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2015 DIGILAW 1373 (BOM)

Prabhudayal v. Shantabai

2015-06-25

A.P.BHANGALE

body2015
Judgment :- 1. Heard. 2. Admit. By the consent of learned Counsel for the respective parties, the appeal is heard finally. 3. Considering the impugned order and submissions on behalf of the appellant that this appeal can be disposed of finally at the stage of admission, this Court had directed the parties to note that this appeal may be disposed of finally at the stage of admission. Thus, today, submissions are heard at the bar. 4. This appeal is directed against the order dt.14.8.2014 below Exh. Nos. 1 and 83 in Special Civil Suit No.524 of 2007 passed by 8th Joint Civil Judge (Sr.Dn.), Nagpur. On behalf of the appellant, it is submitted that the Special Civil Suit was instituted with prayers for declaration and permanent injunction as well as compensation against the respondents (original defendants) in the trial Court. The litigation between the parties has long past history since the year 1985. Regular Civil Suit No.492 of 1985 was instituted by one Ramrao Mane against Ramkhilawan etc. for possession as well as mesne profit in respect of the suit property described therein. That suit came to be dismissed on 5.4.1988 and the trial Court had accepted the claim made by the defendants for adverse possession in respect of the land in their possession. Regular Civil Appeal No.183 of 1988 was preferred against the decree but the appeal was dismissed by the learned 5th Additional District Judge, Nagpur by Judgment and Order dt.9.9.1996. The controversy was brought before this Court in Second Appeal No.161 of 1997. During pendency of that appeal, parties had entered into compromise whereby they decided to partition the suit property into four portions i.e. A, B, C and D. Portion A was allotted to plaintiff Ramrao Mane, portion B was allotted to Prabhudayal Ramkhilawan Pande (appellant herein), while portion C was allotted to predecessor of Shamsunder Pande and portion D was allotted to Ishwardayal Pande (respondents are legal heirs of said Shamsunder Pande). Thus, in respect of the alloted portions of the suit property, the rights were crystalized as above. Thus, in respect of the alloted portions of the suit property, the rights were crystalized as above. However, the present appellant chose to institute Special Civil Suit No.524 of 2007 against legal representatives of Shamsunder Pande claiming that he is entitled for compensation in respect of Mango trees planted by him in the suit land which went to the share of Shamsunder Pande and consequent reliefs of declaration as well as permanent injunction was also prayed. It is not in dispute that, in respect of Special Civil Suit No.524 of 2007, written statement is filed on record by the defendants and the issues are also framed. 5. It is under these circumstances that the impugned order was passed for rejection of plaint under Order VII, Rule 11 (a) and (d) of the Code of Civil Procedure. The impugned order which runs into more than ten pages refers to the nature of the suit that it is for compensation, declaration and permanent injunction against the defendants. The defendants had already filed Written Statement stating therein that they wanted to raise objection as to maintainability of the suit on the ground of principle of estoppel and cause of action on the ground that previous matter was compromised in Second Appeal No.161 of 1997 in the High Court which was Second Appeal filed by Ramrao Mane. The compromise was recorded under Order XXIII, Rule 23 of the Code of Civil Procedure which was also referred to in the Written Statement. It appears from the reasons recorded by the learned Judge that the Written Statement filed by the defendants was referred to; as also the contention that, in the Second Appeal, the matter was earlier compromised in the High Court, pursuant to which the suit property was mutated and the parties were placed in possession of their respective allotments. The contention of plaintiff seeking declaration about mango trees standing in the land allotted to the defendants also appears to have been referred to by the learned Judge who rejected the plaint. The contention of plaintiff seeking declaration about mango trees standing in the land allotted to the defendants also appears to have been referred to by the learned Judge who rejected the plaint. The learned Judge in para 11 of the impugned order observes thus: “After perusing all the documents filed, copies of various orders and the orders passed below Exhs.15 and 39, here it is clear that application below Exh.15 is filed for rejection of plaint as the suit is not maintainable on the ground that the claim of the plaintiff in the present suit is for claiming restraining order against these defendants from entering into the using the suit land”. 6. Thus, it appears that the learned Judge travelled beyond the averments in the plaint in Special Civil Suit No.524 of 2007 before passing the impugned order making reference to all documents, copies of various orders and orders passed in the past including those passed in previous suit, appeal, Second Appeal and compromise application. The learned Judge mentioned in para no.17 of the order that he considered the discussions, submissions, contents of compromise decree and contents of plaint and prayer and cause of action for filing the suit and observed that “the plaintiff's claim is barred by law as in the previous suit, it is clearly adjudicated and decided on merits. The learned Judge decided to reject the plaint by passing order below Exh.1 in the suit. 7. Learned Counsel appearing on behalf of the appellant submitted that the plaint could not have been rejected under Order VII, Rule 11 (a) and (d) of the Code of Civil Procedure in view of the past history of the litigation between the parties and the fact that in Special Civil Suit No.524 of 2007, written submissions were filed by the defendants and the issues were also framed. The learned trial Judge ought to have proceeded to decide the suit on the basis of evidence that may be adduced by the parties instead of rejecting plaint, for which no amount of evidence need to be looked in except bare perusal of plaint. 8. The learned trial Judge ought to have proceeded to decide the suit on the basis of evidence that may be adduced by the parties instead of rejecting plaint, for which no amount of evidence need to be looked in except bare perusal of plaint. 8. Mr.P.P.Kothari, learned Counsel for the respondents, however, supported the impugned order on the ground that the suit was not maintainable as the controversy between the parties was compromised in Second Appeal No.161 of 1997 and u/s.24 of the Maharashtra Land Revenue Code, the trees which were standing on the suit land became property of the respondents herein and compensation could not have been claimed in respect of the standing trees on the said land which became vested in the respondents as owners thereof. 9. Learned Counsel for the respondents submitted with reference to the ruling in the case of I.T.C. Ltd. vs. Debts Recovery Appellate Tribunal and others, reported in AIR 1998 SC 634 and placing reliance upon the observations made by Hon'ble Supreme Court that merely because issues have been framed, the matter need not necessarily go to the trial. The Apex Court made reference to the case of Azar Hussain vs. Rajiv Gandhi reported in AIR 1986 SC 1253 to observe that the whole purpose of conferment of such powers (to reject the plaint) is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy time of the Court. In that context, the Supreme Court held that the fact that the issues have been framed in the suit cannot come in the way of consideration of the application under Order VII, Rule 11 of the Code of Civil Procedure. It is true that, in a given case when there is no valid cause of action absolutely upon reading the averments in the plaint, the plaint is liable to be rejected under Order VII, Rule 11 of the Civil Procedure Code. 10. Reference is also made to the ruling in the case of Gangaram Balkrishna Sawant .vs. Vasudeo Dattatraya Kirloskar reported in The Bombay Law Reporter (VOL XXV) (1922) page 268 which is a ruling in respect of suit for partition. In that case, the original plaintiff appears to have alienated his business and the appellant substituting him was really a predecessor of litigation. In that case, the original plaintiff appears to have alienated his business and the appellant substituting him was really a predecessor of litigation. Thus, the appeal was dismissed in respect of the suit for partition. 11. Learned Counsel for respondent argued in respect of principle of res judicata and submitted that the suit is not maintainable considering the principles of res judiciata. It ought to have been dismissed. 12. Reference is also made to the case of Food Corporation of India .vs. Prashant Pandurang Ramteke and Others reported in 2005(4) Mh.L.J. 742 to submit that the principles of res judicata are attracted when the parties are same and the matter was decided finally between them on merits. In the facts and circumstances, in Writ Petition 1696 of 2005, decided on 6.7.2005, this Court had dismissed the petition filed to quash the order in respect of failure report submitted by Conciliation Officer to the appropriate Government. 13. In my opinion, when the Written Statement is filed and issues are also framed, the question whether the principle of res judicata is attracted or not could be a question to be decided on merits in the suit and not merely on the basis of bare perusal of averments in the plaint in the suit. Particularly when, in a given suit when the trial Court has received Written Statement and it proceeds to frame issues on the basis of pleadings before it, then propriety demands that the trial Court ought to proceed further with the suit on merits so as to decide all the issues framed unless any issue as to maintainability of the suit is required to be decided first before proceeding further. Under Order 14, when the issues are settled and determined in the suit at the first hearing of the suit after reading the plaint and Written Statement and hearing the parties, the Court is required to pronounce the Judgment on all issues. Under Order XIV, Rule 2 of the Code of Civil Procedure, it is obligatory on the trial Court to pronounce Judgment on all the issues. Notwithstanding the fact that the suit may be disposed of on the basis of any preliminary issue relating to jurisdiction of the Court to entertain the suit or bar to the suit created by any law which is in force for the time being. Notwithstanding the fact that the suit may be disposed of on the basis of any preliminary issue relating to jurisdiction of the Court to entertain the suit or bar to the suit created by any law which is in force for the time being. Under Order VII, Rule 11, the Code of Civil Procedure, the provision enabling the Court to reject the plaint either under clause (a) or (d) is provided. The Court need not refer to any amount of evidence as merely on the basis of perusal of the plaint, the plaint may be rejected. The legal position in this regard that Order VII, Rule 11 of the Code of Civil Procedure and Order XIV, Rule 2 of the Code of Civil Procedure operate at different stages of the suit and scope of the provision was explained by Hon'ble Supreme Court in the case of Kamla and Ors. vs. K.T.Eshwara and Others reported in AIR 2008 SC 3174 . In para nos. 15 and 16, it is observed as under: “15. 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 the plaint. Different clauses in Order VII, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order VII, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order VII, Rule 11 of the Code is one, Order XIV, Rule 2 is another.” “16. 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 would not be within the realm of the court at that stage. 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 would not be within the realm of the court at that stage. All issues shall not be the subject matter of an order under the said provision.” In para 21, it was observed thus: “We may proceed on the assumption that the shares of the parties were defined. There was a partition amongst the parties in the sense that they could transfer their undivided share. What would, however, be the effect of a partition suit which had not been taken to its logical conclusion by getting the properties partitioned by metes and bounds is a question which, in our opinion, cannot be gone into in a proceeding under Order VII, Rule 11(d) of the Code. Whether any property is available for partition is itself a question of fact. 14. Thus, the question which would require adjudication of facts cannot be dealt with while passing the order under Order VII, Rule 11 of the Code of Civil Procedure. The Court is not required to consider the case of the defendants while the plaint is liable to be rejected upon perusal of averments thereof, although remedy chosen by the defendants may be to challenge maintainability of the suit itself with a prayer to the trial Court to exercise power under Order VII, Rule 11 of the Code of Civil Procedure. 15. In the ruling in the case of Abdul Gafur and another vs. State of Uttarakhand and Others reported in (2008) 10 SCC 97 , Hon'ble Supreme Court was considering Section 9 of the Code of Civil Procedure and held that, in all types of civil disputes, Courts have disputed jurisdiction and the law confers on every person an inherent right to bring a suit of civil nature of one's choice, at one's peril, howsoever frivolous the claim may be, unless it is barred by statute. The Apex Court making reference to the case of Ganga Bai vs. Vijay Kumar, reported in (1974) 2 SCC 393 held that there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. The Apex Court making reference to the case of Ganga Bai vs. Vijay Kumar, reported in (1974) 2 SCC 393 held that there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous it may be to claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. Although it is necessary that plaint in the suit must aver material facts and upon reading as a whole must disclose cause of action which can be entertained by Civil Court. Without these preliminaries, the plaint may be rejected in terms of Order VII, Rule 11 of the Code of Civil Procedure. However, as contemplated under Order XIV, Rules 1 and 2 of the Code of Civil Procedure, unless the plaint is manifestly vexatious or meritless not disclosing any clear right to suit when issues are raised in the suit by Written Statement and issues are framed, it was obligatory for the trial Court to proceed to hear the parties on merits upon the issues framed to seek evidence and then to decide the suit on merits as contemplated under Order XIV, Rules 1 and 2 of the Code. 16. The question sought to be argued on behalf of the respondents is that the defendants would have right to trees standing in the land allowed to them in view of Section 25 of the Maharashtra Land Revenue Code. This is again a mixed question of law and fact which is required to be decided by the trial Court on merits as the Court will have to consider whether pursuant to allotments made in the compromise, right to trees was also vested in the allottee by virtue of Section 25 of the Maharashtra land Revenue Code or whether the parties had compromised otherwise in respect of standing trees. 17. 17. While examining the impugned order passed under Order VII, Rule 11 (a) and (d) of the Code, I need not dwell upon the issue raised as to maintainability of the suit as I have observed that once the issues are framed on the basis of Written Statement filed by the defendants, it is obligatory for the trial Judge to hear the parties, receive evidence, if any and then to pronounce the Judgment on all issues notwithstanding the issue of maintainability raised by the parties in respect of the suit. Prima facie, on perusal itself, it is clear that the provisions under Order VII, Rule 11 of the Code of Civil Procedure and Order XIV therein operate at different stages of the suit and although trial Court has power of rejecting the plaint at any stage of the suit, the principles of law which are required to be considered by the Court in respect of decision to be taken under Order VII, Rule 11 of the Code of Civil Procedure are different than the principle of law which the trial Court must abide by after having framed the issues on the basis of Written Statement. Order VII, Rule 11 of the Code of Civil Procedure operates when the Court upon perusal of the plaint is satisfied that the plaint shall be rejected for non-disclosure of cause of action or if it is deliberately under valued or improperly valued for the purposes of payment of stamp duty or when it is barred by any law on the basis of statement made in the plaint itself or when plaintiff fails to comply with the directions of the Court in the matter of filing copies of the plaint or correction of valuation, court fees etc. In that case, upon perusal of the plaint itself, without looking into any evidence, examining merits of the matter, the Court may reject the plaint. Even, in that case, Order VII, Rule 13 of the Code of Civil Procedure provides that rejection of plaint does not preclude presentation of fresh plaint in respect of the same cause of action. In that case, upon perusal of the plaint itself, without looking into any evidence, examining merits of the matter, the Court may reject the plaint. Even, in that case, Order VII, Rule 13 of the Code of Civil Procedure provides that rejection of plaint does not preclude presentation of fresh plaint in respect of the same cause of action. Thus, right to file suit is inherent in the plaintiff and when parties have agitated the issues pursuant to their pleadings, Order XIV would make it obligatory for the trial Court to pronounce Judgment on all issues and to decide the suit on merits if so necessary on all issues. Thus, having examined this legal position and reading the impugned order, it must be concluded that the learned Judge has committed error of law in the facts and circumstances to reject the plaint under Order VII, Rule 11 of the Code of Civil Procedure. Hence, the Order. The impugned order is not sustainable. It is quashed and set aside. Parties are directed to approach the trial Court on 20.7.2015. The trial Court to proceed further with the suit accordingly. The learned Counsel for the respondents prays to keep this order in abeyance. The request is strongly objected by the appellant in view of the order passed by this Court today. In my opinion, since, prima facie, an error is apparent on the part of the learned trial Judge and having considered the legal position in respect of Order VII, Rule 11 as well as Order IX, Rules 1 and 2 of the Code of Civil Procedure. By detailed Judgment legal position is explained and it need not be kept in abeyance. Moreover, parties will have an opportunity to agitate their respective grievance in the trial Court. Hence, the prayer for stay is rejected.