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2009 DIGILAW 635 (ALL)

RENU CHANDRA v. GANPATI ASSOCIATES

2009-02-26

V.K.SHUKLA

body2009
( 1 ) PRESENT Civil Revision has been filed against the judgment and order dated 17. 01. 2009 passed by Judge Small Cause Court/additional District Judge, Meerut in JSCC Suit No. 35 of 2007, between M/s Ganpati Associates and Smt. Renu Chandra. ( 2 ) BRIEF background of the case is that M/s Ganpati Associates, the plaintiff-respondent filed JSCC Suit No. 35 of 2007, seeking a decree of eviction on the ground of default. On institution of suit, notices had been issued and written statement was filed pursuant to notice dated 27. 08. 2007. During pendency of suit, respondent No. 1 moved an application dated 11. 02. 2008 under Order XV Rule 5 C. P. C. , mentioning therein that the defendants have failed to deposit the rent/damages since June, 2007 or for the period thereafter in the manner contemplated under Order XV Rule 5 C. P. C. , the defence of the defendants is liable to struck off. Thereafter on 13. 03. 2008 application under Order VII Rule 11 C. P. C. was moved by the defendants. Said application was objected to by the plaintiff and the same has been rejected. At this juncture, present writ petition has been filed. ( 3 ) SRI Vijay Prakash, Advocate, appearing for the petitioner contended with vehemence that application under Order VII Rule 11 C. P. C. was liable to be allowed, as rent deed, allegations made in the application under Order XV Rule 5 C. P. C. and the plaint disclose no cause of action for filing suit, and on meaningful reading it is writ apparent that it was vexatious and meritless, as such the suit was liable to be dismissed and the application under Order VII Rule 11 C. P. C. was liable to be allowed. ( 4 ) COUNTERING the said submission, Sri K. P. Tiwari, Advocate appearing with Sri Rajesh Kumar Srivastava, contended that the plaint discloses cause of action, and this is at all a device on the part of the defendant-revisionist to delay the proceeding by all means, as such present Civil Revision, as has been framed and drawn is liable to be dismissed. At this juncture, the provisions of Order VII Rule 11 C. P. C. are being looked into. The said provisions read as under: "order VII plaint 11. At this juncture, the provisions of Order VII Rule 11 C. P. C. are being looked into. The said provisions read as under: "order VII plaint 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 under valued, 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 papers 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 injuries to the plaintiff. " ( 5 ) A bare perusal of the provisions aforequoted would go to show that the plaint can be rejected where it does not disclose any cause of action; where the relief claimed is under valued, and the plaintiff, on being required by the Court to correct the valuation within the time fixed by the court, fails to do so; 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 papers within the time fixed by the Court, fails to do so; and where the suit appears from the statement in the plaint to be barred by any law. ( 6 ) THE provisions quoted above have been subject matter of consideration by Honble Apex Court in the case of I. T. C. Ltd. vs. Debts Recovery Appellate Tribunal and others, reported in 1998 ACJ 614, and therein view has been taken that the question 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 out of Order 7 Rule 11 C. P. C. clever drafting creating illusion of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Paragraph 16 of the said judgment being relevant is being quoted below: "16. The question 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 out of Order 7 Rule 11 C. P. C. clever drafting creating illusion of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. " ( 7 ) HONble Apex Court in the case of Sakeem Bhai and others vs. State of Maharashtra, 2003 ACJ 704 took the view that amverments in the plaint are only relevant. Paragraph 9 of the said judgment being relevant is being quoted below: "9. A perusal of Order 7 Rule 11 C. P. C. makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit-before registering the plaint or after issuing summons to the defendant at any time before conclusion of the trail. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are genuine, the plea taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot be procedural irregularity touching the exercise of jurisdiction by the trial Court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the Court as well as procedural irregularity. The High Court, however, did not advert to these aspects. The order, therefore, suffers from non-exercising of the jurisdiction vested in the Court as well as procedural irregularity. The High Court, however, did not advert to these aspects. " ( 8 ) HONble Apex Court in the case of Popat and Kotcha Property vs. State Bank of India Staff Association, 2005 ACJ 2008, took the view that plaint can be quashed on he ground that relief claim is barred by law only when bare reading of the averments of the plaint such bar is spell out, but not the disputed facts. Paragraphs 16, 17, 18 and 19 of the said judgment being relevant is being quoted below: "16. 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 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting creating illusion of cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code (See T. Arivandandam v. T. V. Satyapal, (1977) 4 SCC 467 ). 17. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill (1982) 3 SCC 487 ), only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected. 18. In Raptakos Brett and Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184 , it was observed that the avements in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 was applicable. 19. There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence of a passage and to read it out of the context in isolation. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence of a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. " ( 9 ) ON the parameters as set out, the case in hand is being looked into. In the present case, undisputed factual position is that inter se parties there was unregistered agreement, duration of which was 11 months and for compliance of the terms and conditions of rent note, suit in question had been filed. The Judge Small Cause has taken note of the fact that once duration of tenancy had already come to and, then in terms of Section 111 of the Transfer of Property Act, proceedings can be undertaken. In the present case plaint in question has been perused and same clearly discloses cause of action specially in this background when building in question is not covered by U. P. Act No. 13 of 1972, notice had been given terminating tenancy. Plain and simple notice of terminating tenancy under Section 106 of the Transfer of Property Act is good enough,to institute suit for ejectment, and in case tenant is in arrears of rent, then the said fact can also be added in addition to it, as such suit was clearly maintainable with the cause of action. In this background, by no stretch of imagination, plaint can be quashed as the same does disclose cause of action, and the same is nothing but a device to delay the proceedings. Consequently, no interference is being made with the order impugned refusing to reject application under Order VII Rule 11 C. P. C. for rejecting the plaint. Revision is dismissed with cost of Rs. Consequently, no interference is being made with the order impugned refusing to reject application under Order VII Rule 11 C. P. C. for rejecting the plaint. Revision is dismissed with cost of Rs. 20,000/- to be paid by the revisionist to the plaintiff-respondent, within a period of two months from today. .