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2007 DIGILAW 173 (JK)

Gh. Rasool Parray v. Suhail Wahid Malik

2007-09-05

MANSOOR AHMAD MIR

body2007
1. This revision is directed against the order dated 28-2-2007 passed by Sub-Judge, Budgam, in a suit titled Suhail Wahid Malik Vs. Ghulam Rasool Parray & others, dismissing the application of the defendants -- petitioners filed under Order 7 Rule 11 CPC. 2. In order to appreciate the controversy involved in the case, it is profitable to notice the brief facts of the case. Respondent -- plaintiff filed a suit for perpetual injunction in the court of District Judge, Budgam, which came to be transferred to Sub-Judge, Budgam. Defendants -- petitioners appeared and filed their written statement on 3-11-2006. During the pendency of the suit, defendants moved an application in terms of Order 7 Rule 11 CPC for rejection of the plaint on the ground that defendants have leased out the suit property to the plaintiff -- respondent in terms of rent agreement dated 20-3-2004 for running his business under the name and style of "M/S Global Processing Solution, Parraypora", but the plaintiff subsequently changed his line of business and set up two educational institutes in the suit premises, one under the name and style of "Cambridge Child Development Centre" and the other "Informatics Computer Institute", thereby they violated the terms and conditions of the rent agreement. The plaintiff has no cause of action to seek restraint against the defendants -- owners from causing any interference. 3. The application came to be resisted by the plaintiff on the grounds taken in the objections filed thereto. After hearing the parties, the trial court dismissed the application vide the impugned order. 4. The sole question which calls for determination in this petition is as to what does cause of action means in terms of Section 20 of the Code read with Order 7 Rule 11 CPC. "Plaint" as well as "cause of action" are defined in the Code. Order 6 of the Code mandates as to what are the requirements of the plaint and Order 7 Rule 11 CPC mandates how plaint can be rejected. It is profitable to reproduce Order 7 Rule 11 CPC herein: "Rejection of plaint. "Plaint" as well as "cause of action" are defined in the Code. Order 6 of the Code mandates as to what are the requirements of the plaint and Order 7 Rule 11 CPC mandates how plaint can be rejected. It is profitable to reproduce Order 7 Rule 11 CPC herein: "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 stamp paper 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 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, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff." 5. One of the grounds contained in Order 7 Rule 11 CPC is that plaint can be rejected for non-disclosure of the cause of action. In the instant case, plaintiff has specifically pleaded in the plaint how cause of action has accrued to him and what are the basis for filing the suit. 6. Cause of action means a bundle of facts which give rise to an action. It is for the plaintiff to plead in the plaint how an action of the defendant is against his rights and how it infringes his rights. The plaintiff has to prove these facts in order to enable him to obtain a decree. If he fails to prove the said facts, the suit is liable to be dismissed. The apex court in case ABC Laminart Pvt. Ltd. Vs. A.P. Agencies, Salem, (1989) 2 SCC 163, has defined what cause of action means. The plaintiff has to prove these facts in order to enable him to obtain a decree. If he fails to prove the said facts, the suit is liable to be dismissed. The apex court in case ABC Laminart Pvt. Ltd. Vs. A.P. Agencies, Salem, (1989) 2 SCC 163, has defined what cause of action means. It is profitable to reproduce para 12 of the said judgement hereunder: "......A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff." 7. While going through the plaint, the plaintiff has specifically and categorically pleaded how cause of action has accrued to him. The defendants have not denied the averments so far it relate to the cause of action in the written statement. In the written statement, defendants have pleaded that they require the rented premises for their personal use, but in the application in hand, the defendants have pleaded that the plaintiffs are running a different business which is in violation of rent agreement. 8. Whether plaint discloses cause of action is to be seen, ascertained and noticed while keeping in view the averments contained in the plaint? The averments contained in the written statement cannot be a ground for rejecting a plaint in terms of Order 7 Rule 11 CPC. 8. Whether plaint discloses cause of action is to be seen, ascertained and noticed while keeping in view the averments contained in the plaint? The averments contained in the written statement cannot be a ground for rejecting a plaint in terms of Order 7 Rule 11 CPC. Even if a Judge is of the opinion that the plaintiff may not succeed on the averments made in the plaint, but that cannot be the ground to reject the plaint. The apex court in case Mayar (H.K) Ltd. & ors. Vs. Owners & Parties, Vessel M.V.Fortune Express & ors., 2006 AIR SCW 863, has taken the same view, in the following terms: ".......it is apparent that the plaint cannot be rejected on the basis of the allegations 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 a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII, Rule 11 of the Code. Essentially, whether the plaint discloses a 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. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relief on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averment made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order VII, Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants. In the present case, the averment made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order VII, Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants. Similarly, the Court could not have taken the aid of section 11 of the Code for stay of the suit as there is no previously instituted suit pending in a competent court between the parties raising directly and substantially the same issues as raised in the present suit." 9. Keeping in view the above discussions and the ratio laid down in the apex court judgements supra and the definition of "cause of action", I am of the considered view that the impugned order is legal one. Accordingly this revision petition is dismissed as being without force and the impugned order is upheld. Record be transmitted back to the trial court forthwith.