rectifying the defects, and in the event of the same not being done the Court will have the liberty or the right to reject the plaint.
(vii) In Vidya Devi alias Vidya Vati Vs. Prem Prakash & Ors., reported in AIR 1995 SC 1789, the Apex Court considered Section 186 of the Delhi Land Reforms Act and Sections 64 and 65 of the Limitation Act and held in Para 21 and 22 as under:-
21. The legislature has not prescribed any period of limitation for filing a suit for partition because partition is an incident attached to the property and there is always a running cause of action for seeking partition by one of the co-sharers if and when he decides not to keep his share joint with other co-sharers. Since the filing of the suit is wholly dependent upon the will of the co-sharer, the period of limitation, specially the date or time from which such period would commence, could not have been possibly provided for by the legislature and, therefore, in this Act also a period of limitation, so far as suits for partition are concerned, has not been prescribed. This, however, does not mean that a co-sharer who is arrayed as a defendant in the suit cannot raise the plea of adverse possession against the co-sharer who has come before the Court as a plaintiff seeking partition of his share in the joint property.
22. Normally, where the property is joint, co-sharers are the representatives of each another. The co-sharer who might be in possession of the joint property shall be deemed to be in possession on behalf of all the co-sharers. As such, it would be difficult to raise the plea of adverse possession by one co-sharer against the other. But if the co-sharer or the joint owner had been professing hostile title as against other co-sharers openly and to the knowledge of other joint owners, he can, provided the hostile title or possession has continued uninterruptedly for the whole period prescribed for recovery of possession, legitimately acquire title by adverse possession and can plead such title in defence to claim for partition.
"Adverse possession"
means hostile possession, that is, a possession which is expressly in denial of the title of the true owner. (See Gaya Parshad Dikshit v. Nirmal Chander, AIR 1984 SC 930). The denial of title of the true owner is a sign of adverse possession. In Ezaz Ali v. Special Manager, Court of Wards, AIR 1935 PC (at p.56), it was observed:
"The principle of law is firmly established that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed."
(viii) In Virender Nath Gautam Vs. Satpal Singh & Ors., reported in (2007) 3 SCC 617, the Apex Court observed in Para 51 and 52 as under :-
51. In our considered opinion, material facts which are required to be pleaded in the election petition as required by Section 83(1) of the Act read with Order 7 Rule 11(a) of the Code have been pleaded by the election petitioner, cause of action has been disclosed in the election petition and, hence, the petition could not have been dismissed by the High Court. The impugned order of the High Court suffers from infirmity and cannot be sustained.
52. The High Court, in our considered opinion, stepped into prohibited area of considering correctness of allegations and evidence in support of averments by entering into the merits of the case which would be permissible only at the stage of trial of the election petition and not at the stage of consideration whether the election petition was maintainable and dismissed the petition.
The said action, therefore, cannot be upheld and the order deserves to be set aside.
6. Mr Amit V Thakkar, learned advocate for the opponents submitted that the learned Trial Judge has not committed any error which would call for interference in the Revision Application preferred under Section 115 of the Code. The learned Trial Judge has rightly passed the order below application Exh.47 and directed that proper Court fee in view of the prayer under Order 7 Rule 11(b) and (c) is required to be carried out within a period of 15 days and the same was considered at length by the learned Judge. While passing the aforesaid order, the learned Trial Judge has considered in an exhaustive manner all the contentions taken up by both the parties and there is no infirmity or illegality in the order passed by the learned Trial Judge which would call for interference while exercising the powers under Section 115 of the Code. Even the provisions of Order 7 Rule 11(a) and (d) as contended by the applicants cannot be attracted in the facts and circumstances of the present case and therefore, the learned Judge has rightly rejected the application for rejection of plaint as provided under Order 7 Rule 11(a) and (d) of the Code and as no infirmity or illegality is caused by the learned Judge while passing the order below application Exh.47, the Revision Application deserves to be rejected as it is devoid of merits.
7. I have heard Mr Mihir Thakore and Mr PC Kavina, learned Senior Advocates with Mr AB Munshi for the applicants original defendants and Mr Amit V Thakkar, learned advocate for the opponents original plaintiffs. I have also considered the judgments cited by the learned counsel of both the sides and there is no dispute about the ratio or proposition laid down in those judgments. The order passed below Exh.47 in Regular Civil Suit No.397 of 2007 by the learned 7th Additional Senior Civil Judge and JMFC, Surat dated 2.2.2009 is also taken into consideration by me.
8. The original plaintiffs filed the suit for declaration and injunction against the defendants, wherein the application was given by the present applicants original defendants under Order 7 Rule 11(a),
(b) and (d) of the Code. Order 7 Rule 11(a), (b) and (d) of the Code is reproduced hereinbelow :-
(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;
(d) where the suit appears from the statement in the plaint to be barred by any law:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers 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 from correcting the valuation or supplying the requisite stamp-papers, 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.
9. The learned Judge has considered the provisions of Order 7 Rule 11(a),
(c) and (d) and held that on perusal of Order 7 Rule 11(a) if the suit does not disclose a cause of action then it is liable to be rejected. On perusal of Para 8 of the suit, the plaintiffs have disclosed the fact as to when the cause of action had arisen and as per the say of the plaintiffs, the cause of action took place in August 2007 when the defendants made an attempt to frustrate the right of the plaintiffs in the suit lands. The plaintiffs came to know about the aforesaid fact in August 2007. The defendants also made an attempt to dispose of the land or alienate the land by sale. The Court took into consideration the averments made in Para 8 of the plaint and held that the cause of action had arisen in August 2007 and on perusal of the sale deed, it becomes clear and therefore, the Court came to the conclusion that there is no breach of Order 7 Rule 11(a) of the Code. It is also contended by the defendants that Maganbhai Bhagubhai Patel expired on 12.3.1955 and at that time, Hindu Succession Act was not in force. It came into force on 17.6.1956 and prior to 17.6.1956, Hindu law was in force by which the daughters were not given any share in the property of their father. In view of the above-mentioned facts, Shantiben had no right in the property of her father. The Court took into consideration Articles 218, 220, 213, 223(a)(4) and 230(6). The suit filed by the plaintiffs cannot be rejected under the provisions of Order 7 Rule 11 of the Code as contended in the application. Considering the submissions canvassed by both the sides, the learned Judge held how the property in question of the deceased Maganbhai Bhagubhai Patel came into inheritance and how the entries were made in the revenue record is a matter of evidence and therefore, an opportunity is required to be given to the plaintiffs and therefore, at the outset, the application cannot be rejected under Order 7 Rule 11(d) of the Code and the provisions of Order 7 Rule 11(d) cannot be made applicable. With regard to the contention raised by the present petitioner the original defendants about the limitation, it is observed by the learned Judge that the defendants gave the application vide Exh.35 contending inter-alia that the suit filed by the plaintiffs is barred by the provisions of Limitation Act. The application was heard by the Court and it was rejected over which Review Application was preferred and the same was also rejected. Thereafter, the defendants filed Special Civil Application No.10284 of 2008 in the Hon'ble Gujarat High Court. The Hon'ble Gujarat High Court held that the application below Exh.47 is required to be decided on merits. The learned Judge held that in the present case, Maganbhai Bhagubhai Patel expired in the year 1955 and the mother of the plaintiffs Shantiben expired on 19.1.2000. It has been contended in the application that when the attempt was made to frustrate the right of the defendants and an attempt was made to alienate the suit land, the cause of action had arisen. However, the learned Judge held that it is a matter of record and evidence is required to be adduced and opportunity is required to be given to both the sides and whether the suit of the plaintiff is barred by law of limitation is a mixed question of law and fact and whether the plaintiffs have got any right in the suit land is a matter of evidence and therefore, that prayer was also rejected by the learned Judge while passing the order below Exh.47.
10. It is not in dispute that in the present case, Maganbhai Bhagubhai Patel expired in the year 1955 and the mother of the plaintiffs expired on 19.1.2000. When Maganbhai Bhagubhai Patel expired on 12.3.1955, Hindu Succession Act was not in force and it came into force on 17.6.1956 Therefore, the provisions of Hindu law were applicable when Maganbhai Bhagubhai Patel expired on 12.3.1955 and naturally, the provisions of Hindu law and the inheritance or succession would be governed by the provisions of Hindu law. When the common ancestor of the parties to the suit expired on 12.3.1955, on his death, the properties of the deceased Maganbhai Bhagubhai Patel were inherited by his son Ramubhai to the exclusion of his sister Shantiben. Prior to the enactment of Hindu Succession Act, Shantiben who is the daughter of Maganbhai Bhagubhai Patel had no right of inheritance under the Hindu law. Even as per the averment made by the opponents i.e. the original plaintiffs that Shantiben daughter of Maganbhai Bhagubhai Patel was entitled to the share in the property left by the deceased Maganbhai Bhagubhai Patel on his death on 12.3.1955 but as per the provisions of Hindu law which was in force on the death of Maganbhai Bhagubhai Patel, she was not entitled to a share in the said properties and therefore, the question of claiming any right to inherit the properties left by the deceased Maganbhai Bhagubhai Patel by the heirs of the deceased Shantiben did not arise at all and therefore, as such the plaintiffs had no cause of action to file the present suit. As soon as the death of common ancestor of the parties took place on 12.3.1955, the succession opened and the plaintiffs have claimed 1/2 share in the suit properties left by the deceased Maganbhai Bhagubhai Patel on his death on 12.3.1955. The suit was filed on 22.8.2007 after lapse of 52 years from the date on which the succession is opened to the plaintiffs. In view of the aforesaid facts and circumstances, the suit is also barred by law of limitation. On perusal of the reasoning given by the learned Judge, it has been observed by the learned Judge in Para 7 and 8 that both the parties are required to adduce the evidence in order to prove their case and therefore, the question which was raised in the application below Exh.47 for rejecting the plaint under the provisions of Order 7 Rule 11(a), (c) and (d) cannot be considered merely on the basis of the averments made in the application and the reply filed by the other side. Even the plaint was not sufficiently stamped and therefore, it was liable to be rejected as provided under Order 7 Rule 11(c). The learned Judge on perusal of the reasonings assigned by him has not taken into consideration the aforesaid aspect in its true perspective as well as the applicability of Hindu Succession Act and the provisions of Hindu law at the relevant time when the succession opened in favour of the plaintiffs i.e. after the death of Maganbhai Bhagubhai Patel way back on 12.3.1955 while the suit is filed in 2007. It has been held by the learned Judge that certain documents and the revenue entries are required to be considered in deciding inheritance of the deceased Maganbhai Bhagubhai Patel and since it is a matter of evidence, it cannot be decided only on the basis of the application and the reply given by the other side. However, in considering the clear position of law, the learned Trial Judge has committed error in not rejecting the application under the provisions of Order 7 Rule 11(a), (b) and (d) as prayed for in the application.
11. For the foregoing reasons and in view of the clear position as narrated hereinabove, there is substantial force in the submissions canvassed by the learned counsel for the applicants that the application preferred under Order 7 Rule 11(a), (c) and (d) requires to be allowed.
12. For the foregoing reasons, the Civil Revision Application succeeds and the order passed by the learned 7th Additional Senior Civil Judge and JMFC, Surat below application Exh.47 is quashed and set aside and the application Exh.47 is allowed in toto and the plaint for the reasons stated hereinabove being Regular Civil Suit No.397 of 2007 is rejected in view of the clear provisions of Order 7 Rule 11(a), (c) and (d).
[H.B.ANTANI, J.] After pronouncement of the judgment, learned advocate Mr Amit Thakkar submits that as he wants to approach the higher forum to ventilate his grievances against the order passed by this Court, he prays for stay of operation of this order for a period of six weeks. Learned advocate for the other side strongly objects to this prayer. However, considering the facts and circumstances, the order passed by this Court is stayed for a period of six weeks from today.
[H.B.ANTANI, J.] mrpandya Top