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2021 DIGILAW 250 (HP)

Rajiv Kant v. Govind Singh Pathania

2021-04-20

JYOTSNA REWAL DUA

body2021
JUDGMENT : JYOTSNA REWAL DUA, J. 1. An application for rejection of plaint moved at the stage of arguments by the defendants under Order 7 Rule 11 of the Code of Civil Procedure (in short O7 R11 CPC) has been turned down by the learned trial Court. Aggrieved, the defendants have filed instant petition. 2. Facts 2(i) A civil suit bearing No. 100/2004 was filed by the respondent for declaration to the effect that he was owner of the suit land. Various other reliefs were also prayed including permanent injunction for restraining the defendants from proclaiming any right, title or interest over the suit land. Further relief of possession by way of demolition of structure of petrol pump over the suit land was also prayed. Another prayer for recovery of rent and damages was also made. The cause title of the plaint reflected the plaintiff as son of Shri Harnam Singh Pathania. 2(ii) Written statement on behalf of the defendants was filed in the year 2004 itself, contesting the suit on various grounds available to them. It was also pleaded in the written statement that the plaintiff is son of General Anant Singh Pathania, who never gave the plaintiff in adoption to Shri Harnam Singh Pathania. Latter had no right to adopt the plaintiff as his son. The adoption of plaintiff by Harnam Singh was asserted to be contrary to the provisions of Hindu Adoption and Maintenance Act. 2(iii) The plaint was amended on 27.06.2007 by incorporating the word ‘adopted son’ in the plaint. Pursuant to the amendment, the plaintiff projected himself as an adopted son of Shri Harnam Singh Pathania. The order dated 27.06.2007 was not assailed by the defendants. 2(iv) After closure of the evidence led by the parties, the matter was fixed for arguments. At that stage, on 12.09.2018, the defendants moved an application under O7 R11 (a) and (d) CPC for rejection of plaint on the ground that plaintiff had filed the suit as an adopted son of Shri Harnam Singh Pathania, whereas in a judgment dated 27.11.2002 delivered in another civil suit No. 265 of 1997, learned Sub Judge 1st Class (Court No.1), Nurpur, District Kangra, H.P. had held that the plaintiff was not the adopted son of Shri Harnam Singh Pathania. Relying upon this judgment, it was contended by the defendants that the deed of adoption was signed only by Shri Harnam Singh Pathania and not by the plaintiff’s natural father-General Anant Singh Pathania. Therefore, adoption deed cannot prove that the plaintiff was legally adopted by late Shri Harnam Singh Pathania. It was also contended that the present suit was filed by the plaintiff asserting his ownership over the suit land in the capacity of being an adopted son of Shri Harnam Singh Pathania. Since the plaintiff has been held to be not a legally adopted son of Shri Harnam Singh Pathania vide judgment dated 27.11.2002, therefore, the entire edifice of the present civil suit goes. 2(v) The plaintiff contested this application and submitted that matter in respect of his adoption stood already adjudicated by this Court in CMPMO Nos. 2, 3 and 6 of 2007 as well as by certain other orders, referred to in the reply. It was also submitted that amendment of the plaint was allowed by the learned trial Court on 27.06.2007, whereby the word ‘adopted’ was allowed to be incorporated in the plaint. No written statement was filed to the amended plaint by the defendants, rather a statement was made that earlier written statement on record be read as written statement to the amended plaint. It was asserted that plaintiff was given in adoption by his natural father General Anant Singh to Shri Harnam Singh Pathania (real brother of General Anant Singh) and that plaintiff was absolute owner of suit property being an adopted son of late Shri Harnam Singh. Mutation No.69 dated 01.06.1990 had already been attested in this regard in plaintiff’s favour. It was also pleaded that Civil Suit No. 265 of 1997 was withdrawn with permission of appellate Court, therefore, reliance upon the judgment passed by the learned trial Court in that suit was of no use. The application moved by the defendants for rejection of the plaint at such a belated stage of the suit was nothing but a ploy to linger on the proceedings. 2(vi) After hearing the parties, learned trial Court dismissed the application under O7 R11 CPC on 28.09.2018. This order has been assailed by the defendants in the instant petition, preferred under Article 227 of the Constitution of India. 3. 2(vi) After hearing the parties, learned trial Court dismissed the application under O7 R11 CPC on 28.09.2018. This order has been assailed by the defendants in the instant petition, preferred under Article 227 of the Constitution of India. 3. Contentions 3(i) Learned Senior Counsel for the petitioners-defendants submitted that the learned trial Court committed material illegality and irregularity in dismissing the application. Plaintiff was not the legally adopted son of Shri Harnam Singh Pathania. Therefore, he could not have filed the suit as Harnam Singh’s adopted son. Dissected from Shri Harnam Singh Pathania, the plaintiff neither had any right to sue the defendants regarding the suit land nor any cause of action whatsoever. Therefore, provisions of O7 R11 (a) CPC were attracted and plaint was accordingly liable to be rejected. 3(ii) Learned Senior Counsel for the respondent contended that the application for rejection of plaint was justly dismissed by the learned trial Court. The application was moved at the stage of argument, hence was not even maintainable at that stage. No cogent explanation for delay in moving the application was offered. No specific issue in respect of adoption of the plaintiff was framed in the civil suit. Defendants neither agitated nor contested the issues framed in the suit. It was also submitted that the judgment dated 27.11.2002 heavily relied upon by defendants, holding plaintiff’s adoption as invalid, had been set aside by the learned first appellate Court on 18.06.2005. The application under O7 R11 CPC primarily based upon the judgment dated 27.11.2002, therefore, was bound to be rejected and was accordingly rejected. 4. Observations Broad aspects under which the matter needs consideration are :- (a) Merits of application moved under O7 R11 CPC (b) Maintainability of application under O7 R11 CPC viz-a-viz facts and stage of the suit. Merits of application moved under O7 R11 CPC 4(i) Primary contention of the petitioners-defendants is that the plaintiff had no cause of action. His right to sue in the plaint is on the basis of being an adopted son of Shri Harnam Singh Pathania, whereas a judgment dated 27.11.2002 delivered in Civil Suit No. 265 of 1997 has held that plaintiff was unable to prove his valid adoption by Shri Harnam Singh Pathania. Plaintiff had no separate and different title in his own name to seek the relief claimed in the plaint. Therefore, plaint was liable to be rejected. Plaintiff had no separate and different title in his own name to seek the relief claimed in the plaint. Therefore, plaint was liable to be rejected. At this stage, it will be appropriate to extract the provisions of O7 R11 CPC, whereunder plaint is liable to be rejected in following cases :- “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 returned 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-paper 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 form correcting the valuation or supplying the requisite stamp-paper , 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.” Where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the court, insufficiently stamped and not rectified within the time fixed by the Court, barred by any law, failed to enclose the required copies and the plaintiff fails to comply with the provisions of Rule 9, the Court has no other option except to reject the same. {Ref. 2012 (8) SCC 706 titled Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust}. {Ref. 2012 (8) SCC 706 titled Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust}. It is also well settled that for the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.{Ref. 2003 (1) SCC 557 titled Saleem Bhai Vs. State of Maharashtra}. The above principles were reiterated in 2017 (13) SCC 174 titled Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal. Para 7 of the judgment reads thus :- “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 7Rule 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 of 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. 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 of 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.” The above judgments alongwith various other precedents in timeline were relied upon by the apex Court in AIR 2020 SC 2721 , titled Shakti Bhog Food Industries Ltd. Vs. Central Bank of India and another. It would also be appropriate to refer to 2004 (3) SCC 137 , titled Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others, wherein it was held that application for rejection of plaint should not be considered on the basis of allegations made by the defendant in his written statement or on the basis of allegations in the application for rejection of the plaint. 4(ii) Against the backdrop of above legal position, relevant facts may be noticed. The admitted factual position is that the suit was filed by the respondent for declaration as well as possession alongwith consequential relief of injunction. Various other reliefs were also prayed. This suit was instituted by the plaintiff projecting himself as son of Shri Harnam Singh Pathania. Written statement to this civil suit was filed in the year 2004 wherein inter-alia some pleas about the adoption of the plaintiff by Harnam Singh being illegal, invalid and contrary to the provisions of the Hindu Adoption and Maintenance Act were raised. 4(iii) Amendment to the plaint was allowed by the learned trial Court on 27.06.2007 whereby the word ‘adopted’ was allowed to be incorporated in the plaint. The order amending the plaint was not challenged by the defendants. 4(iii) Amendment to the plaint was allowed by the learned trial Court on 27.06.2007 whereby the word ‘adopted’ was allowed to be incorporated in the plaint. The order amending the plaint was not challenged by the defendants. During hearing of the case, it was stated by learned counsel for the defendants-petitioners at the Bar that no separate written statement to the amended plaint was filed. Learned counsel for the plaintiff-respondent stated that no issue with respect to adoption of the plaintiff had been framed. 4(iv) Civil Suit No. 265 of 1997 was filed by the plaintiff/present respondent. The suit claimed reliefs against the State, impleaded as defendant therein. This suit was dismissed on 27.11.2002. A finding was given in the judgment that plaintiff had not been able to prove his lawful adoption by Shri Harnam Singh Pathania. On the strength of this judgment, the defendants in the instant case, moved the application under O7 R11 CPC. However, the fact remains that the judgment dated 27.11.2002 delivered in C.S. No. 265 of 1997 was assailed by the plaintiff before the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 8-N/2003. Vide order dated 18.06.2005 passed with the consent of the parties, the plaintiff was permitted to withdraw the civil suit with permission to file afresh on the same cause of action. Accordingly, the civil appeal preferred by him was also dismissed as withdrawn. Once the civil suit was dismissed as withdrawn, the judgment rendered by the learned trial Court in the suit lost its efficacy. The judgment of learned trial Court was the foundation over which, the application under O7 R11 CPC was moved by the defendants. Thus, no benefit, as was being sought to be gained from the judgment, could actually be derived by the defendants in their application moved under O7 R11 CPC. 4(v) It is also significant to note that for rejecting the plaint, the defendants had put forward their contention in the application moved under O7 R11 CPC/written statement about illegality in plaintiff’s adoption. Their allegation is that plaintiff was not legally adopted son of late Shri Harnam Singh Pathania, therefore, plaint filed by him in that capacity had to be rejected. However, for considering the application under O7 R11 CPC, it is only the plaint alone, which it is to be looked into and not the written statement or the contentions raised in the application. However, for considering the application under O7 R11 CPC, it is only the plaint alone, which it is to be looked into and not the written statement or the contentions raised in the application. Whether the plaintiff has cause of action and right to seek the reliefs claimed in the plaint has to be established by him by resorting to the pleadings, proofs and evidence adduced during trial. It is settled legal position that cause of action is a bundle of material facts which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit. In the facts of the case, solely on the basis of judgment dated 27.11.2002, rendered in C.S. No. 263 of 1997 (which has been permitted to be withdrawn by the first appellate Court vide order dated 18.06.2005), it cannot be said, at this stage, that plaintiff has no cause of action or right to sue with respect to the suit land viz-a-viz the reliefs prayed for in his capacity as an adopted son of Shri Harnam Singh Pathania. Fully aware of the factual position, the issues were framed, the parties led evidence and ventured into the trial. Learned trial Court is yet to hear the arguments. The application does not come within the purview of situations contemplated under O7 R11 CPC. Stage at which application under O7 R11 CPC was moved and its effect: 4(vi) There is no dispute to the well settled principle that the powers under O7 R11 CPC can be exercised at any stage of the suit before registering the plaint or after issuing summons to the defendants at any time before conclusion of the trial {Refer 2003 (1) SCC 557 , titled Saleem Bhai and others Vs. State of Maharashtra ; 2004 (3) SCC 137 , titled Sopan Sukhdeo Sable Vs. Assistant Charity Commissioner}. It would also be appropriate to refer to a recent judgment of Hon’ble Supreme Court in this regard, reported in AIR 2020 SC 2721 , titled Shakti Bhog Food Industries Ltd. Vs. Central Bank of India and another, wherein various precedents in the timeline explaining O7 R11 CPC were considered reiterating that in order to consider O7 R11 CPC, the Court has to look into the averments in the plaint and the same can be exercised by the trial Court at any stage of the suit. Central Bank of India and another, wherein various precedents in the timeline explaining O7 R11 CPC were considered reiterating that in order to consider O7 R11 CPC, the Court has to look into the averments in the plaint and the same can be exercised by the trial Court at any stage of the suit. The averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into for deciding such an application are the averments in the plaint. Paras 5 and 6 from 2016 (14) SCC 275 , titled R.K. Roja Vs. U.S. Rayudu and another, are also relevant in respect of stage of filing application under O7 R11 CPC which read as under :- “5. Once an application is filed under Order VII Rule 11 of the CPC, the court has to dispose of the same before proceeding with the trial. There is no point or sense in proceeding with the trial of the case, in case the plaint (Election Petition in the present case) is only to be rejected at the threshold. Therefore, the defendant is entitled to file the application for rejection before filing his written statement. In case, the application is rejected, the defendant is entitled to file his written statement thereafter (See Saleem Bhai and others v. State of Maharashtra and others). But once an application for rejection is filed, the court has to dispose of the same before proceeding with the trial court. To quote relevant portion from paragraph-20 of Sopan Sukhdeo Sable case (supra): “20. … Rule 11 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word “shall” is used, clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant.…” 6. Instead, the word “shall” is used, clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant.…” 6. In Saleem Bhai case (supra), this Court has also held that … “A direction to file the written statement without deciding the application under Order VII Rule 11 cannot but be a procedural irregularity touching the exercise of jurisdiction of the trial court.” However, we may hasten to add that the liberty to file an application for rejection under Order VII Rule 11 of the CPC cannot be made as a ruse for retrieving the lost opportunity to file the written statement..” 4(vii) Learned Senior Counsel for the petitioners submitted that the application for rejection of plaint could be moved at any stage before conclusion of the trial. In the instant case, the suit was fixed for arguments when application under O7 R11 CPC was moved. The application was, therefore, maintainable at that stage. Trial of the suit comes to an end only with delivering of judgment or when the suit is posted for judgment where it is reserved. Reliance in this regard was placed upon following paras of AIR 1966 AP 295 , titled Sultan Saleh Bin Omer Vs. Vijaya- chand Sirimal :- “17. A combined reading of all these provisions makes it abundantly clear that the Code has not provided for hearing of arguments as a distinct stage in the trial of the suit. On the other, hand, according to Order 15, Rule 3, the hearing of the suit includes both production of evidence, as well as argument. It is in the option of the parties to argue their case after the evidence in the suit is closed, and it is for them to decide whether they will exercise their privilege or not. In other words, once the trial of the suit is taken up and the examination of the witnesses has commenced, the hearing of the suit is said to begin; and that hearing comes to an end only with the delivery of the judgment, or when the suit is posted for judgment where it is reserved. In other words, once the trial of the suit is taken up and the examination of the witnesses has commenced, the hearing of the suit is said to begin; and that hearing comes to an end only with the delivery of the judgment, or when the suit is posted for judgment where it is reserved. In eases, therefore, where the suit has not been posted for judgment, but is posted for hearing arguments of one side or the other, it should be remembered that the hearing of the suit is not concluded, though the recording of evidence might have been finalised by both the parties. In such cases, either party is not precluded from making a request for examination of additional witnesses, or making documents, merely on the ground that the trial is closed and the matter is posted for arguments, whether the request should be granted or not, is however a matter to be decided on its merits, bearing in mind the fact that it is belated. 19. I, therefore, hold that from the commencement of the recording of evidence till the suit if posted for judgment, if it is not delivered soon after the hearing constitutes 'hearing of the suit', though in the course of the hearing judge may note the purpose for which the suit is adjourned to a particular date, viz., for examining witness on behalf of the plaintiff or the defendant, or for hearing argument on a particular aspect of the case, or arguments at the conclusion of the evidence. In this view, I cannot accept the contention of Sri Suryaprakasam that the trial Court had acted illegally in exercising its jurisdiction in re-opening the suit already closed, for, there was no need for any re-opening, when the hearing is not concluded.” 4(vii) The remedy under O7 R11 CPC is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision. {Ref. 2020 (7) SCC 366 , titled Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra)}. In the instant case, application under O7 R11 CPC was not moved by the defendants at the first available opportunity. {Ref. 2020 (7) SCC 366 , titled Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra)}. In the instant case, application under O7 R11 CPC was not moved by the defendants at the first available opportunity. The defendants had vaguely taken a stand with respect to the adoption of plaintiff being illegal in their written statement filed in the year 2004. The plaintiff was allowed to amend the plaint by the learned trial Court on 27.06.2007 by incorporating the word ‘adopted’ son of Shri Harnam Singh Pathania. The order dated 27.06.2007 was accepted by the defendants. No separate written statement to the amended plaint was filed. Issues were framed. The parties being fully aware of their respective cases, the pleadings and the points involved therein led evidence. On 12.09.2018, when the case was fixed for arguments, the defendants moved the application under O7 R11 CPC. This application was moved after a gap of 14 years from the date of filing of the plaint and 11 years after the amendment of the plaint. Written statement to the original plaint stood filed 11 years ago in the year 2004. It is not that alleged illegality in the adoption of the plaintiff came to the notice of defendants for the first time in September, 2018. Some averments in this regard were already made in the written statement filed in the year 2004. There is not a whisper in the application about the reasons for delay in moving such an application. No doubt, the application under O7 R11 CPC can be moved at any stage before conclusion of the trial, however, in the facts and circumstances of the case, moving of such application for rejection of the plaint at the fag end of the trial was nothing but a ploy to drag the proceedings. 5. The sum total of above discussion is that neither the grounds raised in the application fall within the purview of any of the situations covered under O7 R11 CPC nor the application in the facts of the case was filed within a reasonable time in accordance with the provisions. Therefore, the learned trial Court committed no error in dismissing the application under Order 7 Rule 11 of the Code of Civil Procedure moved by the defendants 11 years after filing of written statement and at the stage of hearing of arguments. Therefore, the learned trial Court committed no error in dismissing the application under Order 7 Rule 11 of the Code of Civil Procedure moved by the defendants 11 years after filing of written statement and at the stage of hearing of arguments. Finding no merit in the instant petition, the same is accordingly dismissed. Parties, through their learned counsels, are directed to appear before the learned trial Court on 12.05.2021. It is clarified that the observations made above are only for adjudicating the instant petition and will have no bearing on the merits of the matter. The petition stands disposed of in the aforesaid terms, so also the pending applications, if any.