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2014 DIGILAW 1754 (RAJ)

Abdul Wasi v. Abdul Kadir

2014-10-30

BELA M.TRIVEDI

body2014
ORDER : 1. The present appeal filed by the appellant/plaintiff Dr. Abdul Wasi under Section 96 of CPC, arises out of the judgment and decree dated 3/8/2011 passed by the Additional District Judge No.9, Jaipur Metropolitan (hereinafter referred to as 'the Trial Court') in Civil Suit No.02/11(589/11), whereby the Trial Court has allowed the application filed by the respondent No.21/defendant No.21 under Order VII, Rule 11 of CPC read with Section 151 of CPC by rejecting the plaint, and dismissing the suit of the appellant/plaintiff. 2. The short facts, giving rise to the present appeal, are that the appellant/plaintiff is the son of the respondent No.5/defendant No.5, Shri Abdul Sami. According to the appellant/plaintiff, the common ancestor late Shri Abdul Samad, of the appellant/plaintiff, and of the respondent/defendant Nos.1 to 20 and 22 to 30, was the owner of the suit property situated at Tilak Nagar, Jaipur, as described in para 2 of the plaint. The said Abdul Samad expired in 1983 leaving behind the defendant Nos.1 to 5 who were his sons and the defendant Nos.6 to 8 who were his daugthers. The appellant/plaintiff therefore filed the suit being No.2/2011 (589 of 2011) before the Trial Court, seeking partition and for recovery of possession of his 3/14th share in the suit property, and for permanent injunction for restraining the respondents No.9 to 21/defendant Nos.9 to 21 from transferring or alienating or creating any charge or put up any construction over the suit property. In the said suit, it was alleged interalia that though the defendant Nos.1 to 4 had only 1/7th share in the suit property, they wrongly mentioning their 1/5th share, sold out their respective shares to the defendant No.21 by executing separate sale deeds, which were illegal and void ab-initio. It was further alleged that the defendant Nos.6 to 8 had relinquished their respective 3/14th undivided share in the suit property in favour of the plaintiff by executing a deed on 28/3/2011, and thus the plaintiff was entitled to get his 3/14th share in the suit property. It was further stated in the plaint that on 5/4/2011 when the plaintiff asked for partition of the suit property by meets and bounds, the respondents/defendants refused to do so, and hence the suit was filed. It was further stated in the plaint that on 5/4/2011 when the plaintiff asked for partition of the suit property by meets and bounds, the respondents/defendants refused to do so, and hence the suit was filed. The respondent No.21/defendant No.21, on service of summons, had filed an application under Order VII, Rule 11 read with Section 151 of CPC, seeking rejection of the plaint, contending interalia that the plaintiff had earlier filed the suit being No.548/11 on 11/4/2011, making the same averments as made in the present suit and that the said suit was dismissed for non compliance of the Court's order to pay Court fees and for default on 21st April, 2011, and hence the appellant/plaintiff could not have filed the second suit. It was also contended that no cause of action had arisen for the plaintiff to file the suit against the defendants. It was also further contended that the plaintiff had also filed one another suit bearing No.131 of 2007, claiming partition of the suit property and seeking his share on the basis of alleged Hibanama in favour of his mother, which was dismissed by the Trial Court on 30th August, 2008, and that one more suit was filed by the respondent No.5/defendant No.5, i.e, father of the plaintiff bearing No.105 of 2008 against the defendant Nos.1 to 4, in which he had not shown share of the defendant Nos.6 to 8 in the suit property. It was also contended that the plaintiff had suppressed material facts from the Court by not disclosing the filing of the said suits and hence the plaint was liable to be rejected. The said application under Order VII, Rule 11 of CPC was resisted by the appellant/plaintiff by filing the reply. The Trial Court, after hearing the learned counsels for the parties, allowed the said application, rejecting the plaint of the appellant/plaintiff vide impugned order dated 3/8/2011. Being aggrieved by the same, the present appeal has been filed. 3. It has been sought to be submitted by the learned Senior Counsel Mr. R.K. Mathur for the appellant that the impugned order passed by the Trial Court is ex-facie illegal, as none of the ingredients of Order VII, Rule 11 of CPC have been complied with. Being aggrieved by the same, the present appeal has been filed. 3. It has been sought to be submitted by the learned Senior Counsel Mr. R.K. Mathur for the appellant that the impugned order passed by the Trial Court is ex-facie illegal, as none of the ingredients of Order VII, Rule 11 of CPC have been complied with. While conceding that the appellant/plaintiff had not disclosed the fact of institution of the suit being No.548 of 2011, in the present suit, he submitted that the present suit could not have been rejected merely on non-disclosure of such fact. According to him, the Trial Court has wrongly relied upon the provisions contained under Order IX, Rule 9 and Order II, Rule 2 of CPC for rejecting the plaint. Placing reliance on the decisions of the Apex Court and of this Court in case of Union of India vs. Suresh J. Thanawala & Ors, JT 2001(7) SC 668 and in case of Dev Bai (Smt.) vs. Additional Civil Judge No.1, Kota & Ors, 2012(1) WLN 623 (Raj.), Mr.Mathur submitted that the plaint could be rejected under Order VII, Rule 11(d) considering the averments made in the plaint only, and in the instant case, no such averments having been made by the plaintiff in the plaint, the provisions contained in Order VII, Rule 11 (d) could not be resorted to. He also submitted that the appellant/plaintiff has clearly disclosed the cause of action in the plaint itself, and therefore the provisions contained in Clause (a) of VII, Rule 11 also would not be attracted. However, the learned Senior Counsel Mr. R.K. Agarwal with Mr. Suresh Sahni appearing for the respondents vehemently submitted that the present suit was filed by the appellant/plaintiff suppressing the material facts from the Court, and misusing the process of law. According to them, the earlier suit being No.548/2011 filed with the same averments as made in the present suit was dismissed by the Court on 21st April, 2011 for not complying with the order made for the payment of proper court fees and for not remaining present in the Court, however the said fact was suppressed by the appellant in the present suit. They submitted that the present suit was filed making verbatim the same averments in the plaint, as made in the earlier suit, however the prayer for setting aside of the sale deed executed in favour of the defendant No.21, which was prayed for in the earlier suit was deleted in this suit, only with a view to avoid payment of Court fees. Mr. Agarwal also drew the attention of the Court about the other suits filed by the appellant/plaintiff in respect of the same property and submitted that no cause of action had arisen against the respondents to file the present suit. The learned counsels for the respondents have relied upon various judgments of Hon'ble Supreme Court to submit that the plaintiff must aver clearly the facts necessary to enable him to obtain the decree and that while scrutinizing the averments of the plaint, it is the bounden duty of the Court to ascertain the materials for cause of action. They also submitted that if the suit is filed by the plaintiff abusing the process of Court, the Court should not feel helpless and should dismiss the suit invoking the powers under Section 151 of CPC, if the plaint could not be rejected under Order VII, Rule 11 of CPC. 4. So far as the legal position with regard to Order VII, Rule 11 of CPC is concerned, it may be stated that the Apex Court in the latest decision in case of Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust, (2012) 8 SCC 706 has reiterated interalia that where the plaint does not disclose a cause of action, where the relief claimed is undervalued and not corrected within the time allowed by the Court, where the plaint is insufficiently stamped and not rectified within the time fixed by the Court, where the plaint is barred by any law, where the plaintiff failed to enclose the required copies or to comply with the provisions of Rule 9, the Court has no other option except to reject the plaint. 5. 5. The Apex Court considering other earlier judgments observed in para No.12, as under :- “12.It is also useful to refer the judgment in T. Arivandandam vs. T.V. Satyapal, wherein while considering the very same provision, i.e. Order 7 Rule 11 and the duty of the trial Court in considering such application, this Court has reminded the trial Judges with the following observation: (SCC p.470, para 5) “5. ...The learned Munsif must remember that 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, he should exercise his 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 the illusion of a cause of action nip it in the bud at the first hearing by examining the party searchingly under Order 10, C.P.C. 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, (Chapter XI) and must be triggered against them.” It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order 7 Rule 11. If clever drafting has created the illusion of a cause of action as observed by Krishna Iyer J., in the above referred decision, it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the Code. 6. Having regard to the submissions made by the learned counsels for the parties, and to the documents on record in the light of aforestated legal position, it appears that it is not disputed that the appellant/plaintiff had earlier filed the suit being No.548 of 2011 in the Court of District Judge, Jaipur City, Jaipur against the same respondents/defendants, challenging the sale deeds executed by the respondent/defendant Nos. 1 to 4 in favour of the defendant No.21, and further seeking partition of the suit property and for recovery of his 3/14th share in the said property. 1 to 4 in favour of the defendant No.21, and further seeking partition of the suit property and for recovery of his 3/14th share in the said property. It is also not disputed that in the said previous suit, the appellant having not paid the proper Court fees, the Court had directed him to pay the requisite court fees as per the order dated 15/4/2011. It is also not disputed that the said suit was dismissed by the Court on 21/4/2011 on the appellant/plaintiff having not complied with the order of payment of Court fees and on the plaintiff and his Advocate having not remained present. It is also not disputed that the plaintiff thereafter filed the present suit on 22/4/2011 making the same averments as were made in the earlier suit, however, deleting the prayer for setting aside of the sale deeds executed in favour of the defendant No.21 and retaining the other prayers for partition of the suit property and for recovery of his share, without mentioning about the filing and dismissal of the earlier suit. It also appears that even prior to filing of these two suits, the appellant/plaintiff had filed one another suit being No.131 of 2007 (677/2007), seeking partition of the same suit property, which suit was also dismissed by the concerned Court under Order VII, Rule 11 of CPC vide order dated 30/8/2008. The said order passed in the said suit was under challenge in the First Appeal being No.516 of 2008, which was tagged with the present first appeal, and the said first appeal has also been dismissed by the Court today by separate order. 7. From the aforestated proceedings, it clearly transpires that the appellant/plaintiff had filed the suits one after other, seeking almost the same relief of partition and injunction in respect of the suit property, suppressing the filing of the other suit proceedings. Such a conduct on the part of the plaintiff is nothing but misuse and abuse of process of law. As rightly relied upon the various decisions of Apex Court by the learned counsels for the respondents, any suppression of material fact by litigant, disqualifies such litigant from obtaining any relief. The Apex Court in Raj Narain Sarin (Dead) through LRs. & Ors. As rightly relied upon the various decisions of Apex Court by the learned counsels for the respondents, any suppression of material fact by litigant, disqualifies such litigant from obtaining any relief. The Apex Court in Raj Narain Sarin (Dead) through LRs. & Ors. vs. Laxmi Devi & Ors., 2002(10) SCC 501 , upheld the order passed by the Trial Court rejecting the plaint under Order VII, Rule 11 relying upon the decision in case of T.Arvandandam vs. T.V. Satyapal, (1977) 4 SCC 467 , in which it was categorically laid down that if on a meaningful reading of the plaint, it manifestly appears to be vexatious and meritless, in the sense of not disclosing a clear right to sue, the Trial Court should exercise its power under Order VII, Rule 11 of CPC taking care to see that the ground mentioned therein is fulfilled, since bogus litigation ought to be shot down at the earliest stage. This Court in case of Temple of Thakur Shri Mathuradassji, Chhota Bhandar vs. Shri Kanhaiyalal & Ors. 2008(2) RLW 1390 has held to the effect that if the suit is filed by abusing the process of the Court and cannot be dismissed under Order VII, Rule 11 of CPC, then the Court is not helpless and can accordingly invoke the powers under Section 151 of CPC and can dismiss the suit under Section 151 of CPC. 8. In the instant case, the respondent/plaintiff No.21 had filed the application under Order VII, Rule 11 read with Section 151 of CPC, seeking rejection of the plaint mainly on two grounds, namely, the plaintiff had suppressed the material fact from the Court by not disclosing the filing and dismissal of earlier suit, and thereby misusing and abusing the process of Court, and on the ground that the plaint did not disclose cause of action against the defendants. 9. At this juncture, it is also required to be mentioned that while scrutinizing the plaint averments, it is the bounden duty of the Trial Court to ascertain the materials for cause of action, and as per settled legal position, the cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. The Apex Court in case of A.B.C. Laminart (P) Ltd. vs. A.P. Agencies, (1989) 2 SCC 163 while explaining as to what is “cause of action” has observed as under :- “12. 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 a 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” 10. Now, on the scrutiny of the averments made in the plaint, it appears that the appellant/plaintiff had alleged in the plaint that the sale deeds dated 25/8/2007 & 28/1/2008 executed by the defendant Nos.1 to 4 in favour of the respondent No.21 were illegal, null and void, however there is no prayer made for setting aside of the said sale deeds, though such a prayer was made by him in the earlier suit being No.548 of 2011 dismissed by the Court. It further transpires that the defendant Nos.1 to 4 having sold out their shares in the suit property in favour of the defendant No.21, they had ceased to be the owners and the defendant No.21 had become the owner and occupier of their 4/5th share in the suit property. Hence, unless the said sale deeds executed in favour of the defendant No.21 were set aside, no cause of action for partition of the suit property could be said to have arisen in favour of the appellant. Hence, unless the said sale deeds executed in favour of the defendant No.21 were set aside, no cause of action for partition of the suit property could be said to have arisen in favour of the appellant. It is needless to say that no cause of action for filing suit for partition could be said to have arisen against the defendant No.21, he being an outsider. The plaintiff has failed to set out as to how any cause of action could be said to have arisen for partition of the suit property against the defendant No.21 who was an outsider, and how the cause of action for partition could be said to have arisen against the other defendants, when the defendant Nos.1 to 4 had already sold out their shares to the defendant No.21 by executing separate sale deeds and when no prayer for setting aside the said sale deeds have been made. Hence, apart from the fact that such a prayer for setting aside the said sale deeds made in the previously instituted suit No.548/11 was omitted in the instant suit and that the fact of filing and dismissal of the said previously instituted suit was suppressed in the present suit, the appellant/plaintiff has failed to aver and state in the plaint the facts necessary to obtain the decree for partition, constituting cause of action against the defendants. On the meaningful reading of the plaint, the Court has no hesitation in holding that the plaint did not disclose clear right to sue and the cause of action, that is the bundle of facts taken with the law applicable giving the plaintiff right to relief against the defendants. 11. In that view of the matter, the Court is of the opinion that the plaint of the appellant/plaintiff was liable to be rejected under the provisions contained in Order VII, Rule 11 (a) of CPC. Though it is true that the Trial Court has rejected the plaint on the ground that the suit of the plaintiff was barred under Order IX, Rule 9 and Order II, Rule 2, the said reasonings could not be vindicated. Neither the provisions contained in Order IX, Rule 9, nor in Order II, Rule 2 would be applicable to the facts of the present case, and to that extent the order passed by the Trial Court is not correct. Neither the provisions contained in Order IX, Rule 9, nor in Order II, Rule 2 would be applicable to the facts of the present case, and to that extent the order passed by the Trial Court is not correct. Nonetheless, the plaint is certainly liable to be rejected under Order VII, Rule 11(a) on the plaintiff's failing to disclose cause of action. Hence, while not agreeing with the reasons given by the Trial Court, the Court agrees to the conclusion that the plaint of the appellant/plaintiff was liable to be rejected under Order VII, Rule 11 of CPC. 12. The present appeal therefore being devoid of merits deserves to be dismissed and is accordingly dismissed.