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2010 DIGILAW 2003 (RAJ)

Mahaveer Kasatia v. Sanskrit Vidya Bhawan Samiti

2010-12-06

GOPAL KRISHAN VYAS

body2010
JUDGMENT 1. - Instant revision petition has been filed under Section 115, C.P.C. against order dated 18.10.2010 passed by Civil Judge (Senior Division) No.4, Jodhpur, by which, application filed by defendant-petitioner under Order 7, Rule 11 , C.P.C. has been rejected. 2. As per facts of the case, suit was filed by respondent-plaintiff Samiti for declaration and permanent injunction in the Court of Civil Judge (Senior Division), Jodhpur. In the said suit, after service, petitioner defendant filed an application under Order 7, Rule 11 , C.P.C. and prayed that suit has been filed by a fictitious body and society in the garb of original society which has been registered on 06.06.2003 and made a fictitious claim. Further, it is submitted that in fact 7 members of the Committee were elected under Rule 11 of the Constitution of the Society and Dr. Sanjeevni Gattani had never been elected as Secretary and, in the last election, the petitioner was elected Secretary of the Society and he is only Secretary of the Institution who can prefer the suit. Dr. Sanjeevni Gattani who has filed the suit on behalf of the plaintiff Samiti is not Secretary of the Samiti. 3. It is also pointed out that suit under Section 6 of the Societies Registration Act, 1958 can be filed by every society in the name of Chairman, Secretary or President thereof; but, in the present case, Dr. Sanjeevni Gattani is fictitious member and not Secretary of the Society, therefore, the suit is not maintainable. 4. In the application filed under Order 7, Rule 11 , C.P.C., various grounds were raised before the trial Court for dismissing the suit because as per petitioner's contention no meeting was conducted of the Committee on 12.07.2009. Therefore, there is no question of removal of petitioner Mahaveer Kasatia from the post of Secretary. The so called meeting which is said to be held on 12.07.2009 is only imaginary meeting concocted by Dr. Sanjeevni Gattani who has preferred the suit because the claim of the plaintiff is based upon totally false grounds, therefore, it is prayed that application filed by defendant petitioner under Order 7, Rule 11 , C.P.C. may be allowed and suit may be dismissed at the threshold. 5. Sanjeevni Gattani who has preferred the suit because the claim of the plaintiff is based upon totally false grounds, therefore, it is prayed that application filed by defendant petitioner under Order 7, Rule 11 , C.P.C. may be allowed and suit may be dismissed at the threshold. 5. Learned counsel for the petitioner has invited my attention towards two judgments reported in (1977) (4) SCC 467, T. Arvindam v. T.V. Satyapal & Others ; and, (2007) (10) SCC 401, Raj Narayan Sarin v. Laxmi Devi & Others. While citing these judgments, it is submitted that as per adjudication made by Hon'ble Supreme Court the trial Court is required to remember that if upon meaningful reading of the plaint it is manifestly vexatious and merit-less in the sense of not disclosing a clear right to sue, the trial Court should exercise its power under Order 7, Rule 11 , C.P.C. taking care to see that the ground mentioned therein is fulfilled; and, if clever drafting has created illusion of the cause of action the Court must nip it in the bud at the first hearing by examining the party searchingly under Order 10, C.P.C. 6. Further, it is submitted that it is adjudicated by Hon'ble apex Court that if it appears from the facts that litigation is utterly vexatious and is abuse of the process of Court, then, rejection of the plaint is justified. Therefore, it is prayed that as per facts of this case when suit itself has been filed by incompetent secretary, then, learned trial Court was required to dismiss the suit while accepting application filed under Order 7, Rule 11 , C.P.C. but learned trial Court has failed to perform his judicial duty and rejected the application without cogent reasons, therefore, order impugned may be quashed and while allowing the application under Order 7, Rule 11 , C.P.C. the suit may be ordered to be dismissed. 7. 7. Per contra, learned counsel appearing on behalf of the respondent submits that upon perusal of the language of Order 7, Rule 11 , C.P.C., it is revealed that at the time of deciding application under Order 7, Rule 11 , C.P.C., the trial Court is required to see whether any cause of action is in existence and, if not, then, of course the suit can be dismissed; and, further, if the suit is barred by any law, then, too, suit can be dismissed. But, at the time of deciding application under Order 7, Rule 11 , C.P.C. the Court can peruse the plaint only and none else. 8. This Court has had occasion to consider the above controversy in the case of Abdul Fazal v. M/s S.J. Marble Mines, Makrana (S.B. Civil Revision Petition No.178/2009), decided on 09.09.2009. While deciding the said revision petition, following adjudication was made by this Court : "Upon perusal of Order 7, Rule 11 (d), C.P.C. it is revealed that a plaint can be rejected by the trial Court where the suit appears from the statement in the plaint to be barred by any law. Here, in this case, there is no contention in whole of the revision petition as well as during the course of arguments that there was any assertion in the plaint that suit is barred by any law. More so, the petitioner-defendant is raising voice with regard to maintainability of the suit; but, in my opinion, the language of Order 7, Rule 11 (d), C.P.C. itself speaks that suit can be rejected only on the ground that upon perusal of the plaint if it appears that the suit is barred by any law. The Hon'ble apex Court specifically held in the judgment reported in 2009 CDR 88 (SC), Kamala & Others v. K.T. Eshwara Sa & Others , that Order 7, Rule 11 (d) has limited application and it must be shown by the applicant that the plaint itself discloses that suit is barred by any law and the trial Court is under obligation to satisfy itself that such averments are made in the plaint. Further, it is held that for invoking provisions of Order 7, Rule 11 (d), C.P.C. no amount of evidence can be looked into. Further, it is held that for invoking provisions of Order 7, Rule 11 (d), C.P.C. no amount of evidence can be looked into. Therefore, the issue on merit of the matter which may arise between the parties should not be in the realm of the Court. Similarly, co-ordinate Bench of this Court, in the case of 2009 (1) DNJ (Raj.) 231, Tej Singh v. Sardar Uttam Singh & Others , has held that while deciding an application under Order 7, Rule 11 , C.P.C., the Court is required to see only the averments made in the plaint and is not required to see evidence or any document which is filed to raise objection. In the similar terms is the pronouncement of the Hon'ble apex Court in the judgment reported in 2006 (2) WLC (SC) Civil 253, Ramesh B. Desai & Ors v. Bipin Vadilal Mehta & Ors , in which, it is held that objection under Order 7, Rule 11 , C.P.C. has to be decided on the basis of material contained in the plaint without considering any other material. I have given thoughtful consideration to the matter in hand while keeping in mind the above adjudication made by the Hon'ble apex Court in various pronouncements. Upon perusal of the judgments referred to above, it is crystal clear that at the time of deciding application filed under Order 7, Rule 11 (d), C.P.C. the Court is required to examine the pleadings of the plaint and, if in the pleadings, it appears to the Court that there is ground that suit is barred by any law and such argument is substantiated by any provision of law, then, of course, the trial Court can exercise its powers to reject the plaint under Order 7, Rule 11 (d), C.P.C. Obviously, the legislature, after thorough examination, has made such provision so as to restrict the unnecessary trial where the jurisdiction is not vested in the Court and such provision is required to be strictly followed by the Court of law. Therefore, Hon'ble apex Court has held in the above referred cases that at the time of deciding application under Order 7, Rule 11 (d), C.P.C. only statement of plaint is required to be seen and nothing else. Therefore, Hon'ble apex Court has held in the above referred cases that at the time of deciding application under Order 7, Rule 11 (d), C.P.C. only statement of plaint is required to be seen and nothing else. In this view of the matter, in my opinion, no error has been committed by the learned trial Court while rejecting the application filed under Order 7, Rule 11 (d), C.P.C. because it is nowhere pleaded by the petitioner-defendant that suit is barred by any law." 9. In the present case, it is obvious from the order impugned that while rejecting the application filed under Order 7, Rule 11 , C.P.C. learned trial Court has observed that upon perusal of the plaint it is not revealed that no cause of action is in existence nor it appears that suit is barred by law. Contention of learned counsel for the petitioner is that while filing application under Order 7, Rule 11 , C.P.C. certain facts were brought to the notice of the trial Court, upon which, it is obvious that suit is vexatious and abuse of the process of Court. In the above adjudication made by this Court in Abdul Fazal's case, it has been held that at the time of deciding application under Order 7, Rule 11 , C.P.C., only statement of plaint is required to be considered and no other material. Here, in this case, the ground of petitioner is that as per facts narrated by him in the application filed under Order 7, Rule 11 , C.P.C. it is obvious that the suit is utterly vexatious. In my opinion, contention of learned counsel for the petitioner is totally baseless and has no foundation to stand before the eye of law, therefore, it cannot be said at this stage that suit in question is utterly vexatious and abuse of process of Court. In this view of the matter, no case is made out for interference in the order impugned. 10. Hence, this revision petition is dismissed.Revision dismissed. *******