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1983 DIGILAW 185 (KAR)

JANARDHANA v. LALITHA

1983-08-08

G.N.SABHAHIT, R.S.MAHENDRA

body1983
SABHAHIT, J. ( 1 ) THIS appeal by the husband is directed against the judgment and order dated 31-1-1981 passed by the I Addl. Civil judge, Mangalore, in MC No. 9/78 on his file, dismissing the petition under Or. 7, r. 11 of the CPC. ( 2 ) THE husband instituted a petition for obtaining a decree that his marriage with the respondent in the petition was a nullity as the respondent was suffering from unsoundness of mind and that the marriage was brought about by practising fraud on him by concealing such fact. ( 3 ) THE case was registered at MC No. 9/78 and notice was served on the respondent. On entering appearance her counsel filed the statement of objection and thereafter the matter was fixed for evidence. It was adjourned from time to time for adducing evidence- On 30 9-1980 the husband's evidence was commenced before learned Civil Judge. It continued on 7-10-1980, 28-10-1980 and 4-11-1980 and it was further adjourned for evidence on 11-8-1980 oil which date the learned Civil judge stopped further evidence of the petitioner and issued notice to the petitioner why his petition should not be dismissed under Or. 7, R. 11 of the CPC and it was fixed for hearing on 2-12-1980, on which date the counsel appearing for the petitioner husband submitted to the Court that he had no argument to advance since the Court had already made up its mind to reject the petition. Thereupon, the learned Civil Judge proceeded to pass the impugned order on 31-1-1981 rejecting the petition of the husband for a decree of annulment of the marriage. Aggrieved by the said judgment and order, the petitioner-husband has instituted the above appeal before this Court. ( 4 ) THE learned counsel for the appellant submitted that the learned Civil Judge was not justified in stopping the evidence of the petitioner-husband and proceeding to hear on the question of rejection of the petition under Or. 7, R. 11 of the CPC and in rejecting the petition. ( 5 ) THE sole point, therefore, that arises for our consideration in this appeal is : whether the learned Civil Judge was justified in rejecting the plaint at that stage under Or. 7, R. 11 of the CPC ? ( 6 ) OR. 7, R. 11 of the CPC and in rejecting the petition. ( 5 ) THE sole point, therefore, that arises for our consideration in this appeal is : whether the learned Civil Judge was justified in rejecting the plaint at that stage under Or. 7, R. 11 of the CPC ? ( 6 ) OR. 7, R. 11 of the CPC reads : "rejection of plaint:-The plaint shall be rejected in following cases:- (1) (a) Where it does not disclose a cause of action; (b ). . . . (c ). . . . A proviso is also added to this Rule by the Amending Act of 1976. ( 7 ) THUS, it is obvious by reading Or. 7, r, 11 of the CPC, that a plaint shall be rejected among other things where it does not disclose a cause of action. There is difference of opinion as to the stage at whien the plaint should be rejected among different High Courts. In Sadhu v. Dhirendranath (1), it is held that it is the duty of the Court under Or. 7, R. 11 of the CPC to examine the plaint before issuing summonses and to ascertain whether a::y cause of action is pleaded and whether any relief is claimed against the defendants, and to determine whether the plaint should be rejected or returned for amendment. In ramchandra v Gour (2), it is held that where (he plaint was admitted as duly stamped, the suit could not be dismissed udder this rule at the stage of arguments on the ground that the Court fee paid was insufficient. ( 8 ) IN Kishore v. Sabdal (3) it was held that the rule may be applied at any stage of a suit and plaint could be rejected under the rule, even after it has been numbered and registered as a suit. All the same it is necessary that the power to reject the plaint or to return it for amendment should not be exercised except in a clear case. If there is any serious question to be decided in the suit the proper course is to let the suit proceed at least till the stage of written statement and discovery and then determine the matter on a preliminary issue (vide Secretary of State v. Golabrai (4) ). If there is any serious question to be decided in the suit the proper course is to let the suit proceed at least till the stage of written statement and discovery and then determine the matter on a preliminary issue (vide Secretary of State v. Golabrai (4) ). In Kalawathi Devi v, Chandra prakash (5), it is held on a comparison of the language of this rule with that of R. 10, that rejection under the rule can only be at the preliminary stage. In Devanarayan v, State of Bombay (6), it is laid down that the plaint cannot be rejected after issues are framed ( 9 ) THE Supreme Court of India, however, in T, Arivandandam v. T. V. Satta- pal (7), speaking through Krishna Iyer, J. has observed ex cathedra thus :"the learned Mumiff 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 Or. 7, r. 11 of the CPC, taking care to set that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in she bud at the first hearing by examining the party searchingly under or. 10 of the 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. 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 assasination of Mahatma Gandhi, "it is dangerous to be too good". Thus, the Supreme Court of India has made it clear that if not at the stage of registering the suit, the rejection of the plaint should be done for want of cause of action, at the first hearing of the suit, by examining the plaintiff if necessary. That does not, however, mean that the Court should assume the role of a disciplinarian instead of deciding the cases on merits. The Court cannot resort to Or. That does not, however, mean that the Court should assume the role of a disciplinarian instead of deciding the cases on merits. The Court cannot resort to Or. 7, R. 11 of the CPC unless, as observed by Krishna iyer, J, in the judgment quoted above, the plaint is vexatious and frivolous. His lordship, in the case quoted above, has observed : "we have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentedly resorted to". It is also necessary to bear in mind what the Madras High Court in Dr. H. D. Vira Reddy v. Kjstamma (8) in para 20 of the judgment has stated : -"it is an accepted canon of law as stated by Bowen, LJ, Copper v. Smith, (1884) 26 Ch. D, 700 "courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy". Thus, while remembering that Or. 7 r. 11 of the CPC, provides for rejection of a plaint where it does not, when meaningfully rend, disclose any cause of action, it is necessary also to remember that under the guise of acting under Or. 7, R. 11 of the CPC, the Court should not make short work of a suit by rejecting the plaint, acting more as a disciplinarian rather than as a judge without carefully applying its mind meaningfully to find out whether any cause of action is revealed in the plaitnt. ( 10 ) ADVERTING to the facts of the present case, the plaint does reveal a cause of action. S. 12 (l) (c) of the Hindu Marriage act clearly provides for declaring the marriage a nullity on the ground that the consent of the petitioner for the marriage was taken by force or fraud as to the nature of the ceremony or as to any material fact and circumstances concerning the respondent. That being so, it cannot be said that there is no cause of action in the petition and the petition is prima facie and manifestly frivolous and vaxatious. It is no doubt true that the burden lies heavily on the petitioner to show that the lady was suffering from insanity at the time when the marriage was proposed and the fact was concealed from him. That requires production of evidence. It is no doubt true that the burden lies heavily on the petitioner to show that the lady was suffering from insanity at the time when the marriage was proposed and the fact was concealed from him. That requires production of evidence. The learned Civil Judge, however, being overenthusiastic to experiment the dictum of the Supreme Court of India in the case quoted above assumed the role of a disciplinarian and even before the evidence of the husband was concluded stopped the proceeding and preceded to conclude that what the husband stated was frivolous and vaxatious and in that view he rejected the petition which is unwarranted and untenable. ( 11 ) IN the result, for the foregoing reasons, the appeal is entitled to succeed. The impugned judgment and order of the learned Civil Judge are hereby set aside and the matter is sent back to the trial court with a direction that the trial Court shall now afford adequte opportunity to both the parties to adduce evidence and thereafter on hearing the arguments, the learned Civil Judge shall proceed to judgment in accordance with law. No costs of this appeal. ( 12 ) PARTIES are directed to be present before the trial Court on 12-9-1983 for taking further instructions. ( 13 ) SEND back the records concerned to the trial Court forthwith. --- *** --- .