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2013 DIGILAW 147 (PAT)

Ram Shankar Jha v. Asha Devi

2013-01-31

JYOTI SARAN

body2013
ORAL ORDER Heard Mr. Jitendra Kishore Verma, learned counsel appearing on behalf of the petitioner and Mr. Ratna Deep Prasad, learned counsel appearing for the opposite parties. In I.A. No.2084 of 2012: 2. This interlocutory application has been filed praying for condonation of delay of 218 days in filing the civil revision application. The petitioner claims to be a Professor of Pathology employed in the Jawaharlal Nehru Institute of Medical Sciences, Imphal in the State of Manipur. A plea has been taken in paragraph no.3 of the interlocutory application that as he resides in Imphal hence he instructed his nephew Govind Jha for doing pairvi in the case but he failed to inform about the progress of the matter. A sweeping statement against his nephew has been made of having developed greed for the property and which has resulted in his conduct. It is further stated that when the petitioner came to Patna on 29.2.2012 he contacted his lawyer and became aware of the impugned order and whereafter the civil revision application has been filed on 16.3.2012. The plea taken by the petitioner for condonation of delay is not supported by any document rather is an oral assertion. Prima-facie the petitioner has not made out a case for condonation of delay in absence of any supportive document and seeks condonation by shifting the burden on his nephew without owning his responsibility of pursuing the matter with his counsel. However, despite absence of sufficient cause made out by the petitioner for condoning the delay of 218 days this Court taking a lenient view of the matter and following the principles of substantial justice would condone the same. 3. I.A. No.2084 of 2012 is disposed of. In C.R. No.50 of 2012: 4. This civil revision application is directed against the order dated 13.5.2011 passed by the learned Sub-Judge-VI, Vaishali at Hajipur in Title Suit No.550 of 2001 whereby the application filed by the petitioner under Order VII rule 11 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) has been rejected while observing that the issue shall be considered at the stage of final hearing. 5. 5. The suit in question has been filed by the plaintiffs-opposite parties for declaration of title over the suit land together with a prayer for interim injunction as also for correction of revisional survey entry in relation to the suit land which the plaintiffs claim to have purchased and also claim possession thereon. 6. Mr. Verma, learned counsel appearing on behalf of the petitioner has questioned the impugned order, inter alia, on grounds that the suit is barred by limitation is manifest from a reading of the plaint itself and thus the learned court below has committed a serious irregularity in postponing its decision in this context. Proceeding therefrom Mr. Verma has also sought to canvass that the suit lacks a cause of action, even though no specific plea to this effect has been taken by the defendant-petitioner before the learned court below in the two objections filed which were under consideration and has been disposed of by the impugned order. Mr. Verma has sought to justify this omission by submitting that the plea of cause of action is well covered by the objection that the suit is devoid of merits and thus the learned trial court was under an obligation to have tested whether or not the plaintiffs had a cause of action. In support of his submission he relied upon the following judgments of the Supreme Court:- (i) AIR 1977 SC 5 (Gurucharan Singh Vs. Kamla Singh). Mr. Verma has referred to the said judgment to submit that a question of law going to the root of the case and based on undisputed or proven facts could be raised even before the court of last resort. (ii) AIR 1977 SC 2421 (T. Arivandandam vs. T.V. Satyapal). The said judgment has again been relied upon by the learned counsel to submit that if on a meaningful and not formal reading of the plaint it is manifest that it is vexatious and meritless in the sense of not disclosing a clear right to sue, it should be shot down at the earliest stage. 7. Before proceeding this Court would like to observe that these arguments were never on contest before the learned court below when the impugned order was passed rather these issues were never contested. There cannot be any contest on the proposition that a plea based on question of law, can be raised at any stage but Mr. 7. Before proceeding this Court would like to observe that these arguments were never on contest before the learned court below when the impugned order was passed rather these issues were never contested. There cannot be any contest on the proposition that a plea based on question of law, can be raised at any stage but Mr. Verma when canvasses these well known propositions of law, he completely forgets the scope of exercise of an appellate jurisdiction and a revisional jurisdiction. This Court in exercise of revisional jurisdiction has to ensure whether or not the plea raised before this Court has been raised before the learned court below and if raised, whether the order so passed suffers from jurisdictional error or there is a material irregularity therein. Even when the defendant-petitioner twice has raised objection as to the maintainability of the suit, he never chose to question the same on grounds of absence of cause of action which is a specific provision under Order VII rule 11(a) of the Code. Rejection of a plaint certainly is not for an asking rather when the legislature has designed the provision spelling out the conditions under which a plaint can be rejected, a party objecting to the suit and praying for rejection of plaint on one or more of the grounds set out in the provision has to make out a specific plea to that effect. A sweeping submission by the petitioner that the plaint was devoid of merits certainly did not include a plea of absence of cause of action in the suit and until such time the said plea is raised before the court concerned the court below is under no obligation to adjudicate upon the same. The petitioner certainly cannot be permitted to canvass before this Court that the learned court below was under an obligation to enter into the question whether or not there existed a cause of action. 8. The submissions of learned counsel for the petitioner have been contested by Mr. Ratna Deep Prasad, learned counsel appearing on behalf of the plaintiff-opposite parties. It is stated at the bar that initially an objection as to the maintainability on the basis of valuation of the suit was raised by the defendant-petitioner on 18.9.2007 which was duly replied by the plaintiffs on 29.10.2007. Ratna Deep Prasad, learned counsel appearing on behalf of the plaintiff-opposite parties. It is stated at the bar that initially an objection as to the maintainability on the basis of valuation of the suit was raised by the defendant-petitioner on 18.9.2007 which was duly replied by the plaintiffs on 29.10.2007. The said objection was followed by a second objection after a lapse of almost two years on 3.8.2009 when a plea of limitation was taken questioning the maintainability of the proceedings. The said objection again was replied by the plaintiffs on 19.5.2010 and an order rejecting the application filed by the defendant petitioner under VII rule 11 of the Code was passed on 19.5.1010. The defendant-petitioner immediately moved an application on 23.6.2010 praying for recall of the order dated 19.5.2010, inter alia, on grounds of having been passed ex-parte without hearing him. The learned court below considering the plea and following the principles of natural justice recalled the order dated 19.5.2010 by order passed on 9.7.2010 and both the parties were heard on the application filed on 18.9.2007 and supplemented by another application filed on 3.8.2009. Even at that stage the defendant-petitioner never chose to question the maintainability of the suit on grounds of absence of cause of action when a period of almost four years had passed since the first objection had been filed. It is stated that the objection raised by the petitioner being mixed issue of law and facts, rightly the learned court below relegated the issue for consideration at the stage of final hearing. It is further stated by Mr. Prasad that the issues were already framed on 15.2.2007 i.e. even prior to the filing of the first objection and an issue as to the cause of action is one of the issues framed by the court below. 9. I have heard learned counsel for the parties and have perused the materials on record. It is rather surprising that even when an issue as to cause of action was framed by the court below as back as on 15.2.2007 and the first of such objection was filed on 18.9.2007 yet the petitioner never chose to question the maintainability of the suit on the plea of absence of cause of action as being canvassed before this Court with such strenuous arguments. 10. 10. Although the law as regarding an objection under Order VII rule 11 of the Code is now well settled but this Court would like to reproduce hereinbelow the relevant portion of a judgment of this Court reported in 2012(2) PLJR 592 (I.T.C. Limited vs. Shakuntala Devi), particularly paragraph 10 thereof:- “10. It is by now established that the law of rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure is broadly based upon the “Plea of Demurrer” whereby a demurrer admits the truth of the plaintiff’s set of facts, but contends that the plaintiff cannot get the relief as prayed even on the basis of those facts, either because of the bar of any law or insufficiency inherent therein. The scope and applicability of the provision of Order 7 Rule 11(d) have been now almost well settled by a number of illumining decisions of the Apex Court and it will be apt here to refer to the decision in the case of (Kamla and others vs. K.T. Eshwara Sa) AIR 2008 SC 3174 where the Apex Court has laid down as follows:- “…Order VII Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in plaint… What would be relevant for invoking Clause (d) of Order VII Rule XI of the Code is the averments made in the plaint. For that purpose, there can not be any addition or subtraction…” It has been further held:- “For the purpose of invoking order VII Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties could not be within the realm of the Court at that stage…” In another decision in the case of (C.Natrajan vs. Ashim Bai) (2007)14 SCC 183 , the Apex Court has similarly held as follows:- “An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence”. However, while considering the question of rejection of plaint under Order 7 rule 11 C.P.C., the another aspect also has been highlighted by the Apex Court in (Abdul Gaffur vs. State of Uttrakhand) (2008)10 SCC 97 , [:2008(4) PLJR (SC) 96] as follows:- “If the High Court is convinced that the plaint read as a whole does not disclose any cause of action, it may reject the plaint in terms of Order 7 Rule 11 of the Code. As a matter of fact, as observed by V.R. Krishna Iyer, J., in T.Arivandandam, 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, the court should exercise its power under the said provision. And if clever drafting has created an illusion of a cause of action, it should be nipped in the bud at the first hearing by examining the party searchingly under Order 10 C.P.C. Nonetheless, the fact remains that the suit has to be disposed of either by the High Court or by the Courts Subordinate to it in a meaningful manner as per the procedure prescribed in the Code and not on one’s own whims.” In view of the aforesaid principles and also on the basis of the decisions of the Apex Court on the issue of rejection of plaint under Order 7 Rule 11(d) C.P.C., the following broad principles can be culled out:- (i) The averments made in the plaint are germane and have to be taken as correct; (ii) The whole plaint has to be read not in formal but in a meaningful manner” (iii) No part of defence or evidence is to be considered; (iv) Being summary in nature, the court should exercise this jurisdiction only when it becomes absolutely certain that the litigation is doomed to fail. Now keeping in view, these principles the rival contentions of the parties are to be examined.” 11. Now keeping in view, these principles the rival contentions of the parties are to be examined.” 11. In view of the settled legal position as regarding the scope of exercise of power by the trial court while dealing with an objection raised under Order 7 rule 11 of the Code, I am in no manner of doubt that the exercise of power by the court below culminating in the order impugned, does not suffer from either any legal infirmity or any material irregularity warranting interference. The recurrent filing of objection by the petitioner only gives an impression of dilatory tactics. Even while it is true that nobody should be subjected to frivolous litigation which apparently is bound to fail but it is also equally true that objections as to maintainability of a suit has to be self contained, and comprehensive and can neither be supplemented nor should be allowed to be filed at intervals as means of obstruction of the judicial process. In fact attempts of this nature may also entail heavy cost. 12. This civil revision application is dismissed. The learned court below would be well advised to expedite and dispose of the trial without unnecessary delay and without granting any undue adjournment to either of the parties.