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2021 DIGILAW 454 (HP)

Amar Singh & Ors. v. Vishal Kumar

2021-07-24

SANDEEP SHARMA

body2021
JUDGMENT Sandeep Sharma, J. - Instant Civil Revision Petition under Section 115 of the Code of Civil Procedure has been filed against the order dated 3.9.2019 passed by learned Senior Civil Judge, Nadaun, District Hamirpur, Himachal Pradesh in CMA No.50 of 2017 in Civil Suit No.301 of 2016, whereby application under Order 7 Rule 11(A) read with Section 151 CPC, having been filed by the petitionersdefendants (hereinafter referred to as the defendants), praying therein for rejection of the plaint, having been filed by the respondent-plaintiff (hereinafter referred to as the plaintiff), came to be dismissed. 2. Since despite service, respondent-plaintiff failed to put in appearance either in person or through counsel, therefore, he was ordered to be proceeded against ex-parte on 25.8.2020. 3. For having bird's eye view, certain undisputed facts as emerge from the record are that the plaintiff filed a Civil Suit for permanent prohibitory injunction restraining the defendants, their family members, agents and servants from raising any kind of construction, cutting trees and changing nature of land compromised in Khata No.23min, Khatauni No.33-37, Khasra No.97098, Kita 2, area measuring 00-4-20 hectares as per jamabandi for the year 2010-2011, situate at Mahal Ambi, Mauza Bhumpal, Tehsil Nadaun, District Hamirpur, Himachal Pradesh till the partition of the land as per law. Besides above, plaintiff also prayed that in case the defendants succeed in raising any sort of construction over the suit land during the pendency of the suit then decree for joint possession by way of demolition by mandatory injunction directing the defendants to restore the suit land to its original position may also be passed. 4. Record reveals that alongwith aforesaid civil suit plaintiff had filed an application for stay bearing CMA No.285 of 2016 (Annexure P-2). Initially, learned court below directed the parties to maintain status quo qua nature, character, construction, cutting of valuable trees and possession over the suit land vide order dated 30.11.2016, however, subsequently aforesaid application came to be dismissed vide detailed order dated 5.9.2019. 5. Aforesaid claim of the plaintiff as set up in the suit came to be resisted by the defendants by filing written statement, wherein they specifically took a stand that entire suit land stand sold to them by predecessor-in-interest of plaintiff and as such, plaintiff being totally stranger to the suit land has no right, whatsoever to file the suit against them claiming therein joint possession. Before suit having been filed by the plaintiff could be taken to its logical ends, defendants filed an application under Order 7 Rule 11 CPC, praying therein for rejection of plaint (Annexure P-5), averring therein that since suit land already stands sold in favour of the defendants by predecessor-in-interest of the plaintiff, plaintiff has no cause of action to file the suit. Defendants specifically averred in the aforesaid application that the grandfather of the plaintiff namely Sh. Suhru Ram had sold out his entire share to defendant No.1 and his brother in the year 2001. Defendants also claimed in the aforesaid application that defendants No.2 to 4 are sons of defendant No.1 and have constructed their houses and shops over the suit land. While seeking rejection of the plaint, defendants claimed in the application that the plaintiff had filed suit on the basis of wrong revenue record in connivance with the revenue staff. Since suit of the plaintiff is based upon true revenue record, wherein admittedly defendants have been shown to be owner of the suit property, prayer made in the application for rejection of the plaint deserves to be accepted. 6. Aforesaid application having been filed by the defendants came to be contested by the plaintiff, who in reply to the application claimed that he inherited the estate of his grandfather Sh. Suhru Ram through Will and he is the owner in possession of the suit land alongwith other property and land at Tika Ambi, Mauza Bhumpal. Plaintiff also claimed that he and his family members have their houses over the suit land and at no point of time any sale deed came to be executed by his grandfather in favour of defendant No.1 and his brother. Plaintiff claimed that if there is any sale deed, the same is result of fraud and misrepresentation and cannot be taken into consideration. Besides above, plaintiff claimed that the ancestral house is still in his possession and his family members and house of defendant No.1 is not over the suit land, rather house of the defendants is over another Khasra numbers. 7. Learned court below on the basis of the pleadings adduced on record in the application filed under Order 7 Rule 11 CPC, framed the following issues:- "1. Whether the plaintiff has cause of action to file the present suit, as prayed for ?OPP." 8. 7. Learned court below on the basis of the pleadings adduced on record in the application filed under Order 7 Rule 11 CPC, framed the following issues:- "1. Whether the plaintiff has cause of action to file the present suit, as prayed for ?OPP." 8. Defendants with a view to prove their case examined two witnesses and placed on record sale deed Ex.AW2/A. On the other hand, plaintiff with a view to rebut the defendant's evidence examined one witness and placed on record copy of GPA as well as jamabandi Ex.RW1/B. 9. Learned trial Court on the basis of the pleadings adduced on record though came to the conclusion that documentary evidence adduced on record clearly reveals that the plaintiff is not owner in possession of the suit land and has no interest in the suit land to file the suit, but yet proceeded to reject the application filed by the defendants on the ground that while deciding the application under Order 7 Rule 11 CPC, he is only to take into consideration the averments contained in the plaint. Learned court below categorically recorded in the order impugned in the instant proceedings that averments contained in the written statement as well as reply to the instant application and documents placed on record by the defendants cannot be looked into at the time of deciding the application under order 7 Rule 11 CPC. Learned Court below also placed reliance upon the judgment passed by Hon'ble Apex Court in Kuldeep Singh Pathania vs. Bikram Singh Jaryal, (2017) 2 CivCC 219 (S.C), wherein Hon'ble Apex Court had held that Court is to take decision looking at the pleadings of the plaintiff only and not on the rebuttal made by the defendants or any other material produced by the defendants while deciding the application under order 7 Rule 11(a) CPC. In the aforesaid background, defendants have approached this Court in the instant petition, praying therein to quash and set-aside the impugned order dated 3.9.2019. 10. I have heard learned counsel representing the parties and gone through the record carefully. 11. In the aforesaid background, defendants have approached this Court in the instant petition, praying therein to quash and set-aside the impugned order dated 3.9.2019. 10. I have heard learned counsel representing the parties and gone through the record carefully. 11. Precisely, the challenge has been laid to aforesaid impugned order on the ground that once court below on the basis of pleadings adduced on record by the respective parties had arrived at definite conclusion that plaintiff has no interest in the suit land to file the suit for permanent prohibitory injunction against the defendants, there was no occasion for the learned court below to reject the application filed under Order 7 Rule 11(a) CPC. 12. Mr. Vivek Negi, learned counsel representing the petitioners-defendants while referring to Ex. RW1B i.e. copy of jamabandi placed on record by the plaintiff while contesting the application under order 7 Rule 11(a) CPC, contended that once plaintiff himself placed on record copy of jamabandi, perusal whereof clearly reveals that predecessor-in-interest of the plaintiff Sh. Suhru Ram had given his 1/16 share in exchange to Thenu Ram and in this regard, mutation No.4 stood attested, Court below had no option but to accept the prayer made in the application under Order 7 Rule 11(a) CPC. While referring to the findings recorded by court below in para-9 of the impugned order, Mr. Negi, contended that it stands duly recorded in the impugned order that there is a entry in the jamabandi regarding sale deed, by which Suhru Ram sold out his entire share i.e.0.06.90 hectares to defendant and his brother Brahmu in the year, 2001. Mr. Negi, further argued that once court below on the basis of aforesaid jamabandi had clearly concluded in the order impugned in the instant proceedings that revenue authorities passed order of Fard Badar on 22.12.2016 and cleared the position that Suhru Ram ceased to be owner of the suit land by virtue of aforesaid exchange and sale deeds, it ought to have rejected the plaint of the plaintiff for non -disclosure of any cause of action. 13. 13. Having carefully perused the material available on record vis- -vis reasoning assigned by the court below while passing the impugned order, this court finds that the plaintiff claiming himself to be the joint owner in possession of the suit land filed suit for permanent prohibitory injunction restraining the defendants from raising any kind of construction, cutting trees and changing nature of suit land till the partition of the land as per law, but defendants by way of written statement categorically stated before the Court below that since suit land already stands sold to the defendants by predecessor-in-interest of the plaintiff and mutation of land in question stands attested/ sanctioned in favour of the defendants, there is no cause of action, if any, in favour of the plaintiff to file suit. 14. True, it is that court while considering application under order 7 Rule 11(a)CPC is only required to see pleadings adduced on record by way of plaint by the plaintiff and definitely pleadings adduced on record by way of written statement cannot be looked into by the court while ascertaining the merit of the application, if any, filed under order 7 Rule 11(a)CPC, but court below while taking note of averments contained in the plaint is also under obligation to look into the documents filed by the plaintiff alongwith the plaint, as has been held by Hon'ble Apex Court in the recent judgment passed in case titled Dahiben vs. Arvindbhai Kalyanji Bhanusali(Gajra) dead through legal representatives and others, (2020) 7 SCC 366 . In the aforesaid judgment Hon' ble Apex Court has categorically held that documents filed alongwith the plaint, are required to be taken into consideration for deciding the application under Order 7 Rule 11(a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint. Relevant paras of aforesaid judgment are reproduced herein below:- "23.1 We will first briefly touch upon the law applicable for deciding an application under Order VII Rule 11 CPC, which reads as under: "11. When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint. Relevant paras of aforesaid judgment are reproduced herein below:- "23.1 We will first briefly touch upon the law applicable for deciding an application under Order VII Rule 11 CPC, which reads as under: "11. b The plaint shall be rejected in the following cases: (a) where it does not disclose a cause of action; (b) where the relief claimed in 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 stamppaper 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 prevent by any cause of exceptional nature for correction 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." (emphasis supplied) 23.2. The remedy under Order VII Rule 11 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. 23.3. The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. 23.3. The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted. 23.4. In Azhar Hussain v. Rajiv Gandhi, (1986) Supp1 SCC 315, this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words :( SCC P.324, para 12). "12. ...The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action." 23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to. 23.6 Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint2, read in conjunction with the documents relied upon, or whether the suit is barred by any law. 23.7. Order VII Rule 14(1) provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under : "14. Production of document on which plaintiff sues or relies. (1)Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2)Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. (3)A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (4)Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory." (emphasis supplied) 23.8. Having regard to Order VII Rule 14 CPC, the documents filed alongwith the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint. 23.9. In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out. 23.10. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration. 23 11. The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V.Sea Success I & Anr.,4 which reads as:( SCC P.562, para 139). "139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed." 23.12. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed." 23.12. In Hardesh Ores (P.) Ltd. v. Hede & Co.5 the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran vs. R.V.Janakiraman, (1999) 3 SCC 267 . 23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC. 23.14. The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra., (2003) 1 SCC 557 . The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain Vs. Rajiv Gandhi, (1986) Supp1 SCC 315. 23.15. The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint. 24. "Cause of action" means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of 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. 24. "Cause of action" means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of 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. 24.1 In Swamy Atmanand v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51 this Court held: ( SCC p.60,para 24) "24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an 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" (emphasis supplied) 24.2. In T. Arivandandam v. T.V. Satyapal & Anr, (1977) 4 SCC 467 , this Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words : (SCC p.470, para 5). "5. ...The learned Munsiff 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, he should exercise his power under O. VII, R. 11, 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 ..." (emphasis supplied). 24.3. Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal,10 this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint. 24.4. 24.3. Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal,10 this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint. 24.4. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal11 held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage.The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court. 15. No doubt, prior to aforesaid exposition of law in the aforesaid case, Hon'ble Apex Court in its earlier judgment passed in Kuldeep Singh Pathania vs. Bikram Singh Jaryal,2017 2 CivCC 2019 (S.C.), which has been taken into consideration by the court below while rejecting the application under Order 7 Rule 11(a) CPC had held that court while considering the application under Order 7 Rule 11(a) is only under obligation to take into consideration pleadings of plaintiff only and not the rebuttal made by the defendants. However, in the subsequent judgment, as has been reproduced hereinabove, Hon'ble Apex Court has clarified that documents annexed with the plaint are required to be taken into consideration by the court while considering/deciding the application under Order 7 Rule 11(a) CPC. Interestingly, in the case at hand court below though on the basis of the pleadings adduced on record by the plaintiff arrived at a definite conclusion that it is clear from the documentary evidence adduced on record that the plaintiff is no more owner in possession of the suit land and he has no interest in the suit to file suit for permanent prohibitory injunction against the defendants, but yet proceeded to dismiss the application having been filed by the defendants under order 7 Rule 11(a)CPC on the ground that it is not required to take into consideration the defence set up by the defendant in his written statement for rejection of plaint under order 7 Rule 11 CPC. The question whether plaint discloses any cause of action, is to be decided by looking at the averments contained in the plaint itself and not the defence set up in the written statement. The question whether plaint discloses any cause of action, is to be decided by looking at the averments contained in the plaint itself and not the defence set up in the written statement. Though, this Court finds no quarrel with the aforesaid preposition of law as taken into consideration by the court below while deciding the application under Order 7 Rule 11 CPC having been filed by the defendants, but since documents filed with the plaint, forms part of the plaint, Court considering the prayer for rejection of plaint is under obligation to go through the same before giving decision on the application filed under Order 7 Rule 11 CPC. In the case at hand, plaintiff with a view to rebut the claim of the defendants/applicants placed on record the copy of jamabandi Ex.RW1/B for the year 2010-11, perusal whereof clearly reveals that the predecessor-in-interest of plaintiff Sh. Suhru Ram had given 1/16 share in exchange to Thenu Ram and in this regard, mutation No.4 also stands attested. Similarly, there is entry in the jamabandi regarding sale deed, by which Suhru Ram i.e. predecessor-in-interest of plaintiff sold out his entire share i.e. 0.06.90 hectares to defendant and his brother in the year, 2001. 16. Leaving everything aside, revenue authorities while passing order of Fard Badar on 22.12.2016 has clarified the position that Sh. Suhru Ram, predecessor-in-interest of the plaintiff ceased to be owner of the suit land by virtue of aforesaid exchange and sale deeds. Since aforesaid documents were placed on record by the plaintiff himself, court below ought to have read the same in conjunction with the averments contained in the plaint. Had court below bothered to read aforesaid documents alongwith the averments contained in the plaint, probably application having been filed by the defendant would have been accepted. In this regard, reliance is placed upon the judgment rendered by Hon'ble Apex Court in Swamy Atmananda vs. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51 , wherein it has been categorically held that cause of action is 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 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. If all the material facts as evolved by the plaintiff in the plaint are taken into consideration in the light of the documents adduced on record by the plaintiff himself, it cannot be said that he has cause of action, if any, to file suit against the defendants. Plaintiff himself while refuting the claim of the defendants placed on record copy of jamabandi Ex.RW1/B, which itself suggests that plaintiff is not owner in possession of the suit land, rather suit land stands sold to the defendants by predecessorin-interest of plaintiff in the year, 2001. 17. Having carefully perused the averments contained in the plaint as well as documents annexed therewith, details whereof finds mention in the impugned order itself, especially para-9 of the order, this Court has no hesitation to conclude that court below has failed to appreciate the law in its right perspective, as a result of which, findings to the detriment of the defendants have come on record. 18. Consequently, in view of the above, the present petition is allowed and impugned order dated 3.09.2019 passed by learned Court below is quashed and set-aside and application under Order 7 Rule 11 CPC having been filed by the defendant is accepted and suit filed by the plaintiff for permanent prohibitory injunction is rejected for non-disclosure of any cause of action 19. The instant petition stands disposed of in the aforesaid terms alongwith pending applications, if any.