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2015 DIGILAW 828 (CAL)

Bharat Coking Coal Ltd. v. Turner Morrison Ltd.

2015-09-30

SOUMEN SEN

body2015
Judgment Soumen Sen, J. Turner Morrison Limited has filed this application for dismissal of the suit on the ground that the plaint does not disclose any cause of action. The applicant says that the plaintiff has filed a suit praying, inter alia, for a declaration that there was no relationship between the plaintiff and the defendant as landlord and tenant, although the plaintiff by several communications and pleadings filed in earlier proceedings has admitted and acknowledged the defendant to be the landlord and had paid rents. Mr. S.K. Kapoor, learned Senior Counsel appearing on behalf of the applicants, submits that the basis of the plaint is discovery in October, 2012 by the plaintiff that by reason of the provisions of the Coal Mines (Nationalisation) Act, 1972, the property forming the subject matter of the suit has vested in the plaintiff and by reason thereof, the defendant is not the owner of the property and, accordingly, the plaintiff is not obliged to make any payment to the defendant. The plaintiff says that the plaintiff has treated itself as a tenant by virtue of fraudulent representations made by the defendant that they are the owners of the property and on the aforesaid basis, the plaintiff had paid rent since 1973. The plaintiff has been advised that since the defendant no.2, Lodna Colliery Company Limited was owning the suit premises, the said ownership right along with its assets and properties stood transferred to and vested on the plaintiff by virtue of the Coal Mines (Nationalisation) Act absolutely and free from all encumbrances. The learned Senior Counsel submits that the plaint does not have any spine and backbone to stand and an incredible story has been spun of an alleged discovery in the month of October, 2012 as to the legal status of the plaintiff in respect of the suit premises. The learned Senior Counsel has referred to the pleadings of the plaint and submits that the pleadings are so absurd and incredibly ridiculous that this Court in exercise of its power under Order 7 Rule 11 read with Section 151 of the CPC should dismiss the plaint. It is submitted that the plaint was filed after receiving notice under Section 106 of the Transfer of Property Act. The plaintiff in answer to the said notice did not assert its right of ownership in respect of the properties in question. It is submitted that the plaint was filed after receiving notice under Section 106 of the Transfer of Property Act. The plaintiff in answer to the said notice did not assert its right of ownership in respect of the properties in question. The plaintiff has failed to disclose any document to show that Lodna Colliery was the owner of the said property and almost after 40 years the defendant suddenly discovered and claimed ownership of the property by initiating this vexatious proceeding. The plaintiff has initiated this dishonest proceeding pretending ownership although, in fact, the plaintiff had accepted the defendant as owner of the property for the last 40 years and never, at any point of time, asserted its right as owner of the property in question. Mr. Kapoor has also criticized the verification clause and submitted that the basis of the plaint appears to be on discovery of certain materials which have not been disclosed in this proceeding at all. The germination of the supposed cause of action for the suit has not been disclosed and is missing. It is, thus, submitted that the suit is liable to be dismissed on the ground of non-disclosure of a cause of action. It is further submitted that the suit is expressly barred by limitation since the plaintiff cannot take advantage of Article 112 of the Limitation Act, 1963 (West Bengal Amendment Act, XVIII 1977). Since the cause of action if any available to the plaintiff arose prior to 1977 and under the unamended provision Government Company was not included the suit is ex facie barred by law. In this regard the learned Senior Counsel has relied upon a decision of the Vindhya Pradesh High Court in Bank of Baghelkhand Vs. Dr. Ram Prasad & Ors. reported at AIR 1954 VP 1. It is further submitted that mistake of law cannot be the basis of a cause of action and in this regard reference was made to the decision of the Hon’ble Supreme Court in Dhanyalakshmi Rice Mills versus The Commissioner of Civil Supplies & Anr. reported at AIR 1976 SC 2243 (paragraph 31) and Union of India versus Lal Chand & Sons reported at AIR 1967, Calcutta 310 (paragraph 22). The sum and substance of the submission appears to be that the plaint is full of lies and no backbone to stand. Mr. reported at AIR 1976 SC 2243 (paragraph 31) and Union of India versus Lal Chand & Sons reported at AIR 1967, Calcutta 310 (paragraph 22). The sum and substance of the submission appears to be that the plaint is full of lies and no backbone to stand. Mr. Pradip Dutta, learned Senior Counsel appearing on behalf of the plaintiff, submits that at the stage of deciding an application for rejection of the plaint the averments made in the plaint are required to be taken as correct. The plaintiff has stated that the defendant no.2 was the managing agent and subsidiary of the defendant no.1 as recorded in Coal Directory of India 1970 published by the office of the Coal Controller and Chairman, Coal Board, Government of India. The plaintiff was not aware that by reason of the Nationalization Act, the asset of the said defendant no.2 is vested in the plaintiff inasmuch as the fact that said defendant no.2 was the owner of the suit property was not earlier known to the plaintiff. The plaintiff becomes the owner of the said property by operation of law. If the defendant no.1 is not the owner of the said property then the question of evicting the plaintiff from the said premises cannot and does not arise inasmuch as it is a matter of evidence and required to be decided at the trial of the suit as to whether the contention of the defendant that, by fraudulent representation, the defendant no.1 had realized the rents for all these years until the discovery of the fact by the plaintiff in the month of October 2012 was correct. The plaintiff should be given an opportunity to establish such facts at the trial of the suit. It is further submitted that in the plaint particulars of fraud has been pleaded. If the plaintiff was not aware of the legal status of the plaintiff prior to October 2012 the suit cannot be dismissed on the ground of barred by limitation. There is a distinction between a plaint not disclosing a cause of action and the plaintiff has no cause of action to sue. A decision as to whether the plaint discloses no cause of action the Court is required to read the plaint in a meaningful manner and take the averments in the plaint to be correct. There is a distinction between a plaint not disclosing a cause of action and the plaintiff has no cause of action to sue. A decision as to whether the plaint discloses no cause of action the Court is required to read the plaint in a meaningful manner and take the averments in the plaint to be correct. The plaintiff may have a cause of action which ultimately may not succeed that is no consideration for the plaint to be rejected at the initial stage. If the averments of the plaint are taken as a whole it cannot be said that the plaint does not disclose any cause of action. Whether the 1970 Coal Directory or for that matter any other document disclosed at the time of the trial would be or could be of any aid to the plaintiff is establishing its right is no consideration at this stage in deciding an application for rejection of plaint. The Court also at this stage cannot decide the merits of the claim. The plaintiff has claimed ownership by operation of law. On a true and meaningful reading of the plaint it shows that the plaintiff claims ownership by operation of law. Whether the plaintiff would succeed on such a cause of action is too early to predict and shall stand to trial. In so far as the plea of limitation is concerned unless the suit is expressly barred by the laws of limitation the plaintiff shall not be non-suited. It is settled law that for determining whether the plaint is liable to be rejected under Clause (a) of Rule 11 of Order 7, averments in the plaint alone are material and relevant and nothing else. It is clear that the plaintiff has pleaded a cause of action for filing the suit seeking reliefs stated therein. That is not to say that the plaintiff has cause of action to file the suit for the reliefs sought. The question is to be determined on the basis of materials (other than the plaint) on record. In that case, Order 7 Rule 11(a) has no application. This distinction of non-existence of cause of action and nondisclosure cause of action has been recognized in State of Orissa Vs. Kolckna Company Ltd. ( 1996 (8) SCC 377 ). The question is to be determined on the basis of materials (other than the plaint) on record. In that case, Order 7 Rule 11(a) has no application. This distinction of non-existence of cause of action and nondisclosure cause of action has been recognized in State of Orissa Vs. Kolckna Company Ltd. ( 1996 (8) SCC 377 ). In (1988) QBD 128, Lord Esher M.R., defined “cause of action” to mean “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.” Fry L. J., agreed and said :- “Everything which, if not proved, gives the defendant an immediate right to judgment must be part of the cause of action.” To put it in a concise form, the words “cause of action” means the whole bundle of material facts which are necessary for the plaintiff to prove, in order to entitle him to the reliefs claimed in the suit Order 7 Rule 11 required the plaintiff to incorporate in the plaint the facts constituting the cause of action. The plaintiff is required to plead all material facts upon which his right to relief is based and from which court can arrive at a conclusion in his favour. Such “cause of action” generally means a situation or state of facts that entitles a party to maintain an action in court, the material facts imperative for claimant to allege and prove, constitute cause of action that helps plaintiff to obtain decree. The phrase ‘does not disclose cause of action’ as used in Order 7 Rule 11(a) has to be narrowly construed. This power of rejection of plaint ought to be used only when court is absolutely sure that plaintiff does not have an arguable case at all. The expression “cause of Action” as used in this rule does not mean a claim which is still enforceable under the law of limitation. Where, therefore, a suit is barred by time it cannot be said that the plaint does not disclose a cause of action, and that it cannot be dealt with under clause (a). The Court may, however, proceed under clause (d). In view of the aforesaid, G.A. No. 2797 of 2013 stands dismissed. Where, therefore, a suit is barred by time it cannot be said that the plaint does not disclose a cause of action, and that it cannot be dealt with under clause (a). The Court may, however, proceed under clause (d). In view of the aforesaid, G.A. No. 2797 of 2013 stands dismissed. However, there shall be no order as to costs. I make it clear that I have not gone into the merits of the matter and the observations made in this judgment are only for the purpose of determination of the issue raised in the petition.