Research › Search › Judgment

Bombay High Court · body

2020 DIGILAW 207 (BOM)

Gauri Venkatraman v. Vasantrao

2020-01-28

MANISH PITALE

body2020
JUDGMENT : 1. By this revision application, the applicant (original defendant No.2 has challenged order dated 18/11/2019, passed by the Court of Civil Judge (Junior Division), Nagpur, whereby an application filed under Order 7 Rule 11(a) of the Code of Civil Procedure (CPC), has been rejected. 2. The respondent No.1 (original plaintiff) filed suit for declaration and mandatory injunction against the applicant and the respondent No.2 herein. The respondent No.1 has stated in the plaint that he is member of the respondent No.2 – High Court Bar Association (Association) and that he is aggrieved by a resolution dated 16/08/2019, passed by the respondent No.2 – Association, whereby the applicant herein was elected as President of the said Association. 3. Elections for electing members of the Executive Council of the respondent No.2 – Association were held on 10/02/2017, when the applicant was elected as Vice- President of the said Association. On the President of the respondent No.2 – Association being elevated as a Judge of this Court, he tendered his resignation from the said post and a meeting was held on 16/08/2019, wherein a resolution was passed by the respondent No.2 – Association electing the then Vice-President i.e. applicant herein as President of the respondent No.2 – Association for the remaining period of the said Executive Council. It is relevant that the term of the said Executive Council would expire in February 2020. 4. In the plaint, the respondent No.1 has claimed that such resolution passed by the Executive Council of the respondent No.2 – Association was illegal, as it violated the articles of the Constitution of the respondent No.2 –Association. It was claimed that there was no provision in the Constitution of the respondent No.2 – Association for electing President from amongst members of the Executive Council, upon the post of the President falling vacant. It was further claimed that the President of the said Association could be only directly elected by the members of the said Association. It was claimed that the cause of action for filing the suit arose for the respondent No.1 on 16/08/2019, when the said resolution was passed by the Executive Council of the respondent No.2 – Association. On this basis, it was prayed that the said resolution be declared as illegal and that a further order be granted restraining the applicant herein from continuing on the post of President of the said Association. 5. On this basis, it was prayed that the said resolution be declared as illegal and that a further order be granted restraining the applicant herein from continuing on the post of President of the said Association. 5. The applicant filed her written statement in the said suit on 02/11/2019. Thereafter, on 08/11/2019, the applicant filed an application before the Court below under Order 7 Rule 11(a) of the CPC, praying for rejection of the plaint on the ground that it did not disclose any cause of action. On 15/11/2019, the respondent No.1 filed his reply opposing the said application. By the impugned order dated 18/11/2019, the said application filed by the applicant herein was rejected. It was held that the applicant was not justified in claiming that the respondent No.1 did not have locus standi to file the suit and further that the contentions sought to be raised in the said application under Order 7 Rule 11(a) of the CPC, could be considered at the time of hearing and that rejection of the plaint was not warranted. 6. On 22/11/2019, this Court issued notice in the present revision application and granted stay of further proceedings before the Court below. Mrs. R.S. Sirpurkar, learned counsel appearing for the applicant submitted that the Court below failed to appreciate the averments and pleadings made in the plaint and the specific contentions raised on behalf of the applicant regarding absence of any cause of action for respondent No.1 to file the aforesaid suit. It was submitted that the respondent No.1 had failed to demonstrate in the plaint as to what was his grievance and cause of action that prompted him to file the suit. It was submitted that the law pertaining to rejection of plaint, clearly laid down that vexatious and frivolous suits ought not to be entertained and that they could be thrown out at the threshold. It was submitted that the claims made by the respondent No.1 in the plaint in the context of the articles of the Constitution of the respondent No.2 – Association, on the face of it, were not sustainable and that, therefore, such a suit did not deserve to be taken to trial. On this basis, it was submitted that the impugned order deserved to be set aside. 7. The learned counsel placed reliance upon judgments of the Hon’ble Supreme Court in the case of T. Arivandandam Vs. On this basis, it was submitted that the impugned order deserved to be set aside. 7. The learned counsel placed reliance upon judgments of the Hon’ble Supreme Court in the case of T. Arivandandam Vs. T.V. Satyapal and another (1977) 4 SCC 467 and Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal (2017) 13 SCC 174 . 8. Mr. Abhay Sambare, learned counsel appearing for the respondent No.2 – Association supported the contentions raised on behalf of the applicant contending that even if the contents of the plaint were read with the articles of the Constitution of the respondent No.2 – Association, it was evident that there was absolutely no substance in the grievance sought to be raised by the respondent No.1 and further that there was no cause of action made out in the said plaint. The learned counsel appearing the applicant as well as the respondent No.2 – Association emphasized upon the fact that the respondent No.1 was a member, who had contested elections for various posts, including the post of President, repeatedly and having faced defeats by huge margins he was unnecessarily seeking to raise frivolous issues against the applicant as well as the respondent No.2 – Association. 9. On the other hand, the respondent No.1 appearing in person submitted that the Court below had correctly exercised jurisdiction while considering the application for rejection of plaint filed on behalf of the applicant. It was submitted that in limited revisional jurisdiction, this Court could not interfere with the well reasoned order passed by the Court below. It was submitted that a proper reading of the articles of the Constitution of the respondent No.2 – Association would show that the President of the said Association could be only directly elected by the Members and that, therefore, impugned resolution dated 16/08/2019, passed by the Executive Council of the respondent No.2 – Association was illegal and unsustainable. It was submitted that the plaint contained sufficient averments to disclose specific cause of action that arose for the respondent No.1 and that, therefore, the suit deserved to go to trial. It was also specifically contended that the applicant as well as the respondent No.2 were seeking to avoid examination and scrutiny of the illegal manner in which they had acted and while passing the impugned resolution dated 16/08/2019. On this basis, it was submitted that the revision application deserved to be dismissed. 10. It was also specifically contended that the applicant as well as the respondent No.2 were seeking to avoid examination and scrutiny of the illegal manner in which they had acted and while passing the impugned resolution dated 16/08/2019. On this basis, it was submitted that the revision application deserved to be dismissed. 10. Heard learned counsel for the parties, as also the respondent No.1 in person and perused material on record. The applicant has specifically relied upon Order 7 Rule 11(a) of CPC, to seek rejection of the plaint on the ground that the plaint did not disclose cause of action. The Hon’ble Supreme Court has held that such power for rejection of plaint under Order 7 Rule 11 of CPC has to be sparingly exercised, because the suit filed by the plaintiff is sought to be nipped in the bud, by rejection of the plaint itself. It is settled position of law that even if such power has to be exercised sparingly, it can certainly be exercised to put an end to vexatious and frivolous litigation, at the threshold. To that extent the learned counsel appearing for the applicant is justified in relying upon the judgment of the Hon’ble Supreme Court in the case of Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal (supra). In the case of Church of Christ Charitable Trust Vs. M/s. Ponniamman Educational Trust, 2012 (8) SCC 706 , the Hon’ble Supreme Court has held in the context of application filed under Order 7 Rule 11 of CPC, that the plaint averments need to be scrutinized by the Court to ascertain the material for cause of action. It is laid down that cause of action is a bundle of facts and that every fact is necessary for the plaintiff to prove to secure a decree and that such facts should be set out in clear terms. 11. Therefore, it is clear that while considering the application for rejection of plaint under Order 7 Rule 11 of CPC, the Court is not to look at the written statement or any other material sought to be placed on record by the defendant, but, the Court has only to look at the plaint and its averments. 11. Therefore, it is clear that while considering the application for rejection of plaint under Order 7 Rule 11 of CPC, the Court is not to look at the written statement or any other material sought to be placed on record by the defendant, but, the Court has only to look at the plaint and its averments. It is also significant that since the documents filed along with the plaint form part of the plaint, the Court can certainly look at the documents filed along with the plaint, while considering the application for rejection of plaint under Order 7 Rule 11 of the CPC. This position has been recognized by this Court in the case of Gyoki Masajuki Malda Vs. Aisha Construction and others 1998 SCC online Bom 717. In this judgment while referring to a judgment of the Rajasthan High Court in the case of Bhagwan Das Vs. Goswami Brijesh Kumarji and others, AIR 1983 Rajasthan 3, it has been held as follows : “5. The contentions of the learned counsel for the respondent that the pleadings in the plaint are to be read along with documents annexed thereto and that, therefore, upon such reading, the case of the petitioner would apparently appear to be hit by Section 4 of the said Act is devoid of substance. There is no doubt that the documents annexed to the plaint form part of plaint and the contents of the said documents can be considered while exercising powers under Order 7 Rule 11 of CPC. But as observed, by the learned Single Judge of the Rajasthan High Court in the decision relied upon by the Advocate for the respondents, it is to be remembered that averments made in the plaint as well as documents which may constitute part of the plaint may be certainly looked into, but the veracity of the contents of any such documents cannot be considered at the stage of deciding application under Order 7 Rule 11.” 12. Thus, it has been laid down that the documents filed along with the plaint can certainly be looked into at the stage of considering application under Order 7 Rule 11 of CPC, but, the veracity of the contents of such documents cannot be considered at this stage. 13. In this backdrop, the facts of the present case need to be considered. 13. In this backdrop, the facts of the present case need to be considered. Since the documents filed along with the plaint can be looked into by the Court while considering the application for rejection of plaint under Order 7 Rule 11 of CPC, the Constitution of the respondent No.2 – Association can also be perused by this Court in the context of the specific pleadings on behalf of the respondent No.1 in the plaint. The cause of action claimed by the respondent No.1 in paragraph 20 and at other places in the plaint is that the resolution passed by the Executive Council of the respondent No.2 – Association was illegal for the reason that under the articles of the Constitution of the respondent No.2 – Association, the Executive Council had no power or authority to elect President of the Association even if vacancy occurred in the office of any office-bearer or member of the Executive Council, during the period of three year term of the Executive Council. It has been specifically averred in the plaint that in the instant case when the vacancy arose in the post of President, it could only be filled by election through members of the Association and not by the Executive Council. Specific reference was made to Articles 6 and 7 of the Constitution in this regard. 14. As the Court can certainly look into the documents filed along with the plaint and in the present case a copy of the Constitution of the respondent No.2 – Association was indeed filed along with the plaint by the respondent No.1 before the Court below, the Court could certainly look into the said documents to examine whether the very basis of the cause of action claimed by the respondent No.1 was made out. As noted above, specific reference has been made on behalf of the respondent No.1 to certain articles of the Constitution, to claim that cause of action arose for him. But, a perusal of articles 6, 7, 8 and 9 of the Constitution of the respondent No.2 – Association show that specific averments and pleadings raised in the plaint on behalf of the respondent No.1 are wholly unsustainable and no cause of action could arise for the respondent No.1 in view of the said articles of the Constitution on which the respondent No.1 himself has placed much reliance. 15. 15. This is because, according to the respondent No.1, the said articles of the Constitution show that the Executive Council of the respondent No.2 – Association could not have taken any steps for filling the vacancy in the post of President, which fell vacant before expiry of three years term of the Executive Council. It is specifically pleaded that only the members of the respondent No.2 – Association could elect the President. On this basis, it is claimed that resolution dated 16/08/2019, whereby the applicant was elected as President of the respondent No.2 – Association by the Executive Council, was illegal. 16. Article 6 of the Constitution provides that there shall be six office-bearers elected from amongst the members of the Association, including the President of the Association. Article 7 provides that the Executive Council shall comprise of all six office-bearers and other nine members of the Association elected from the members of the Association. Article 7(c) provides that the Executive Council shall appoint an Election Officer or an Election Committee to conduct elections of office-bearers of the Executive Council. Article 8 provides that all office-bearers and members of the Executive Council shall hold office for a period of three years commencing from the date of their election, further providing for a contingency when the term of the Executive Council expires. Article 9 is most crucial for the present case. It reads as follows : “After the General Election should any vacancy occur in the office of an office-bearer or that of a member of the Executive Council, it may be filled by the Executive Council. A report of the vacancies so filled shall be made to the Association at its next meeting, for record.” 17. As is obvious from the above quoted article of the Constitution any vacancy that occurs in the office of an office bearer, can be filled by the Executive Council and that, the report of such filling of vacancy by the Executive Council shall be made to the respondent No.2 – Association at its next meeting for record. As is obvious from the above quoted article of the Constitution any vacancy that occurs in the office of an office bearer, can be filled by the Executive Council and that, the report of such filling of vacancy by the Executive Council shall be made to the respondent No.2 – Association at its next meeting for record. The aforesaid article completely destroys the stand taken by the respondent No.1 in his averments and pleadings in the plaint, that when the vacancy for the post of the President occurred in the present case before expiry of three years term of the Executive Council elected on 10/02/2017, the Executive Council of the respondent No.2 – Association could not have passed resolution dated 16/08/2019, for filling up the vacancy of the President. Therefore, the very basis of the alleged cause of action regarding illegality of the resolution dated 16/08/2019, is taken away by a bare reading of the plaint along with document i.e. Constitution of the respondent No.2 –Association, filed along with the plaint. 18. It is pleaded by the respondent No.1 himself in the plaint that vacancy in the post of the President of the respondent No.2 – Association occurred on 16/08/2019, when the then President resigned. It is also specifically pleaded that the Executive Council of the respondent No.2 – Association passed a resolution whereby the applicant herein became the President of the respondent No.2 – Association. These specific pleadings and facts admitted by the respondent No.1 himself show that resolution dated 16/08/2019, was clearly in consonance with the above quoted Article 9 of the Constitution of respondent No.2 – Association. Therefore, the cause of action pleaded by the respondent No.1 that the aforesaid resolution dated 16/08/2019, passed by the Executive Council of the respondent No.2 – Association was illegal as it was contrary to the articles of the Constitution, is not made out on bare reading of the plaint along with such document filed along with the plaint i.e. Constitution of the respondent No.2 – Association. 19. This crucial aspect of the present case was not appreciated by the Court below while passing the impugned order. The Court below was expected to read the pleadings in the plaint along with the aforesaid documents filed along with the plaint to examine whether any cause of action was disclosed. 19. This crucial aspect of the present case was not appreciated by the Court below while passing the impugned order. The Court below was expected to read the pleadings in the plaint along with the aforesaid documents filed along with the plaint to examine whether any cause of action was disclosed. As noted above, the respondent No.1 miserably failed to make out any cause of action to support the prayers made in the plaint. The said plaint certainly falls in the category of vexatious and frivolous suits, which deserve to be nipped in the bud. This Court has not looked at the written statement filed on behalf of the respondent or contentions raised on behalf of the applicant as well as the respondent No.2 – Association that the respondent no.1 is a member of the Association, who has lost elections repeatedly and that, therefore, he has filed the aforesaid frivolous suit, only to harass the applicant as well as the respondent No.2 – Association. This Court is not concerned with such contentions raised on behalf of the applicant and the respondent No.2 – Association. 20. This Court has only looked at the plaint averments and pleadings, as also the contents of the document filed along with the plaint in the form of Constitution of the respondent No.2 – Association. By applying the law laid down by the Hon’ble Supreme Court in the context of Order 7 Rule 11 of CPC, this Court finds that a grave error was committed by the Court below by rejecting the application filed on behalf of the applicant herein. The present plaint does not disclose any cause of action for the respondent No.1 to have rushed to the Court, seeking declaration and mandatory injunction. Therefore, it is found that the Court below certainly committed a jurisdictional error while passing impugned order. 21. In view of above, the revision application is allowed. The impugned order passed by the Court below is quashed and set aside and the application for rejection of plaint filed by the revision applicant under Order 7 Rule 11(a) of CPC (Exh.22), is allowed. Accordingly, the plaint stands rejected. 22. There shall be no order as to costs.