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2010 DIGILAW 780 (CAL)

Kartick Chandra Mazumdar v. Kenaram Mazumdar

2010-07-09

HARISH TANDAN

body2010
Judgment : HARISH TANDON, J: 1. This revisional application is directed against an order dated November 23, 2007 passed by the Civil Judge (Junior Division) Bongaon in Title Suit no. 159 of 2004 rejecting an application under Order 7 Rule 11 of the Code of Civil Procedure filed by the defendant no. 1/petitioner herein. Assailing the said order the present revisional application is filed by the defendant no. 1. Mr. Sabyasachi Bhattacharya, learned Advocate appearing on behalf of the petitioner submits that the trial court failed to consider that the plaint does not disclose any clear right to sue and is vexatious and harassive. In support of such contention Mr. Bhattacharya relies upon a judgment of the apex court reported in AIR 1977 SC 2421 (T. Arivandandam vs. Satyapal & Anr.) Mr. Sudhis Dasgupta, learned Senior Counsel appearing on behalf of the plaintiff/ opposite parties submits that the scope of Order 7 Rule 11 is limited, unless the case comes within the ambit of such provision the court cannot reject the plaint. Mr. Dasgupta further submits that the court cannot look into any document/material except the plaint at the time of disposal of an application under Order 7 Rule 11 of the Code of Civil Procedure. Mr. Dasgupta relies upon a judgment reported in (2004) 9 SCC 512 (Liverpool & London S.P.& I Association Ltd. Vs. M.V. Sea Success I & Anr.) for the proposition that the plaint should not be rejected merely on the ground that the averments are not sufficient to prove the facts stated therein. Mr. Dasgupta strenuously argued that the court cannot reject a plaint unless it finds that the statement made in the plaint is barred by any law without any reasonable doubt or dispute and relies upon a judgment reported in (2005) 7 SCC 510 (Popat and Kotecha Property Vs. State Bank of India Staff Association). Mr. Dasgupta argued further that the petitioner has taken specific point in the said application under Order 7 Rule 11 of the Code of Civil Procedure as to non-compliance of a provision under Order 6 Rule 15 of the Code of Civil Procedure. Reliance is paced on a judgment reported in (2006) 2 SCC 777 (Vidyawati Gupta & Ors. Vs. Mr. Dasgupta argued further that the petitioner has taken specific point in the said application under Order 7 Rule 11 of the Code of Civil Procedure as to non-compliance of a provision under Order 6 Rule 15 of the Code of Civil Procedure. Reliance is paced on a judgment reported in (2006) 2 SCC 777 (Vidyawati Gupta & Ors. Vs. Bhakti Hari Nayak & Ors.) that the provisions contained under Order 6 Rule 15 of the Code being procedural in nature and cannot be held to be mandatory but directory. The noncompliance of such procedural law does not entail the dismissal of a suit or rejection of a plaint. Mr. Dasgupta further submits that in order to succeed under Order 7 Rule 11 of the Code the defendant/petitioner has to demonstrate before the court without any reasonable doubt that he has a very strong case in his favour and the said suit is frivolous, vexatious or harassive and there is no cause of action in law and in equity. In support thereof he relies upon a judgment reported in (2006) 3 SCC 100 (Mayar (H.K.) Ltd. & Ors. Vs. Owners & Parties, Vessel M.V. Fortune Express & Ors.). It is a settled law that the court shall not look into any other material or document except the plaint at the time of disposal of an application under Order 7 Rule 11 of the Code. Taking into consideration such proposition it would be profitable to reproduce some of the relevant averments made by the opposite party in the plaint of the said suit : “2. That the deceased father of the plaintiffs got an agency from IBP Company Limited to do the business of kerosene in the year 1969 and started business under the name and style “M/s. Sricharan Majumder & Sons” at Motiganj, P.O & P.S Bongaon, District North 24 Parganas and continued the same till his death on 29.4.1998. He died intestate leaving behind the plaintiffs and the defendants no. 1 and 2 and his widow and none else and after demise of their mother in the Jaistha 1407 B.S. and they became joint owners and/or legatees in respect of all the properties, moveable and immovables and the said business. 3. Thus, after the demise of father on 29.4.98 the plaintiffs became owners in equal one fourth share per head along with the defendants nos. 3. Thus, after the demise of father on 29.4.98 the plaintiffs became owners in equal one fourth share per head along with the defendants nos. 1 and 2 in respect of the said business under the name and style “M/s. Sricharan Majumder and sons” which have two agencies one in Kalyani and one at Bongaon as detailed in the Schedule “A” being a Part of this point. 4. During the time of his father, i.e. while the said business was proprietary concern of his father, the plaintiffs generally and specially, the plaintiff no. 2 actively participated and helped his father in doing and growing of the said business under the name and style of “M/s. Sricharan Majumder and Sons”. The defendant no. 2 was given marriage by the father and the defendant no. 1 was reluctant to be a helping hand in the said business of the father. But the defendant no. 1 always tried to put undue influence and pressure upon the father for grabbing total control and ownership of the business and since father was not willing to do so, he remained aloof from the business. 7. To their utter surprise the plaintiffs came to know from a reliable source only on 1.8.2004 that the defendant no. 1 has claimed for transfer of the agency of the father in his name alone on the basis of one alleged partnership deed dated 1.6.1987 in between him and Late father and declaration of the Late father dated 28.12.1995 of which the plaintiffs have/had no knowledge and the father, during his lifetime never uttered any single word about existence of any partnership deed and/or declaration whatsoever as alleged or at all. Be it noted here that the plaintiff no. 1 and 2 had to be involved fully during the last days of father since he lost capability of running the business or to conduct the same since he lost full control over himself owing to ailments due to old age. 9. Be it noted here that the plaintiff no. 1 and 2 had to be involved fully during the last days of father since he lost capability of running the business or to conduct the same since he lost full control over himself owing to ailments due to old age. 9. From the said xerox copies of the those purported documents, it is clear that only on the last page of those, the purported signatures of the parties thereto with two signatures of one Pankaj Kumar Dey are appearing at the last pages of both the said purported documents which were allegedly certified by the learned Notary Public and thus those became unregistered, undervalued concocted and purported documents manufactured at the instance of the holder being the defendant no. 1. In case of the said declaration, at the last page only, the forged signature of the father with two signatures of witness, one Pankaj Kumar Dey are appearing what is seemingly forged and/or manufactured all the way. 11. The said alleged partnership in between late father and the defendant no. 1 was never in existence. The said partnership deed dated 1.6.1987 is a product of undue influence. The same is procured, manufactured and prepared by the defendant no. 1 in wrongful ways and means. 12. The said alleged declaration dated 28.12.1995 is a forged one and a product of afterthought, tried to be utilised otherwise and being failed. Only in 2003 (while mother died in 1407 BS) the same was placed for procuring grant of probate over the same which was miserable failed. 15. That the causes of action arose on 7.2.2004, 1.8.2004 and 15.8.2004 and the same is continuing one. The plaintiffs and the defendant no. 1 are residing and the said business being “M/s. Sricharan Majumder and Sons” is lying and most of the causes of actions arose within the jurisdiction of this learned court. 15. That the causes of action arose on 7.2.2004, 1.8.2004 and 15.8.2004 and the same is continuing one. The plaintiffs and the defendant no. 1 are residing and the said business being “M/s. Sricharan Majumder and Sons” is lying and most of the causes of actions arose within the jurisdiction of this learned court. Though one agency of business is for Kalyani and another for Bongaon, but the documents are more related to the place.” On the basis of such pleading the opposite party sought for a decree for declaration that they along with the petitioners are the joint owner having equal share in respect of the business left by their father under the name and style “M/s. Sricharan Mazumdar & Sons” and further declaration that the purported partnership deed dated 1.6.1987 are invalid, void and are not binding in any way and manner. From the bare perusal of the averments made in the plaint it cannot be said that there is no clear right to sue or the plaint does not disclose any cause of action. The application under Order 7 Rule 11 can only be entertained if it comes strongly within the precincts of the said provision. The opposite parties have categorically asserted in the plaint that they were not aware of the existence of the purported partnership deed dated 1.6.1987 executed between their father and the petitioner. It is further averred that the existence of a purported partnership deed came to the knowledge of the plaintiffs only on 1.8.2004. Apart from a case of an undue influence the plaintiffs have categorically asserted that the partnership deed is a forged document. Mr. Bhattacharya relied upon a decision reported in T. Arivandandam vs. Satyapal & Anr. (supra). I do not find any material that the said judgment really helps Mr. Bhattacharya in the matter. In the said case the father of the petitioner suffered a decree for eviction. The appeal against such decree was also dismissed. Revisional application against such dismissal was summarily rejected by the High Court but the Hon’ble Judge gratuitously granted six months time to vacate the premises. Having enjoyed such period, further extension was sought which was also granted. It is after the expiration of the said extended period the son of the petitioner filed a suit challenging the said decree on the ground of fraud and collusion. Having enjoyed such period, further extension was sought which was also granted. It is after the expiration of the said extended period the son of the petitioner filed a suit challenging the said decree on the ground of fraud and collusion. In such suit order of injunction was sought and upon bringing to the notice of the High Court of the fact that the time was earlier granted to vacate the suit premises, the Hon’ble Judge showing pity on the son persuaded the landlord to grant more time to vacate upon an impression that the said suit would be withdrawn. Upon expiration of the period hoping that they could not get any more time and in gross suppression of such fact they filed another suit being a replica of an earlier suit and obtained an ex parte injunction in the said suit. On returnable date the respondent therein apprised the court of the said fact and ultimately the order of injunction was vacated. The appeal filed against such order was also dismissed. The revisional application against such order was entertained and an interim order of injunction was passed which was subsequently vacated. Against such order a special leave petition was filed before the Hon’ble Supreme Court. In the background of such fact the Hon’ble Supreme Court was pleased to observe as follows : “5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly 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 – no 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 Order VII Rule 11, CPC taking care to see that the ground mentioned 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 Order X CPC. An activist Judge is the answer to irresponsible law suits. 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.” 6. The trial court in this case will remained itself of Section 35-A, CPC and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned. 7. We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer or the other to present to the court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the co-operation of the Bar will be readily forthcoming to the Bench for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy courts. A judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process. We must appreciate Shri Ramasesh for his young candour and correct advocacy.” Obviously this is a case where it cannot be said that the suit is vexatious, harassive and smack of clear right to sue. A judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process. We must appreciate Shri Ramasesh for his young candour and correct advocacy.” Obviously this is a case where it cannot be said that the suit is vexatious, harassive and smack of clear right to sue. A cause of action cannot be decipher from solitary averment made in the plaint but is a bundle of fact taken together and if proved entitles the plaintiff to get the relief claimed in the plaint. Whether a plaint discloses a cause of action or not is essentially a question of fact and for such proposition the averments made in the plaint in its entirety must be held to be correct. The another test is as to whether the averments made in the plaint are taken to be correct in its entirety a decree would be passed. The court should not embark upon an elaborate enquiry into doubtful or complicated questions of law or fact if the plaint discloses some cause of action or some questions fit to be decided by a judge even if the case is weak and is likely to succeed is no ground for striking it out [see (2004) 9 SCC 512 (Liverpool & London S.P.& I Association Ltd. Vs. M.V. Sea Success I & Anr.)]. The Hon’ble Supreme Court in a case of Popat and Kotecha Property (supra) had laid down a ratio that if from a statement made in the plaint it is apparent that the suit is barred by limitation the plaint can be rejected. The statement in the plaint without any addition or subtraction must show that it is barred by any law to attract the provisions of Order 7 Rule 11of the Code. There is no quarrel to such proposition of law obviously if the suit is vexatious and amounts to abuse of process of the court or law the same should not be allowed to continue but should be nipped in bud at an earliest opportunity. Mr. Dasgupta relies upon judgments reported in (2006) 2 SCC 777 (Vidyawati Gupta & Ors. Vs. Bhakti Hari Nayak & Ors.) and (2006) 3 SCC 100 (Mayar (H.K.) Ltd. & Ors. Vs. Owners & Parties, Vessel M.V. Fortune Express & Ors.) on the proposition that the noncompliance of the procedural provision does not entail dismissal. Mr. Dasgupta relies upon judgments reported in (2006) 2 SCC 777 (Vidyawati Gupta & Ors. Vs. Bhakti Hari Nayak & Ors.) and (2006) 3 SCC 100 (Mayar (H.K.) Ltd. & Ors. Vs. Owners & Parties, Vessel M.V. Fortune Express & Ors.) on the proposition that the noncompliance of the procedural provision does not entail dismissal. Although an objection was taken under Order 7 Rule 11 filed by the defendant/petitioner but the same was negated by the trial court. Even before this court, the petitioner has not agitated such point and has in fact abandoned and waived such point. Thus such question is not required to be decided by me. On the finding made above I do not find that the plaint does not disclose any cause of action or is vexatious, harassive and gross abuse of process of the court or law so as to bring within the four corners of the provisions of Order 7 Rule 11 of the Code of Civil Procedure. The revisional application is devoid of any merit and is, therefore, dismissed. However, there shall be no order as to costs. Urgent xerox certified copy, if applied for, be supplied to the parties on urgent basis.