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2024 DIGILAW 210 (CHH)

Salma Begum v. Jubeda Khatun

2024-03-05

DEEPAK KUMAR TIWARI

body2024
ORDER : Deepak Kumar Tiwari, J. Heard on admission. 2. This Civil Revision has been filed against the order dated 16.02.2023 passed in Case No.6v/2022 by the First Upper District Judge, Ambikapur, District Surguja (C.G) whereby, the application preferred by the applicant/defendant under Order 7 Rule 11(d) of the CPC has been dismissed. 3. Brief facts of the case are that the respondent No.1/plaintiff has filed a civil suit for the specific performance of agreement to sale dated 15.07.2019 and the suit was filed on 01.07.2022. In the said suit, the applicant/defendants have moved an application under Order 7 Rule 11(d) of the CPC, raising the objection that defendant No.1 along with Kausar Jahan and Aftab Alam had already entered into registered agreement and the same was in existence. Subsequently in a fraudulent manner, on 15.07.2019, an agreement was executed and the present suit was filed which was barred by law. 4. Learned trial Court considering the averments made in the application under Order 7 Rule 11 of the CPC has observed that the issue involved in the case is a matter of evidence and the fact whether any fraud has been committed or not can be determined only after recording the evidence and dismissed the application. Hence, this Revision. 5. Learned counsel for the applicants would submit that during existence of the earlier agreement, the subsequent agreement is void and it is also obtained through deception and fraud and the learned trial Court has not considered this aspect and prays to allow the revision and reject the plaint which was barred by law. 6. Heard learned counsel for the applicants and perused the documents annexed with the revision carefully. 7. It is well settled that for determining whether the plaint discloses any cause of action or not, the Court has to see only the averments in the plaint and the accompanying document relied upon in the plaint and the fact elicited from the plaintiff by examining him under Order 10. The Court has to presume the fact stated in the plaint as correct. The Court cannot look into the defence set up by the defendant in their written statement or the application while deciding the application under Order 7 Rule 11 of the Code of Civil Procedure, 1908. 8. Further, in the matter of Kuldeep Singh Pathania Vs. The Court has to presume the fact stated in the plaint as correct. The Court cannot look into the defence set up by the defendant in their written statement or the application while deciding the application under Order 7 Rule 11 of the Code of Civil Procedure, 1908. 8. Further, in the matter of Kuldeep Singh Pathania Vs. Bikram Singh Jaryal, 2017 (5) SCC 345 , the following observations was made in para No.9 to 12:- "9. Thus, for an enquiry under Order 7 Rule 11(a), only the pleadings of the plaintiff-petitioner can be looked into even if it is at the stage of trial of preliminary issues under Order 14 Rule 2(2). But the entire pleadings on both sides can be looked into under Order 14 Rule 2(2) to see whether the court has jurisdiction and whether there is a bar for entertaining the suit. 10. In the present case, the issue relates to an enquiry under Order 7 Rule 11(a) of the Code, and hence, there is no question of a preliminary issue being tried under Order 14 Rule 2(2) of the Code. The court exercised its jurisdiction only under Section 83(1)(a) of the Act read with Order 7 Rule 11(a) of the Code. Since the scope of the enquiry at that stage has to be limited only to the pleadings of the plaintiff, neither the written statement nor the averments, if any, filed by the opposite party for rejection under Order 7 Rule 11(a) of the Code or any other pleadings of the respondents can be considered for that purpose. 11. In Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, 2006 (3) SCC 100 , this Court has dealt with a similar issue. To the extent relevant, para 12 reads as follows: (SCC p.115) "12. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint." 12. It is not necessary to load this judgment with other judgments dealing with this first principle of Order 7 Rule 11(a) of the Code. As held by this Court in Virender Nath Gautam v. Satpal Singh, 2007 (3) SCC 617 , at para 52: (SCC p.632) "52.The High Court, in our considered opinion, stepped into prohibited area of considering correctness of allegations and evidence in support of averments by entering into the merits of the case which would be permissible only at the stage of trial of the election petition and not at the stage of consideration whether the election petition was maintainable and dismissed the petition. The said action, therefore, cannot be upheld and the order deserves to be set aside." 9. In the matter of Dahiben Vs. The said action, therefore, cannot be upheld and the order deserves to be set aside." 9. In the matter of Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) Dead through Lrs & Ors., 2020 (7) SCC 366 it has been analysed as to in which cases, enquiry can be made by the Court in connection with Order 7 Rule 11 of the CPC and the relevant portion of the said judgment read thus:- "23.11 The test for exercising the power under Order 7 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 2004 (9) SCC 512 which reads as: "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 In Hardesh Ores (P.) Ltd. v. Hede & Co. (2007) 5 SCC 614 , 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 v. 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 7 Rule 11 CPC. D. Ramachandran v. 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 7 Rule 11 CPC. 23.14 The power under Order 7 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 case [Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315. 23.15 The provision of Order 7 Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clauses (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. 24.1. In Swamy Atmanand v. Sri Ramakrishna Tapovanam 2005 (10) SCC 51 this Court held: "24. A cause of action, thus, 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. 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 1977 (4) SCC 467 this Court held that while considering an application under Order 7 Rule 11 what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words: "5. ....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, he should exercise his power under Order 7 Rule 11 CPC 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 ITC Ltd. v. Debts Recovery Appellate Tribunal 1998 (2) SCC 70 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 Rama Chandra Murthy v. Syed Jalal 2017 (13) SCC 174 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." 10. 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." 10. In view of the aforesaid settled proposition of law and considering the averments made in the plaint, this Court finds that the present suit is filed for the specific performance of the agreement to sale and at this juncture only plaint averments can be seen, therefore, the observation made by the learned trial Court that whether any fraud has been committed or not, that has to be determined only after recording of the evidence, therefore, rejecting the application under Order 7 Rule 11 of the CPC is just and proper. There appears no material irregularity or infirmity in the impugned order invoking any interference by this Court in its revisional jurisdiction. 11. Accordingly, the Revision fails and is hereby dismissed at the motion stage itself.