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2016 DIGILAW 135 (UTT)

Mohd. Ramzan v. Mohd. Sammi

2016-03-22

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. By means of present writ petition, the petitioner seeks to: “Quash the impugned order dated 16.02.2016 passed in Civil Revision No. 98/15 (Annexure-4) as well as order dated 01.09.2015, passed by the Civil Judge (J.D.), Dehradun passed in Original Suit No. 199/2014, ‘Mohd. Sami vs. Ramzan (Annexure-3).” On the basis of pleadings of the parties an issue was framed by the Trial Court as follows: “Whether the suit is barred by Order 7 Rule 11 C.P.C.?” The only contention of the defendant before the Trial Court was that the plaintiff has not filed any document to show from where the plaintiff’s grandmother Smt. Asgari Jahan Begum obtained a right to execute the Will in favour of the plaintiff ? Admittedly, the Will has been brought on record of the Trial Court. The documents have also been filed to show that plaintiff’s grandmother has been recorded in the Municipal records. The contention of the defendant was that the grandmother of the plaintiff had no right to execute the Will, inasmuch as, she was not the owner of the property in question. The said issue of Order 7 Rule 11 C.P.C. was decided by the Trial Court in favour of the plaintiff. Aggrieved against the same, a Civil Revision was preferred by the defendant. The revisional court did not interfere in the order passed by the Trial Court. Aggrieved against the same, present Writ Petition has been filed by the defendant-petitioner. The scope of rejection of plaint has been given in Order 7 Rule 11 C.P.C. The same is being reproduced herein below for convenience: “11. The revisional court did not interfere in the order passed by the Trial Court. Aggrieved against the same, present Writ Petition has been filed by the defendant-petitioner. The scope of rejection of plaint has been given in Order 7 Rule 11 C.P.C. The same is being reproduced herein below for convenience: “11. Rejection of plaint.- The plaint shall be rejected in the following cases- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law.; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of Rule 9. Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or the requisite stamp-papers, as the case may be, within the time fixed by the curt and that refusal to extend such time would cause grave injustice to the plaintiff.” It is not a case in which the plaint does not disclose the cause of action. A case of under valuation and court fee is not before this Court. It is also not a case of insufficiency of payment of court fee. It is also not a case before this Court that the plaint is barred by any law. Further, it is also not within the ambit of non-compliance of Rule 9 C.P.C. and is, therefore, not covered by Order 7 Rule 11 C.P.C. so as to reject the plaint. Learned counsel for the petitioner placed a judgment rendered by Hon’ble Supreme Court in Rajnarain Sarin(dead) through Lrs. Further, it is also not within the ambit of non-compliance of Rule 9 C.P.C. and is, therefore, not covered by Order 7 Rule 11 C.P.C. so as to reject the plaint. Learned counsel for the petitioner placed a judgment rendered by Hon’ble Supreme Court in Rajnarain Sarin(dead) through Lrs. And others vs. Laxmi Devi and others, reported in (2002) 10 Supreme Court Case 501, relevant portion of which is being reproduced herein below for convenience: “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 7 Rule 11 of the Code of Civil Procedure taking care to see that the ground mentioned therein is fulfilled since bogus litigation ought to be shot down at the earliest stage.” As has been discussed above, in the instant case, the plaintiff has disclosed a clear right to sue and, therefore, Rajnarain Sarin vs. Laxmi Devi’s decision (supra) is not applicable to the facts of this case. Further, learned counsel for the petitioner also drew attention of this Court towards para 12 of Sopan Sukhdeo Sable and others vs. Assistant Charity Commissioner and others, reported in (2004) 3 Supreme Court Cases 137. Said para is being reproduced herein below for reference: “12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code.” Present case does not appear to fall within the definition of ‘Illusion of a cause of action’. Therefore, the facts of Sopan Sukhdeo Sable and others vs. Assistant Charity Commissioner and others’ (supra) are distinguishable from the facts of this case. Writ Petition, therefore, fails and is, accordingly, dismissed at the admission stage.