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2020 DIGILAW 1041 (ALL)

Nalini Singh v. Lt. Col. Rajesh Kumar Singh

2020-07-28

ANIL KUMAR, SANGEETA CHANDRA

body2020
JUDGMENT : Anil Kumar, J. 1. Heard Sri Ram Raj, learned counsel for the appellant. 2. Present first appeal under section 19(1) of the Family Court Act has been filed by the appellant against the order dated 11.02.2020 passed by learned Additional Principal Judge, Family Court, Court no.1 Lucknow in Regular Suit No.1274 of 2017 (Lt. Col. Rajesh Kumar Singh Vs. Mrs. Nalini Singh) whereby application filed by the appellant under Order 7 Rule 11 of C.P.C. has been rejected. 3. Facts, in brief, as submitted by learned counsel for the appellant are that marriage of appellant and respondent was solemnized according to Hindu Rites and Customs on 13..02.2005 at Nakodha Garden, Swaroop Sagar Choraya, Udaipur(Rajasthan). 4. Thereafter their matrimonial relation became estranged, so respondent/ Lt. Col. Rajesh Kumar Singh filed a Petition under Section 11 read with Section 12 read with section 13 of the Hindu Marriage Act, 1955, registered as Regular Suit No.1274 of 2017 (Lt. Col. Rajesh Kumar Singh Vs. Smt. Nalini Singh) in the Court of Principal Judge, Family Court, Lucknow with the following relief:- “A decree be kindly be passed under Section 11 of the Hindu Marriage Act, 1955,declaring the marriage of the parties dated 13.02.2005 as ab-initio null and void by a decree of nullity for the reason that the defendant had a spouse living at the time of her marriage with the plaintiff Or in the alternative, A decree be kindly be issued under section 12 of the Hindu Marriage Act,1955, declaring the marriage of the parties dated 13.02.2005 as null and void and annulled by a decree of nullity, for the reason that the consent of the plaintiff had been obtained by fraud and also for want of free and fair consent as aforesaid. Or in the alternative A decree of divorce be kindly passed under Section 13 of the Hindu Marriage Act, 1955 dissolving the marriage of the parties dated 13.02.2005. b. The cost of suit be also awarded in favour of he plaintiff against the defendant. c. Any other relief which the Hon’ble Court deems just and proper be also granted.” 5. On 25.10.2019 appellant/defendant had filed her written statement. 6. Learned counsel for the appellant further submits that on 15.03.2019 an application under Order 7 Rule 11 C.P.C. read with Section 151 C.P.C. had been filed by the appellant/ defendant, registered as Application no. c. Any other relief which the Hon’ble Court deems just and proper be also granted.” 5. On 25.10.2019 appellant/defendant had filed her written statement. 6. Learned counsel for the appellant further submits that on 15.03.2019 an application under Order 7 Rule 11 C.P.C. read with Section 151 C.P.C. had been filed by the appellant/ defendant, registered as Application no. C-14 to which respondent/plaintiff had filed objection on 23.03.2019. 7. By order dated 11.02.2020, Additional Principal Judge, Family Court no.1, Lucknow rejected the appellant’s application under Order 7 Rule 11 C.P.C. read with Section 151 C.P.C. 8. Learned counsel for the appellant while challenging the impugned order submits that Additional Principal Judge, Family Court, Court no.1 Lucknow while passing the impugned order dated 11.02.2020 in Regular Suit No.1274 of 2017; Lt. Col. Rajesh Kumar Singh Vs. Smt. Nalini Singh has committed serious error of both law and fact in rejecting the application preferred by the appellant under Order 7 Rule 11 C.P.C. and has passed the impugned order on conjectures and surmises. 9. On behalf of the appellant, it has also been argued that the court below has arbitrarily and illegally rejected the appellant’s application under Order 7 Rule 11 C.P.C. without considering the documentary evidence submitted by the appellant proving that the plaintiff/respondent had full and definite knowledge of appellant’s earlier marriage on 13.02.2005 itself and the plaintiff/respondent had filed online documents uploaded in his own handwriting on 20.05.2015 to the passport department. 10. So the impugned order dated 11.02.2020 passed by court below is liable to be set aside primarily on the ground that the said order is in violation of a settled principle of law that a person who does not come to the court / judicial forum with clean hands is not entitled to be heard on merits of his grievance and in any case, such person is not entitled to any relief from the Court. 11. 11. In this regard it is further submitted that court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute stream of justice by resorting to falsehood or by making misstatements or by suppressing facts which have a bearing on adjudication of the case; the plaintiff/respondent since did not come with clean hands before the court below, he is not entitled to be heard and indeed, such a person is not entitled to any relief from any judicial forum, thus the application under order 7 Rule 11 ought to have been allowed by the court below as the same was filed without disclosing a true cause of action. 12. In this regard, he has placed reliance in paragraph 49 of the plaint reads thus: “49. That the cause of action in favour of the plaintiff against the defendant firstly accrued on 13.02.2005, on the date of the marriage of the parties itself, as the defendant had a spouse living at the time of her marriage with the plaintiff and if it had been known to the plaintiff, the plaintiff would never have got involved in the matrimonial relationship with the defendant and alternatively the cause of action again accrued in favour of the plaintiff against the defendant in March, 2017 when the said fraud of concealment of the said material fact of her subsisting marriage accidentally came to the knowledge of the plaintiff who realized that his consent for the said marriage was obtained by the said fraud committed by the defendant and her parents on him and his family and further alternatively the cause of action has accrued in favour of the plaintiff against the defendant repeatedly and throughout the continuation of the matrimonial relationship between the parties as the defendant has throughout, repeatedly and continuously treated the plaintiff with utmost mental and physical cruelty. The aforesaid cause of action in faour of the plaintiff against the defendant has accrued in Lucknow as the parties have lastly resided together as husband and wife and Lucknow at House No.37/2 MGSF Qaurters, MG road, Lucknow Cantt-226002 (U.P.) under the jurisdiction of this Hon’ble Court and the cause of action continues till the relief prayed by the plaintiff in finally granted.” 13. Learned counsel for the appellant also submits that in view of the averments made in para 49 of the plaint it transpires that the facts which are stated by the plaintiff/respondent therein are wholly incorrect and wrong. In the said paragraph plaintiff/respondent incorrectly stated that alternative cause of action again accrued in his favour against the defendant in March, 2017. It amounts to concealment of material fact as on the said date no cause of action accrued in favour of plaintiff in regard to filing of suit which accrued prior to that date so the suit filed by the plaintiff deserved to be dismissed. However, the court below has manifestly erred on both law by facts and not considering the said fact and passing the impugned order which is contrary to provisions as provided under Order 7 Rule 11 C.P.C. 14. In support of his arguments, learned counsel for the petitioner has placed reliance on the following judgments: 1. Canara Bank Vs. P. Selathal and others (2020) SCC Online Supreme Court 245. 2. T. Arivandandam Vs. TV Satyapal and another (1977) 4 SCC 467 . 3. ITC Limited Vs. Debt Recovery Appellate Tribunal and others (1998)2 SCC 70 4. F.B. Smt. Kiran Bala Srivastava Vs. Jai Prakash Srivastava 2005 LCD 1 F.B. 15. Accordingly, Sri Ram Raj, learned counsel for the appellant submits that the impugned order may be set aside and the present First Appeal may be allowed. 16. We have heard learned counsel for the appellant and perused the record. 17. In order to decide the controversy involved in the preset case, we feel appropriate to go through the relevant provisions under Order 7 Rule 11 C.P.C. which reads as under:- Rule 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 from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.” 18. From the bare perusal of aforesaid provisions the position which emerges out is that the plaint can be rejected only if it appears from the statement in the plaint to be barred by any law. Even if the expression of the statement in the plaint is given a liberal meaning, documents filed with the plaint may be looked into but nothing more. The court must give a meaningful reading to the plaint and if it is manifestly vexatious or meritless in the sense of not disclosing a clear right to sue, the court may exercise its power under Order 7 Rule 11 of the Code of Civil Procedure, 1908. (See Bhagwati Prasad Misra Vs. Deputy Commissioner, Barabanki, AIR 1945 Oudh 177 and Manohar Lal Chatrath Vs. Municipal Corporation of Delhi, AIR 2000 Del 40 ). 19. Further, for the purpose of deciding an application under this Rule, it is only the facts pleaded in the plaint which are to be taken into account and if on the basis of those facts the plaint falls within any of the infirmities enumerated in Rule 11 of Order 7, then alone the plaint is liable to be rejected. (See Rakesh Kumar Vs. Umesh Kumar, AIR 2009 Del 129 ). 20. Hon’ble the Apex Court in the case of T. Arivandandam (Supra) has held as under :- “We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. (See Rakesh Kumar Vs. Umesh Kumar, AIR 2009 Del 129 ). 20. Hon’ble the Apex Court in the case of T. Arivandandam (Supra) has held as under :- “We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif’s Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. 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, be should exercise his power under Or. VII r. 1 1 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 X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage. The Penal Code (Ch. XI) is also resourceful enough to meet such men, and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi "It is dangerous to be too good." 21. In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem (1989) 2 SCC 163 , Hon’ble the Apex Court explained the meaning of “cause of action” as follows: “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 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.” 22. The Apex Court in I.T.C. Limited Vs. Debt Recovery Appellate Tribunal and others (1998)2 SCC 70 in para 16 and 27 held as under:- “16. Question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 C.P.C. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. (See T. Arivandandam vs. T.V. Satyapal & Another [ 1977 (4) SCC 467 ]) 27. As stated above non-movement of goods by the seller could be due to a variety of tenable or untenable reasons, the seller may be in breach of the contract but that by itself does not permit a plaintiff to use the word “fraud’’ in the plaint and get over any objections that may be raised by way of filing an application under Order 7 Rule 11 CPC. As pointed out by Krishna Iyer, J. in T. Arivandandam’s case, the ritual of repeating a word or creation of an illusion in the plaint can certainly be unravelled and exposed by the Court while dealing with an application under Order 7 Rule 11(a). Inasmuch as the mere allegation of drawal of monies without movement of goods does not amount to a cause of action based on ‘fraud’, the Bank cannot take shelter under the words ‘fraud’ or ‘misrepresentation’ used in the plaint.” 23. In the case of Sopan Sukhdeo Sable Vs. Inasmuch as the mere allegation of drawal of monies without movement of goods does not amount to a cause of action based on ‘fraud’, the Bank cannot take shelter under the words ‘fraud’ or ‘misrepresentation’ used in the plaint.” 23. In the case of Sopan Sukhdeo Sable Vs. Assistant Charity Commissioner (2004) 3 SCC 137 , Hon’ble the Apex Court in para 11 and 12 has observed as under:- “11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal [ (1998) 2 SCC 70 ] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code. 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. (See T. Arivandandam v. T.V. Satyapal (supra).” 24. In the case of Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust (2012) 8 SCC 706 , Hon’ble the Apex Court in para-13 has held as under:- “13. While scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. 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. Every fact which is necessary for the Plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue.” 25. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue.” 25. Hon’ble the Apex Court in the case of Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal (2017) 13 SCC 174 has observed in para 7 as under :- “7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.” 26. In the case of Canara Bank ( supra) Hon’ble the Supreme Court after taking into consideration the relevant law on the issue in T. Arivandandam ( supra) case has held as under:- “At this stage, it is also required to be noted that the suits have been filed after a period of 15 years from the date of mortgage and after a period of 7 years from the date of passing of the decree by the DRT. In the plaints, it is averred that the plaintiffs came to know about the mortgage and the judgment and decree passed by the DRT only six months back. However, the said averments can be said to be too vague. Nothing has been averred when and how the plaintiffs came to know about the judgment and decree passed by the DRT and the mortgage of the property. Only with a view to get out of the law of limitation and only with a view to bring the suits within the period of limitation, such vague averments are made. On such vague averments, plaintiffs cannot get out of the law of limitation. There must be specific pleadings and averments in the plaints on limitation. Thus, on this ground also, the plaints were liable to be rejected. As observed hereinabove, the plaints are vexatious, frivolous, meritless and nothing but an abuse of process of law and court. Therefore, this is a fit case to exercise the powers under Order 7 Rule 11 (d) of the CPC. Both the courts below have materially erred in not rejecting the plaints in exercise of powers under Order 7 Rule 11(d) of the CPC. Both the courts below have materially erred in not exercising the jurisdiction vested in them.” 27. Therefore, this is a fit case to exercise the powers under Order 7 Rule 11 (d) of the CPC. Both the courts below have materially erred in not rejecting the plaints in exercise of powers under Order 7 Rule 11(d) of the CPC. Both the courts below have materially erred in not exercising the jurisdiction vested in them.” 27. In a nut shell, it can be said that for deciding whether the plaint discloses cause of action or not, the court has to see only the averments in the plaint and the accompanying documents relied upon in the plaint and the facts elicited from the plaintiff by examining him under Order 10 of the Code of Civil Procedure. For the purpose of deciding the application under Order 7 Rule 11 for rejecting the plaint, the court has also to presume the facts stated in the plaint as correct. 28. In the instant matter, the court below rejected the application moved by the appellant under Order 7 Rule 11 C.P.C. read with section 151 C.P.C. with the following observations:- ^^ ^^tgkW rd izFke vkifŸk dk iz'Uk gS vkns'k&7 fu;e&11 esa ;g izko/kku gS fd tgkW okn i= gsrqd izdV ugha djrk gS ogka okn i= ukeatwj dj fn;k tk;sxkA oknh }kjk izLrqr nkos ds voyksdu ls ;g Li"V gS fd okn i= dkxt la[;k ,&3 ds IkSjk 49 esa oknh dk okn dkj.k dks djeokj vafdr fd;k gS ftl ij izfrokfnuh dk dFku gS fd og fcuk vk/kkj ds vkSj iw.kZr;k vlR; gSA oknh }kjk izLrqr okn dkj.k lR; gS vFkok vLkR; gSA oknh }kjk izLrqr okn dkj.k lR; gS vFko vlR; gS ;g lk{;ksijkar gh r; gks ldrk gSA /kkjk 7 fu;e 11 ds v/khu okn i= dh vis{kk dsoy okn gsrqd izdV djuk gS u dh bl Lrj ij lR;rk vFkok vlR;rk ifjyf{kr gksuh gSA pwfd okn i= okn gsrqd izdV djrk gS ,sls fLFkfr esa vkns'k&7 fu;e&11 ds v/khu okn i= ukaetwj fd;s tkus dk dksbZ vkSfpR; vk/kkj ugh gSA^^ 29. Keeping in view the observations made by the court below while rejecting the application of the appellant under Order 7 Rule 11 C.P.C. read with section 151 C.P.C. as well as the settled legal proposition of law on the point in issue that the plaint filed by the plaintiff can only be rejected when the same is barred by any law or no cause of action has accrued to the plaintiff for filing the same. 30. However, from the bare perusal of the plaint in the instant matter, the said position does not exist, so we do not find any illegality or infirmity in the impugned order passed by the court below. 31. Further, appellant/ respondent cannot derive any benefit from the judugment given by a Full Bench of this Court in the case of Smt. Kiran Bala Srivastava Vs. Jai Prakash Srivastava, 2005 (23) LCD 1 as the same does not relate to the controversy relating to Order 7 Rule 11 read with section 151 C.P.C. 32. For the foregoing reasons, the first appeal lacks merit and is dismissed.