Laxmiben vs The on 17 September, 2010

Gujarat High Court
Laxmiben vs The on 17 September, 2010
Author: H.B.Antani,&Nbsp;
   Gujarat High Court Case Information System 

  
  
    

 
 
    	      
         
	    
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CRA/36/2009	 55	JUDGMENT 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CIVIL
REVISION APPLICATION No. 36 of 2009
 

 
 
For
Approval and Signature:  
 
HONOURABLE
MR.JUSTICE H.B.ANTANI
 
 
=========================================================

 
	  
	 
	  
		 
			 

1
		
		 
			 

Whether
			Reporters of Local Papers may be allowed to see the judgment ?
		
	

 
	  
	 
	  
		 
			 

2
		
		 
			 

To be
			referred to the Reporter or not ?
		
	

 
	  
	 
	  
		 
			 

3
		
		 
			 

Whether
			their Lordships wish to see the fair copy of the judgment ?
		
	

 
	  
	 
	  
		 
			 

4
		
		 
			 

Whether
			this case involves a substantial question of law as to the
			interpretation of the constitution of India, 1950 or any order
			made thereunder ?
		
	

 
	  
	 
	  
		 
			 

5
		
		 
			 

Whether
			it is to be circulated to the civil judge ?
		
	

 

 
=========================================================

 

LAXMIBEN
WD/O RAMUBHAI MAGANBHAI & 4 - Applicant(s)
 

Versus
 

VASUDEVBHAI
GANDABHAI PATEL & 3 - Opponent(s)
 

=========================================================
 
Appearance
: 
MR
MIHIR THAKORE and MR PC KAVINA, SR. ADVOCATES with MR AB MUNSHI
for
Applicant(s) : 1 - 5. 
MR AMIT V THAKKAR for Opponent(s) : 1 -
4. 
=========================================================


 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE H.B.ANTANI
		
	

 

 
 


 

Date
: 17/09/2010 

 

 
 
ORAL
JUDGMENT

1. The
applicants who are the original defendants have preferred the present
Revision Application under Section 115 of the Code of Civil
Procedure, 1908 (hereinafter referred to as the Code ) against
the opponents original plaintiffs challenging the order dated
2.2.2009 passed by the learned 7th Additional Senior Civil
Judge, Surat by which the learned Judge partly allowed the
application at Exh.47 filed by the applicants in Regular Civil Suit
No. 397 of 2007 so far as the relief prayed for by the applicants
under Order 7 Rule 11(b) and (c) of the Code is concerned, but
rejected the said application so far as the remaining reliefs prayed
for in the said application is concerned.

2. The
facts of the case are as under:-

The
opponents have filed Regular Civil Suit No. 397 of 2007 in the Court
of learned Principal Senior Civil Judge, Surat for a declaration that
the opponents herein have 1/2 share in the property being
agricultural land bearing block Nos. 4, 74, 76 and 226 of Village
Pal, Taluka District Surat and that the applicants herein have no
right to transfer the said land in any manner whatsoever or to hand
over possession thereof to a third party and for separate possession
of 1/2 share in the suit property by partitioning the suit property
by metes and bounds and for accounts of the income derived by the
applicants from the suit land during last three years and for
permanent injunction restraining the applicants from in any manner
dealing with the suit property and from transferring the possession
of the suit land in favour of a third party or from in any manner
changing the nature and identity of the suit land and from putting up
any construction etc. The suit was filed on 22.8.2007. The opponents
also filed an application vide Exh.5 for interim injunction. The
applicants resisted the claim of the opponents made in the suit as
well as the application Exh.5 for interim relief by filing the
written submissions vide Exh.18 on 17.10.2007. In their written
statement, the applicant raised a preliminary objection against
maintainability of the suit itself and contended that a preliminary
issue is required to be raised and the suit be decided on the
preliminary issue. The applicants also filed the application at
Exh.35 under Order 14 Rule 2 read with Order 7 Rule 11 of the Code
and requested the learned Trial Judge to frame and decide two issues
as set out in the said application before application Exh.5 was
decided. The opponents filed their reply at Exh.37 resisting the
application at Exh.35. Thereafter, the applicants filed the
application at Exh.47 under Order 7 Rule 11(a), (b) and (d) of the
Code requesting the learned Trial Judge to reject the plaint as the
same did not disclose any cause of action as per Hindu law as
operative before 1956 and law of limitation even as per the averments
made in the plaint itself. The said application was filed on
15.3.2008. The opponents filed their reply vide Exh.49 on 28.3.2008
and contested the application at Exh.47 on various grounds. It is
submitted that the learned 11th Additional Senior Civil
Judge, Surat proceeded to decide the application Exh.35 without
disposing of the application Exh.38 filed by the opponents and Exh.47
filed by the applicants. The learned Judge by his order dated
15.3.2008 rejected the application Exh.35 filed by the applicants.
The applicants thereafter filed Review Application No.33 of 2008
under Section 114 read with Order 47 Rule 1 of the Code for review of
the order dated 15.3.2008 passed by the learned Trial Judge below
application Exh.35. The opponents filed the reply vide Exh.18
contesting the Review Application and ultimately, the learned Judge
by his judgment and order dated 22.7.2008 rejected the said Review
Application. Being aggrieved by and dissatisfied with the order
passed by the learned Trial Judge in the Review Application, the
applicants approached this Court by filing Special Civil Application
No. 10284 of 2008, wherein they have produced all the applications
and the orders passed below the applications along with memo of the
petition. After hearing both the parties at length in the said
petition, the Court was pleased to dispose of the said petition
subject to the following observations made in Para 3 of the order
dated 12.8.2008 which is as under :-

3. Considering the
above, present Special Civil Application is disposed of without
further considering the impugned order on merits by observing that,
as and when application Exh.47 submitted by the petitioners-original
defendants under Order 7 Rule 11 of CPC is taken up for hearing, the
same shall be decided and disposed of by the learned trial court
independently in accordance with law and on merits and in any way
without being influenced by any of the observations made by the trial
court while passing the impugned order under Exh.35.

It is submitted that the
applicants thereafter submitted written submissions at Exh.76 in
support of the application at Exh.47 on 9.9.2008. Thereafter, the
opponents also filed the written arguments vide Exh.80 in support of
their claim in their written reply at Exh.49 on 15.12.2008.
Thereafter, the learned Trial Judge by his order dated 2.2.2009
partly allowed the application Exh.47 and directed the opponents
herein to amend the valuation of suit and pay the deficit amount of
Court fees within 15 days. However, the learned Judge rejected the
application Exh.47 so far as the relief of rejecting the plaint is
concerned. The applicants being aggrieved by the aforesaid order has
preferred the present Revision Application.

3. Mr Mihir Thakore and Mr
PC Kavina, learned Senior Advocates for the applicants submit that
the learned Trial Judge has committed gross error in exercising the
jurisdiction not vested in him while not considering the relief to
reject the plaint under Order 7 Rule 11(a) and (d) of the Code. It is
submitted that the learned Judge committed an error in not
appreciating the provisions of Order 7 Rule 11(a) and (d) of the Code
in proper perspective. Order 7 Rule 11(a) and (d) is with regard to
rejection of plaint. It is stated therein that the plaint shall be
rejected in the cases where it does not disclose a cause of action
and where the suit appears from the statement in the plaint to be
barred by any law. The learned Trial Judge committed an error in not
appreciating that as per the averments made in the plaint, the common
ancestor of the parties to the suit had expired on 12.3.1955 and on
his death, the properties of the deceased Maganbhai were inherited by
his son Ramubhai to the exclusion of his sister Shantiben. The
plaintiffs are the descendants of Shantiben who inherited no property
since the succession which opened on the death of Maganbhai resulted
in his son Ramubhai taking the entire property by way of intestate
succession as per the customary Hindu law. The learned Judge also did
not appreciate that the wife of Maganbhai Bhagubhai had predeceased
him and his daughter Shantiben had no right of inheritance in Hindu
law as it stood at the relevant time i.e. prior to the enactment of
Hindu Succession Act, 1956. It is submitted that the claim of the
opponents is based on the averments made in the plaint that
Shantiben, daughter of Maganbhai was entitled to a share in the
properties left by the deceased Maganbhai on his death on 12.3.1955,
though under the Hindu law then in force, she was not entitled to a
share in the said properties. The learned Trial Judge, therefore,
committed an error in not appreciating that from the averments made
in the plaint itself, the plaint does not disclose the cause of
action. The learned Judge has also not appreciated that admittedly
the opponents plaintiffs claim share in the suit properties
through Shantiben, daughter of the deceased Maganbhai on the ground
that they are the heirs of the deceased Shantiben. It is submitted
that as demonstrated, Shantiben herself has no right under the Hindu
law at the relevant time to inherit the properties of deceased
Maganbhai and therefore, the question of claiming any right to
inherit the properties left by the deceased Maganbhai by the heirs of
the deceased Shantiben did not arise at all. It is also submitted
that the learned Trial Court has committed an error in not
appreciating that as per the averments made in the plaint, the common
ancestor of the parties to the suit had expired on 12.3.1955 when
according to the plaintiffs succession opened. The plaintiffs have
claimed 1/2 share in the suit properties left by the deceased
Maganbhai on his death on 12.3.1955, whereas the suit is filed only
on 22.8.2007 i.e. after a lapse of more than 52 years from the date
of succession is alleged to have opened to the plaintiffs. Thus, the
suit is also barred by law of limitation and therefore, the plaint is
liable to be rejected. In view of the aforesaid facts and
circumstances of the case, the order passed by the learned Judge
deserves to be quash and set aside.

4. Learned Senior Advocates
for the applicants have placed reliance on the following judgments.
They are as under :-

(i) T. Arivandandam Vs. T.V.

Satyapal & Anr., reported in AIR 1977 SC 2421.

(ii) I.T.C. Limited Vs.
Debts Recovery Appellate Tribunal & Ors., reported in (1998) 2
SCC 70.

(iii) Raj Narain Sarin &
Ors. Vs. Laxmi Devi & Ors., reported in (2002) 10 SCC 501.

(iv) Sopan Sukhdeo Sable &
Ors. Vs. Assistant Charity Commissioner & Ors., reported in
(2004) 3 SCC 137.

(v) Lalitaben wd/o
Baldevbhai Manibhai Suthar Vs. Niruben Ramanbhai Suthar & Anr.,
reported in 2007(1) GLH 403.

(vi) Smt. Bagirathi &
Ors. Vs. S. Manivanan & Anr., reported in AIR 2008 Madras 250.

(vii) Jageshwari Devi &
Ors. Vs. Shatrughan Ram, reported in (2007) 15 SCC 52.

(viii) Ranjeet Mal Vs.
Poonam Chand & Anr., reported in AIR 1983 Rajasthan 1.

(ix) Sukhpal Singh Vs. State
of Rajasthan & Ors., reported in AIR 1998 Rajasthan 103.

(x) Purnmasi Yadav Vs.
Narbedeshwar Tripathi & Ors., reported in AIR 1998 Allahabad 260.

(xi) Maharaj Shri
Manvendrasinhji R. Jadeja Vs. Rajmata Vijaykunverba wd/o Maharaja
Mahendrasinhji, reported in 1999(1) GLR 261.

(i) In
T. Arivandandam Vs. T.V. Satyapal & Anr., reported in AIR 1977 SC
2421, the learned Senior Advocates have placed reliance on Para 5,
which is as under:-

5. We have not the
slightest hesitation in condemning the petitioner for the gross abuse
of the process of the court repeatedly and unrepentently 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, 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 clear 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 O. X. C.P.C. An activist Judge is the answer
to irresponsible law suits. The trial Courts would insist
imperatively on examining the party at the first hearing so that
bogus litigation can be shot down at the earliest stage. The Penal
Code is also resourceful enough to meet such men, (Ch. XI) 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.”

(ii) In I.T.C. Limited Vs.
Debts Recovery Appellate Tribunal & Ors., reported in (1998) 2
SCC 70, learned Senior Advocates have placed reliance on Para 12 and
13, which are as under:-

12. The first point here is
whether the power to reject the plaint under Order 7 Rule 11 CPC can
be exercised even after the framing of issues, and when the matter is
posted for evidence. This point has arisen because the Division Bench
of the High Court has referred to this aspect while dismissing the
appeal.

13. We may state that in
the context of Order 7 Rule 11 CPC, a contention that once issues
have been framed, the matter has necessarily to go to trial has been
clearly rejected by this Court in Azhar Hussain v. Rajiv Gandhi, 1986
Supp. SCC 315 (SCC p.324) as follows : (SCC para 12)

In substance, the
argument is that the court must proceed with the trial, record and
evidence, and only after the trial … is concluded that the powers
under the Code of Civil Procedure for dealing appropriately with the
defective petition which does not disclose cause of action should be
exercised. With respect to the learned counsel, it is an argument
which is difficult to comprehend. The whole purpose of conferment of
such powers 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….

The abovesaid judgment
which related to an election petition is clearly applicable to suits
also and was followed in Samar Singh v. Kedar Nath, 1987 Supp. SCC

663. We therefore hold that the fact that issues have been framed in
the suit cannot come in the way of consideration of this application
filed by the appellant under Order 7 Rule 11 CPC.

(iii) Raj Narain Sarin &
Ors. Vs. Laxmi Devi & Ors., reported in (2002) 10 SCC 501 is
cited by the learned Senior Advocates in support of the submissions
that if the plaint on perusal of it manifestly appears to be
vexatious or meritless in the sense of not disclosing a clear right
to sue, the Trial Court can exercise its power under Order 7 Rule 11
of the CPC.

(iv) In Sopan Sukhdeo Sable
& Ors. Vs. Assistant Charity Commissioner & Ors., reported in
(2004) 3 SCC 137, the Apex Court considered the nature and scope of
Order 7 Rule 11 and held that Order 7 Rule 11 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. The Trial Court can
exercise the power at any stage of the suit i.e. before registering
the plaint or after issuing summons to the defendant at any time
before conclusion of the trial and also does not say in express terms
about filing of a written statement for the purposes of deciding an
application under clauses (a) and (d) of Order 7 Rule 11 of the Code.
The averments in the plaint are germane. The pleas taken by the
defendants would be wholly irrelevant at that stage. Instead the word
shall is used clearly implying thereby that Order 7 Rule 11
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
Order 7 Rule 11 even without intervention of the defendant. The Apex
Court further held that the basic question to be decided while
dealing with the application filed under Order 7 Rule 11(a) of the
CPC 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
around Order 7 Rule 11. 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(a) taking
care to see that the ground mentioned therein is fulfilled.

(v) In Lalitaben wd/o
Baldevbhai Manibhai Suthar Vs. Niruben Ramanbhai Suthar & Anr.,
reported in 2007(1) GLH 403, the learned Single Judge of the High
Court while considering Sections 6, 8 and 14 of Hindu Succession Act
held as under:-

Before coming into force
of Hindu Succession Act, 1956, succession amongst Hindu was governed
by Sruti, Smruti and orthodox Hindu Law. Mansmruti was the source to
provide that what would be the mode of succession. Mitakshara or
Banaras law, Daybhag or Bengal Hindu Law were also to govern the
succession. In Gujarat, succession could be governed by Mayukha
School of Hindu Law. In each of the laws, daughter or widow of the
deceased was not entitled to succession to the property left by the
last male holder, be he a Karta of Joint Hindu Family or owner in his
personal capacity. Mayukh Hindu Law which governs a part of Gujarat,
talks of the Matiarchiel family and right of the woman in property,
but to appreciate that the parties are governed by Mayukh law and the
daughter or female would be entitled to succeed to the property. Such
evidence is required to be brought on record by the person who claims
succession through her father.

….It is trite to say that
succession never remains in abeyance and on the death of last holder
or the owner, it immediately opens and the property flows in favour
of those who are entitled to succeed to the property under the law
governing the field at the material time….

A person who was offered
the property towards the maintenance, if was in possession and
continued to be in possession till coming into force of the Hindu
Succession Act, would become absolute owner of the property under S.
14 of the Hindu Succession Act. A person who simply had a right of
maintenance, but was not given any property, would not be entitled to
a partition of property after coming into force of the Hindu
Succession Act, because, succession had already opened much before
coming into force of the Hindu Succession Act. Hindu Succession Act,
in fact, conferred rights in favour of those who had no right in the
property, the Act did not revive the lost rights nor is retrospective
in operation. Hindu Succession Act was simple to crystallize and
codify the Hindu Law relating to succession. For the first time under
the codified law, right was conferred upon widow, daughter, widow of
the predeceased son and other females, who, otherwise, had no right
in the property before coming into force of the Hindu Succession Act.

….S.6 would govern the
field of succession after coming into force of Hindu Succession Act
and would not reopen the subject which already came to an end.

(vi) In Smt. Bagirathi &
Ors. Vs. S. Manivanan & Anr., reported in AIR 2008 Madras 250, a
Division Bench of Madras High Court considered the provisions of
Section 6 of Hindu Succession Act and held in Para 13, 14 and 15 as
under:-

13. A careful reading of
Section 6(1) read with 6(3) of the Hindu Succession (Amendment) Act
clearly indicates that a daughter can be considered as a coparcener
only if her father was a coparcener at the time of coming into force
of the amended provision. It is of course true that for the purpose
of considering whether the father is a coparcener or not, the
restricted meaning of the expression partition as given in the
explanation is to be attributed.

14. In the present case,
admittedly the father of the present petitioners had expired in 1975.
Section 6(1) of the Act is prospective in the sense that a daughter
is being treated as coparcener on and from the commencement of the
Hindu Succession (Amendment) Act, 2005. If such provision is read
along with Section 6(3), it becomes clear that if a Hindu dies after
commencement of the Hindu Succession (Amendment) Act, 2005, his
interest in the property shall devolve not by survivorship but by
intestate succession as contemplated in the Act.

15. In the present case,
the death of the father having taken place in 1975, succession itself
opened in the year 1975 in accordance with the existing provisions
contained in Section 6. If the contention of the petitioners is
accepted, it would amount to giving retrospective effect to the
provisions of Section 6 as amended in 2005. On the death of the
father in 1975, the property had already vested with Class-I heirs
including the daughters as contemplated in the unamended Section 6 of
the Act. Even though the intention of the amended provision is to
confer better rights on the daughters, it cannot be stretched to the
extent of holding that the succession which had opened prior to
coming into force of the amended Act are also required to be
reopened. In this connection, we are also inclined to refer to the
decision of M. Srinivasan, J., as His Lordship then was, reported in
1991(2) MLJ 199 (Sundarambal and others v. Deivanaayagam and others).
While interpreting almost a similar provision, as contained in
Section 29-A of the Hindu Succession Act, as introduced by the Tamil
Nadu Amendment Act 1 of 1990, the learned Single Judge had made the
following observations :-

14. … Under sub-clause
(1), the daughter of a coparcener shall become a coparcener in her
own right by birth, thus enabling all daughters of a coparcener who
were born even prior to 25th March, 1989 to become
coparceners. In other words, if a male Hindu has a daughter born on
any date prior to 25th March, 1989, she would also be a
coparcener with him in the joint family when the Amendment came into
force. But the necessary requisite is, the male Hindu should have
been alive on the date of the coming into force of the Amended Act.
The section only makes a daughter a coparcener and not a sister. If a
male Hindu had died before 25th March, 1989 leaving
coparcenary property, then his daughter cannot claim to be a
coparcener in the same manner as a son, as, on the date on which the
Act came into force, her father was not alive. She had the status
only as a sister-a-vis her brother and not a daughter on the date of
the coming into force of the Amendment Act. …

(vii) In Jageshwari Devi &
Ors. Vs. Shatrughan Ram, reported in (2007) 15 SCC 52, the Apex Court
considered the scope of Order 7 Rule 11(a) and held that
non-disclosure of the cause of action is distinct from a defective
cause of action. The former falls but the latter does not fall within
the scope of Order 7 Rule 11(a). The latter is to be decided during
the trial of the suit and therefore, the contention which was raised
by the defendant that the disclosed cause of action was vague and
incomplete and therefore, it could not be a ground for rejection of
the plaint.

(viii) In Ranjeet Mal Vs.
Poonam Chand & Anr., reported in AIR 1983 Rajasthan 1, the Hight
Court has considered the provisions of Order 7 Rule 11(a) of the CPC
and held that while deciding the application under Order 7 Rule
11(a), the Court has to consider as to whether the plaint discloses
any cause of action or not and to find out from the allegations of
the plaint itself as to whether it is bogus, wholly vexatious or
frivolous litigation initiated under the garb of ingenious drafting
of the plaint and to guard against the mischief of a litigant
misusing the process of the Court by entering into a false litigation
merely for the purpose of harassing the other party and obtaining
undue advantage of the process of the Court by adopting tactics and
in starting sham and shady actions.

(ix) In Sukhpal Singh Vs.
State of Rajasthan and others, reported in AIR 1998 Rajasthan 103,
the Hon’ble Rajasthan High Court while considering the provisions of
Order 7 Rule 11 held in Para 25 as under:-

25. If in the light of the
above, the instant case is examined, it is abundantly clear that if
the facts stated, the grounds and allegations and the averments made
therein are taken into consideration in totality, it is abundantly
clear in sum and substance that the respondent No.3 plaintiff has
made a grievance that the Will, on the basis of which the present
petitioner defendant has got the mutation, is void being a forged
and fabricated document as it had never been executed by their father
Ishar Singh. If the Revenue Court comes to the conclusion that it was
never executed by late (Shri) Ishwar Singh, it is not necessary for
the Revenue Court to declare it a nullity as it can be simply ignored
and in that situation, by ignoring the said Will, the other reliefs
claimed by the respondent No.3 plaintiff can be granted by the
Revenue Court as according to the averments in the plaint, neither
the body nor mind of Shri Ishar Singh accompanied the alleged Will
and the said instrument, being non est, is just to be ignored.
Moreover, this petition has arisen only against an order passed on
the application filed by the petitioner defendant under Order 7,
Rule 11, CPC and it is settled law that such an application cannot be
entertained and allowed where the validity of a particular document
is under challenge.

(x) In Purnmasi Yadav Vs.
Narbedeshwar Tripathi and others, reported in AIR 1998 Allahabad 260,
the Hon’ble Allahabad High Court has observed in Para 5 as under :-

5. The power under Order
7, Rule 11 speaks of rejection of plaint under four circumstances,
the first one being non-disclosure of cause of action, and the last
one is on a bar of suit under any provision of law. the other two
grounds on which a plaint could be rejected relate to valuation and
non-payment of Court fees, which are not matters concerned with the
present case. For an order under Order 7, Rule 11, CPC it is the
plaint and the plaint alone which is to be considered and if the
plaint made out a case indicating a cause of action then the falsity
of the claim would be a matter to be determined at the trial and if
at all the suit was found to be vexatious or based on false
assertion, the plaintiff would be liable for compensatory costs under
S. 35-A, CPC. The judgment of the Supreme Court that was quoted by
the Trial Judge also spoke that a meaningful reading of the plaint
was necessary before rejecting a plaint under Order 7, Rule 11, CPC.

(xi) In Maharaj Shri
Manvendrasinhji R. Jadeja Vs. Rajmata Vijaykunverba wd/o Maharaja
Mahendrasinhji, reported in 1999(1) GLR 261, the Hon’ble Division
Bench of this Court considered the provisions and scope of Order 7
Rule 11(a) of CPC and held in Para 14, 15 and 16 as under:-

14. Having noticed brief summary of the plaint and prayers earlier, it would be relevant to refer to the provisions of Order 7, R.11(a) of the CPC and the scope thereof. Order 7, R.11(a) of the CPC provides that the plaint shall be rejected in case where it does not disclose a cause of action. Order 7, R.11(a) of the CPC is mandatory and if it is found that the plaint does not disclose a cause of action, the Court has no option but to reject the plaint. To find out whether a plaint discloses a cause of action or not, the Court has to look only to the averments made in the plaint. When a plaint is based on a document filed along with the plaint, it can, however, be considered to ascertain if plaint discloses any cause of action. Cause of action means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. The words “cause of action” mean the whole bundle of material facts which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit. What is to be done by the Court at the stage of deciding as to whether the plaint discloses any cause of action or not is to find out from the allegation of the plaint itself as to whether a bogus, wholly vexatious or frivolous litigation is sought to be initiated under the garb of ingenuous drafting of the plaint or not because it is the duty of the Court to guard against the mischief of a litigant misusing the process of court by entering into a false litigation merely for the purpose of harassing the other party and to nip in the bud the litigation which is sham and shabby in character. In order to find out whether the plaint discloses a cause of action or not, the averments made in the plaint and documents annexed thereto should be scrutinised meaningfully and if on such scrutiny it is found that the plaint does not disclose cause of action, it has got to be rejected in view of the provisions of Order 7, R.11(a) of the CPC. When it is said that the Court should take into consideration the averments made in the plaint for the purpose of deciding the question whether the averments made in the plaint disclose cause of action or not, it does not mean that the Court is precluded from applying the statutory provisions or case-law to the averments made in the plaint. If an assertion made in the plaint is contrary to statutory law or case-law, it cannot be considered as disclosing cause of action. In ITC Ltd. (supra), bank had filed suit against the appellant and others and claimed relief for a sum of Rs.52,59,639-66 ps. After the suit was filed, it was transferred to the Debt Recovery Tribunal. Before the Tribunal, an application was filed by the appellant under Order 7, R.11 of the CPC for rejecting the plaint, so far as appellant was concerned, on the ground that no valid cause of action had been shown against the appellant. That application was rejected by the Tribunal. Against the said order, an appeal was filed before the Debts Recovery Appellate Tribunal. The appeal was dismissed in limine. Thereupon a writ petition was filed by the appellant, which was dismissed holding that the question should be decided at the trial. Against that judgment, the appellant had filed an appeal before the Division Bench of the High Court, which was also dismissed. The matter was thereafter carried before the Supreme Court. After taking into consideration the decided cases on the point whether there was fraudulent movement of goods under which letter of credit was obtained which in turn entitled the bank to file the suit, the Supreme Court held that that point was already decided by decision of the Supreme Court in U.P. Co-operative Federation’s case and therefore, the allegation of non-supply of goods by the sellers to the buyers did not by itself amount, in law, to a plea of “fraud” as understood in this branch of the law and hence by merely characterising alleged non-movement of goods as “fraud”, the bank was not entitled to claim that there was a cause of action based on fraud or misrepresentation. While allowing the appeal, what is emphasised by the Supreme Court is that the question 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, R.11 of the CPC has to be decided with reference to averments made in the plaint and 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. In view of this decision of the Supreme Court, it is evident that if something purely illusory has been stated with a view to get out of Order 7, R.11 of the CPC by resorting to clever drafting, it cannot be said that the plaint discloses a cause of action and if a clear right to sue is not shown in the plaint, it is liable to be rejected.

15. In the light of scope of Order 7, R.11(a) of the CPC, we would now proceed to examine different submissions made on behalf of the appellant. The submission that the plaint was presented on December 26,1978, whereas issues for determination were framed by the learned Judge on July 21, 1981 and therefore the application filed by the respondent under Order 7, R.11(a) of the CPC on June 26, 1996 should not have been entertained at such a long distance of time, has no substance. As noted earlier, the provisions of Order 7, R.11(a) of the Code of Civil Procedure are mandatory in nature. It is the duty of the Court to reject the plaint which does not disclose cause of action. If a plaint can be rejected at threshold of the proceedings, we do not see any reason as to why it cannot be rejected at any subsequent stage of the proceedings. Even if after framing of issues, the basic defect in the plaint persists, namely, absence of cause of action, it is always open to the contesting defendants to insist that the plaint be rejected under Order 7, R.11 of the CPC and the Court would be acting within its jurisdiction in considering such a plea. Order 7, R.11 of the CPC does not place any restriction or limitation on the exercise of the court’s power. It does not either expressly or by necessary implication provide that power under Order 7, R.11 of the CPC should be exercised at a particular stage only. In the view we are taking, we are fortified by the judgment of the Supreme Court rendered in the case of ITC Ltd. (supra). Therein, the suit was filed by the Bank in the year 1985. In 1995, it was transferred to Debt Recovery Tribunal and thereafter an application was filed by the appellant under the provisions of Order 7, R.11 of the CPC for rejection of the plaint as not disclosing any cause of action against the appellant. The application filed by the appellant was rejected not only by the Tribunal and Appellate Tribunal, but also by the High Court. When the matter reached before the Supreme Court in the year 1997, it was contended that the power under Order 7, R.11 of the CPC should not be exercised after such a long lapse of time, more particularly when issues were framed. That plea has been negatived by the Supreme Court in following terms:-

“13. We may state that in the context of Order 7 Rule 11 CPC, a contention that once issues have been framed, the matter has necessarily to go to trial has been clearly rejected by this Court in Azhar Hussain v. Rajiv Gandhi (SCC p.324) as follows: (SCC para 12)

“In substance, the argument is that the Court must proceed with the trial, record the evidence, and only after the trial…is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which is difficult to comprehend. The whole purpose of conferment of such powers 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…”

The abovesaid judgment which related to an election petition is clearly applicable to suits also and was followed in Samar Singh v. Kedar Nath. We therefore hold that the fact that issues have been framed in the suit cannot come in the way of consideration of this application filed by the appellant under Order 7 Rule 11 CPC.”

16. In view of settled legal position, plea that powers under Order 7, R.11(a) of the CPC should not have been exercised after framing of issue cannot be upheld and is hereby rejected.

Thus,
it is submitted by the learned Senior Advocates that considering the
ratio laid down in the above-mentioned judgments, the Revision
Application deserves to be allowed and the order passed by the Trial
Court be set aside.

5. Mr
Amit V Thakkar, learned advocate for the opponents has placed
reliance on the following judgments. They are as under :-

(i) Liverpool & London
S.P. & I Asson. Ltd. Vs. M.V. Sea Success I & Anr., reported
in JT 2003(9) SC 218.

(ii) British Airways Vs. Art
Works Export Ltd. & Ors., reported in AIR 1986 Calcutta 120.

(iii) State of Orissa Vs.
Klockner and Company & Ors., reported in AIR 1996 SC 2140.

(iv) Prem Lala Nahata &
Anr. Vs. Chandi Prasad Sikaria, reported in AIR 2007 SC 1247.

(v) Kamala & Ors. Vs.
K.T. Eshwara Sa & Ors., reported in AIR 2008 SC 3174.

(vi) Salem Advocate Bar
Association, Tamil Nadu Vs. Union of India, reported in AIR 2003 SC

189.

(vii) Vidya Devi alias Vidya
Vati Vs. Prem Prakash & Ors., reported in AIR 1995 SC 1789.

(viii) Virender Nath Gautam
Vs. Satpal Singh & Ors., reported in (2007) 3 SCC 617.

(i) In
Liverpool & London S.P. & I Asson. Ltd. Vs. M.V. Sea Success
I & Anr., reported in JT 2003(9) SC 218, the Apex Court
considered the provisions of Order 7 Rule 11(a) of the CPC and held
as under :-

It may be true that Order
7 Rule 11(a) although authorises the court to reject a plaint on
failure on the part of the plaintiff to disclose a cause of action
but the same would not mean that the averments made therein or a
document upon which reliance has been placed although discloses a
cause of action, the plaint would be rejected on the ground that such
averments are not sufficient to prove the facts stated therein for
the purpose of obtaining reliefs claimed in the suit. The approach
adopted by the High Court, in this behalf, in our opinion, is not
correct. (Para 145)

In ascertaining whether the
plaint shows a cause of action, the court is not required to make an
elaborate enquiry into doubtful or complicated questions of law or
fact. By the statute the jurisdiction of the court is restricted to
ascertaining whether on the allegations a cause of action is shown.
(Para 150)

The approach of the High
Court, in our considered opinion, is not correct. For the purpose of
rejecting a plaint, it is not necessary to consider whether the
averments made in the plaint prove the factum that the defendant no.1
Sea Success-I is a sister ship of Sea Glory and Sea
Ranger or the said two ships are beneficially owned by the
defendant no.2. The reasons which have been assigned in support of
the said aforementioned finding that the ship is a valuable
commercial chattel and her arrest undeservingly prejudices third
parties as well as affect the interest of owner and others is a
question which must be gone into when passing a final order as regard
interim arrest of ship or otherwise. For the aforementioned purpose
the vessel herein could file an application for vacation of stay.
While considering such an application, the court was entitled to
consider not only a prima facie case but also the elements of balance
of convenience and irreparable injury involved in the matter. In such
a situation and particularly when both the parties disclose their
documents which are in their possession, the court would be in a
position to ascertain even prima facie as to whether the club has
been able to make out that Sea Glory and Sea Ranger are
sister vessels of the vessel . (Para 153)

The reason for the
aforementioned conclusion is that if a legal question is raised by
the defendant in the written statement, it does not mean that the
same has to be decided only by way of an application under Order 7
Rule 11 of the Code of Civil Procedure which may amount to
pre-judging the matter. (Para 154)

Furthermore, the question
as to whether the asset of a 100% subsidy can be treated as an asset
of the parent company would again depend upon the fact situation of
each case. (Para 155)

(ii) In British Airways Vs.
Art Works Export Ltd. & Ors., reported in AIR 1986 Calcutta 120,
The Hon’ble Calcutta High Court considered the provisions of Order 7
Rule 11(a) of the CPC and held in Para 12 and 13 as under :-

12. We are unable to
accept the contention of the learned Counsel for the petitioner.
Under Cl. (a) of O.7, R.11, the plaint shall be rejected where it
does not disclose a cause of action. The plea of the petitioner that
there is no cause of action for the suit is not same as to say the
plaint does not disclose any cause of action, which is a ground for
the rejection of the plaint. Indeed, the plaint discloses a cause of
action. The correctness or otherwise of the allegations constituting
the cause of action is beyond the purview of Cl.(a) of O.7, R.11. It
is not the case of the defendant petitioner that the plaint does not
disclose a cause of action but, as stated already, its case is that
there is no cause of action for the suit which is not a ground for
rejection of plaint under O.7, R.11 of the Civil P.C. This view finds
support from a Bench decision of the Assam High Court in Santi Ranjan
Das Gupta v. Dasuram Mirzamal, AIR
1957 Assam 49, where it has been
laid down that a plea that there was no cause of action for the suit
is something different from saying that the plaint itself did not
disclose any cause of action. There is, therefore, no substance in
the contention made in the instant case on behalf of the petitioner
that the learned Judge should have rejected the plaint on the ground
that there is no subsisting cause of action for the suit.

13. The second ground that
has been urged on behalf of the petitioner is that the suit is barred
by the provision of Art. 30(1) of the Second Schedule to the Act. It
is submitted that in view of Art. 30(1), the right of the plaintiff
opposite party No.1 to sue for damages stood extinguished on the date
the suit was filed. On the other hand, it is submitted by Mr.
Chatterjee, learned Counsel appearing on behalf of the plaintiff
opposite party No.1 that in view of Art.30(2) of the Second Schedule
to the Act, the right of the plaintiff to sue the defendant
petitioner for damages was, prima facie, subsisting on the date the
suit was filed. In other words, it is submitted that as under Art.
30(2), the method of calculating the period of limitation shall be
determined by the law of the Court seized of the case, the provision
of the Limitation Act, 1963 will apply for the purpose of computing
the period of two years mentioned in Art.30(1). In our opinion, in
view of the provision of Art.30(2), it requires some consideration
whether the suit is barred by Art. 30(1) or not. It may be stated
here that in the plaint the plaintiff opposite party No.1 has pleaded
acknowledgment by the defendant petitioner of its liability, and that
the period of two years referred to in Art.30(1) should be computed
after taking into consideration such acknowledgment. It is,
therefore, difficult to say at this stage whether the suit is barred
by the provision of Art. 30(1) or not. Where on the face of the
plaint a suit appears to be barred by any law, the Court shall
dismiss the suit. But where it does not so appear, but requires
further consideration or, in other words, if there be any doubt or if
the Court is not sure and certain that the suit is barred by some
law, the Court cannot reject the plaint under Cl.(d) of O.7, R.11 of
the Civil P.C. Both the grounds as embodied in Cls.(a) and (d) of
O.7, R.11 must appear on the face of the plaint. In the instant case,
however, it cannot be said that the plea of the defendant petitioner
that the suit is barred by the provision of Art.30(1) of the Second
Schedule to the Act appears on the face of the plaint in view of Art.
30(1) read with Art. 30(2) of the Second Schedule to the Act.

(iii) In State of Orissa Vs.
Klockner and Company & Ors., reported in AIR 1996 SC 2140, the
Apex Court considered the scope of Order 7 Rule 11(a) and (d) and
held in Para 24 as under :-

24. Now coming to
Special Leave Petition (C) No. 19846/95, this petition is filed
against the judgment and order of the High Court of Orissa at Cuttack
in First Appeal No. 14/95 dated 12-5-1995. By the Order under appeal,
the High Court has reversed the Order of the learned Subordinate
Judge. Bhubaneswar dated 26-3-94, by which the learned Subordinate
Judge accepting an application filed under Order 7, Rule 11, C.P.C.
rejected the plaint in title suit No. 231/92 filed by the first
respondent in Special Leave Petition. The learned single Judge of the
High Court while reversing the Order of the learned Subordinate Judge
observed as follows :-

“In the present case on
a fair reading of the petition filed by the defendant No.1 under
Order 7, Rule 11 of C.P.C. it is clear that the case of the applicant
is that the plaintiff has no cause of action to file the suit. It is
not specifically pleaded by the applicant that the plaint does not
disclose any cause of action. The learned trial Judge has also not
recorded any specified finding to this effect. From the discussions
in the order it appears that the learned trial Judge has not
maintained the distinction between the plea that there was no cause
of action for the suit and the plea that the plaint does not disclose
a cause of action. No specific reason for ground is stated in the
order in support of the finding that the plaint is to be rejected
under 0.7, R.11(a). From the averments in the plaint, it is clear
that the plaintiff has pleaded a cause of action for filing the suit
seeking the reliefs stated in it. That is not to say that the
plaintiff has cause of action to file the suit for the reliefs sought
that question is to be determined on the basis of materials (other
than the plaint) which may be produced by the parties at appropriate
stage in the suit. For the limited purpose of determining the
question whether the suit is to be wiped out under Order 7, Rule
11(1) or not the averments in the plaint are only to be looked into.
The position noted above is also clear from the petition filed by
defendant No. 1 under Order 7, Rule 11 in which the thrust of the
case pleaded is that on the stipulation in the agreement of 20-4-82
the plaintiff is not entitled to file a suit seeking any of the
reliefs stated in the plaint.

10. Coming to the question
whether the plaint is to be rejected under Clause (d) of Rule 11 of
Order 7, the Supreme Court in the case of Orient Transport Co. (AIR
1987 SC 2289) (supra) has clearly laid down that there is a
distinction between a case in which the validity, effect and
existence of the arbitration agreement is challenged and suit in
which the validity of the contract which contains an arbitration
clause is challenged. The bar to suit under Section 32 of the
Arbitration Act extends to a case where the existence, effect or
validity of an arbitration agreement is challenged and not to the
latter type of the suit. On this question too the learned trial Judge
has failed to maintain the distinction between the two types of
cases. He has failed to notice that the case pleaded by the plaintiff
is that the entire agreement including the arbitration clause is null
and void and unenforceable and not that the arbitration agreement is
null and void.

11. From the lower Court
record in the case and also the records in a similar suit filed by
the State of Orissa. Title Suit No. 152 of 1993 in which O.M.C. Ltd.
is a defendant, it appears that in both the cases the defendant No.1

– Klockner and Co. filed applications under Section 3 of the Foreign
Awards (Recognition and Enforcement) Act, 1961. Such application
presupposes that the applicant accepts the position that the said
applies to the case and the Arbitration Act, 1940 has no application
to the case. Under the Foreign Awards Act, there is no specific
provision for bar of suit. Further, from the averments in the
application filed under Order 7, Rule 11 of C.P.C. it is clear that
the main case pleaded by the applicant was that the parties had
agreed that the Swiss Law will be applicable to the contract as well
as the arbitration agreement and the venue of arbitration will be at
London and, therefore, the Indian Law in general and the arbitration
Act in particular, have no application to the case. Alternatively the
applicant has pleaded that even assuming that the Indian Law of
Arbitration applies to the case then the suit is barred under Section
32 of the Act. The learned trial Judge does not appear to have
considered the main case pleaded by the applicant but disposed the
petition on consideration of the alternative case pleaded by it.
Therefore this finding against bar of the suit under Order 7, Rule 11

(d) is also vitiated.

12. On the analysis and
discussions in the foregoing paragraphs, it is my considered view
that the order passed by the learned trial Judge rejecting the plaint
under Order 7, Rule 11 (a) and (d) of C.P.C. is unsustainable and has
to be set aside. Accordingly the appeal is allowed and the order
dated 26-3-1994 of the Civil Judge (Senior Division), Bhubaneswar in
Misc. Case No. 75 of 1993 is set aside. There will be no order for
costs of this Court.

After hearing the learned
counsel on both sides and after carefully perusing the relevant
pleadings, we do think that the High Court has committed any error in
rejecting the application of the appellant under Order 7, Rule 11. We
accept the view taken by the High Court and consequently find no case
for interference.

In the result all the Civil
Appeals are dismissed with costs and Special Leave petition is
dismissed without costs.

(iv) In Prem Lala Nahata &
Anr. Vs. Chandi Prasad Sikaria, reported in AIR 2007 SC 1247, the
Apex Court while considering the provisions of Order 7 Rule 11(d)
held in Para 14 and 15 as under:-

14. Order VII, Rule 11

(d) speaks of the suit being “barred by any law”. According
to the Black’s Law Dictionary, bar means, a plea arresting a law suit
or legal claim. It means as a verb, to prevent by legal objection.
According to Ramanatha Aiyar’s Law Lexicon, ‘bar’ is that which
obstructs entry or egress; to exclude from consideration. It is
therefore necessary to see whether a suit bad for misjoinder of
parties or of causes of action is excluded from consideration or is
barred entry for adjudication. As pointed out already, on the scheme
of the Code, there is no such prohibition or a prevention at the
entry of a suit defective for misjoinder of parties or of causes of
action. The court is still competent to try and decide the suit,
though the court may also be competent to tell the plaintiffs either
to elect to proceed at the instance of one of the plaintiffs or to
proceed with one of the causes of action. On the scheme of the Code
of Civil Procedure, it cannot therefore be held that a suit barred
for misjoinder of parties or of causes of action is barred by a law,
here the Code. This may be contrasted with the failure to comply with
Section 80 of the Code. In a case not covered by sub-section (2) of
Section 80, it is provided in sub-section (1) of Section 80 that “no
suit shall be instituted”. This is therefore a bar to the
institution of the suit and that is why courts have taken the view
that in a case where notice under Section 80 of the Code is
mandatory, if the averments in the plaint indicate the absence of a
notice, the plaint is liable to be rejected. For, in that case, the
entertaining of the suit would be barred by Section 80 of the Code.
The same would be the position when a suit hit by Section 86 of the
Code is filed without pleading the obtaining of consent of the
Central Government if the suit is not for rent from a tenant. Not
only are there no words of such import in Order I or Order II but on
the other hand, Rule 9 of Order I, Rules 1 and 3 of Order I, and
Rules 3 and 6 of Order II clearly suggest that it is open to the
court to proceed with the suit notwithstanding the defect of
misjoinder of parties or misjoinder of causes of action and if the
suit results in a decision, the same could not be set aside in
appeal, merely on that ground, in view of Section 99 of the Code,
unless the conditions of Section 99 are satisfied. Therefore, by no
stretch of imagination, can a suit bad for misjoinder of parties or
misjoinder of causes of action be held to be barred by any law within
the meaning of Order VII, Rule 11(d) of the Code.

15. Thus, when one
considers Order VII, Rule 11 of the Code with particular reference to
Clause (d), it is difficult to say that a suit which is bad for
misjoinder of parties or misjoinder of causes of action, is a suit
barred by any law. A procedural objection to the impleading of
parties or to the joinder of causes of action or the frame of the
suit, could be successfully urged only as a procedural objection
which may enable the Court either to permit the continuance of the
suit as it is or to direct the plaintiff or plaintiffs to elect to
proceed with a part of the suit or even to try the causes of action
joined in the suit as separate suits.

(v) In
Kamala & Ors. Vs. K.T. Eshwara Sa & Ors., reported in AIR
2008 SC 3174, the Apex Court while considering the provisions of
Order 7 Rule 11(d) as well as (a) and held in Para 15, 16 and 23 as
under :-

15. Order VII, Rule 11(d)
of the Code has limited application. It must be shown that the suit
is barred under any law. Such a conclusion must be drawn from the
averments made in the plaint. Different clauses in Order VII, Rule
11, in our opinion, should not be mixed up. Whereas in a given case,
an application for rejection of the plaint may be filed on more than
one ground specified in various sub-clauses thereof, a clear finding
to that effect must be arrived at. What would be relevant for
invoking clause (d) of Order VII, Rule 11 of the Code is the
averments made in the plaint. For that purpose, there cannot be any
addition or sub traction. Absence of jurisdiction on the part of a
court can be invoked at different stages and under different
provisions of the Code. Order VII, Rule 11 of the Code is one, Order
XIV, Rule 2 is another.

16. For the purpose of
invoking Order VII, Rule 11(d) of the Code, no amount of evidence can
be looked into. The issues on merit of the matter which may arise
between the parties would not be within the realm of the court at
that stage. All issues shall not be the subject-matter of an order
under the said provision.

The principles of res
judicata, when attracted, would bar another suit in view of Section
12 of the Code. The question involving a mixed question of law and
fact which may require not only examination of the plaint but also
other evidence and the order passed in the earlier suit may be taken
up either as a preliminary issue or at the final hearing, but, the
said question cannot be determined at that stage.

It is one thing to say
that the averments made in the plaint on their face discloses no
cause of action, but it is another thing to say that although the
same discloses a cause of action, the same is barred by a law.

The decisions rendered by
this Court as also by various High Courts are not uniform in this
behalf. But, then the broad principle which can be culled out
therefrom is that the court at that stage would not consider any
evidence or enter into a disputed question of fact of law. In the
event, the jurisdiction of the court is found to be barred by any
law, meaning thereby, the subject-matter thereof, the application for
registration of plaint should be entertained.

23. One of the grounds
taken in the counter-affidavit of the respondent Nos. 10, 11, 13 and
17 under Order VII, Rule 11(d) of the Code is as under :

“16. So far as item No.
8 of the Schedule-A, the subsequent purchases have made flats and 80%
have been sold to third party and the third-party interest have been
created and third parties are not made parties before the Court.
Hence, the suit is bad in law for misjoinder and non-joinder of
necessary parties. Moreover, third party’s interest has been created
and separate khatas have been issued.”

(vi) In Salem Advocate Bar
Association, Tamil Nadu Vs. Union of India, reported in AIR 2003 SC
189, the Apex Court while considering the provisions of Order 7 Rule
11(e) and (f) held in Para 16 as under :-

16. Our attention has
been drawn to Order 7, Rule 11 to which clauses (e) and (f) have been
added which enable the Court to reject the plaint where it is not
filed in duplicate or where the plaintiff fails to comply with the
provisions of Rule 9 of Order 7. It appears to us that the said
clauses being procedural would not require the automatic rejection of
the plaint at the first instance. If there is any defect as
contemplated by Rule 11(e) or non-compliance as referred to in Rule
11(f), the Court should ordinarily give an opportunity for rectifying
the defects, and in the event of the same not being done the Court
will have the liberty or the right to reject the plaint.

(vii) In
Vidya Devi alias Vidya Vati Vs. Prem Prakash & Ors., reported in
AIR 1995 SC 1789, the Apex Court considered Section 186 of the Delhi
Land Reforms Act and Sections 64 and 65 of the Limitation Act and
held in Para 21 and 22 as under:-

21. The legislature has
not prescribed any period of limitation for filing a suit for
partition because partition is an incident attached to the property
and there is always a running cause of action for seeking partition
by one of the co-sharers if and when he decides not to keep his share
joint with other co-sharers. Since the filing of the suit is wholly
dependent upon the will of the co-sharer, the period of limitation,
specially the date or time from which such period would commence,
could not have been possibly provided for by the legislature and,
therefore, in this Act also a period of limitation, so far as suits
for partition are concerned, has not been prescribed. This, however,
does not mean that a co-sharer who is arrayed as a defendant in the
suit cannot raise the plea of adverse possession against the
co-sharer who has come before the Court as a plaintiff seeking
partition of his share in the joint property.

22. Normally, where the
property is joint, co-sharers are the representatives of each
another. The co-sharer who might be in possession of the joint
property shall be deemed to be in possession on behalf of all the
co-sharers. As such, it would be difficult to raise the plea of
adverse possession by one co-sharer against the other. But if the
co-sharer or the joint owner had been professing hostile title as
against other co-sharers openly and to the knowledge of other joint
owners, he can, provided the hostile title or possession has
continued uninterruptedly for the whole period prescribed for
recovery of possession, legitimately acquire title by adverse
possession and can plead such title in defence to claim for
partition.

“Adverse possession”

means hostile possession, that is, a possession which is expressly in
denial of the title of the true owner. (See Gaya Parshad Dikshit v.
Nirmal Chander, AIR
1984 SC 930). The denial of title of the true
owner is a sign of adverse possession. In Ezaz Ali v. Special
Manager, Court of Wards, AIR 1935 PC (at p.56), it was observed:

“The principle of law
is firmly established that a person, who bases his title on adverse
possession, must show by clear and unequivocal evidence that his
possession was hostile to the real owner and amounted to a denial of
his title to the property claimed.”

(viii) In
Virender Nath Gautam Vs. Satpal Singh & Ors., reported in (2007)
3 SCC 617, the Apex Court observed in Para 51 and 52 as under :-

51. In our considered
opinion, material facts which are required to be pleaded in the
election petition as required by Section 83(1) of the Act read with
Order 7 Rule 11(a) of the Code have been pleaded by the election
petitioner, cause of action has been disclosed in the election
petition and, hence, the petition could not have been dismissed by
the High Court. The impugned order of the High Court suffers from
infirmity and cannot be sustained.

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.

6. Mr
Amit V Thakkar, learned advocate for the opponents submitted that the
learned Trial Judge has not committed any error which would call for
interference in the Revision Application preferred under Section 115
of the Code. The learned Trial Judge has rightly passed the order
below application Exh.47 and directed that proper Court fee in view
of the prayer under Order 7 Rule 11(b) and (c) is required to be
carried out within a period of 15 days and the same was considered at
length by the learned Judge. While passing the aforesaid order, the
learned Trial Judge has considered in an exhaustive manner all the
contentions taken up by both the parties and there is no infirmity or
illegality in the order passed by the learned Trial Judge which would
call for interference while exercising the powers under Section 115
of the Code. Even the provisions of Order 7 Rule 11(a) and (d) as
contended by the applicants cannot be attracted in the facts and
circumstances of the present case and therefore, the learned Judge
has rightly rejected the application for rejection of plaint as
provided under Order 7 Rule 11(a) and (d) of the Code and as no
infirmity or illegality is caused by the learned Judge while passing
the order below application Exh.47, the Revision Application deserves
to be rejected as it is devoid of merits.

7. I
have heard Mr Mihir
Thakore and Mr PC Kavina, learned Senior Advocates with Mr AB Munshi
for the applicants original defendants and Mr Amit V Thakkar,
learned advocate for the opponents original plaintiffs. I have
also considered the judgments cited by the learned counsel of both
the sides and there is no dispute about the ratio or proposition laid
down in those judgments. The order passed below Exh.47 in Regular
Civil Suit No.397 of 2007 by the learned 7th
Additional Senior Civil Judge and JMFC, Surat dated 2.2.2009 is also
taken into consideration by me.

8. The
original plaintiffs filed the suit for declaration and injunction
against the defendants, wherein the application was given by the
present applicants original defendants under Order 7 Rule 11(a),

(b) and (d) of the Code. Order 7 Rule 11(a), (b) and (d) of the Code
is reproduced hereinbelow :-

(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;

(d) where
the suit appears from the statement in the plaint to be barred by any
law:

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.

9. The
learned Judge has considered the provisions of Order 7 Rule 11(a),

(c) and (d) and held that on perusal of Order 7 Rule 11(a) if the
suit does not disclose a cause of action then it is liable to be
rejected. On perusal of Para 8 of the suit, the plaintiffs have
disclosed the fact as to when the cause of action had arisen and as
per the say of the plaintiffs, the cause of action took place in
August 2007 when the defendants made an attempt to frustrate the
right of the plaintiffs in the suit lands. The plaintiffs came to
know about the aforesaid fact in August 2007. The defendants also
made an attempt to dispose of the land or alienate the land by sale.
The Court took into consideration the averments made in Para 8 of the
plaint and held that the cause of action had arisen in August 2007
and on perusal of the sale deed, it becomes clear and therefore, the
Court came to the conclusion that there is no breach of Order 7 Rule
11(a) of the Code. It is also contended by the defendants that
Maganbhai Bhagubhai Patel expired
on 12.3.1955 and at that time, Hindu Succession Act was not in force.
It came into force on 17.6.1956 and prior to 17.6.1956, Hindu law was
in force by which the daughters were not given any share in the
property of their father. In view of the above-mentioned facts,
Shantiben had no right in the property of her father. The Court took
into consideration Articles 218, 220, 213, 223(a)(4) and 230(6). The
suit filed by the plaintiffs cannot be rejected under the provisions
of Order 7 Rule 11 of the Code as contended in the application.
Considering the submissions canvassed by both the sides, the learned
Judge held how the property in question of the deceased Maganbhai
Bhagubhai Patel came into inheritance and how the entries were made
in the revenue record is a matter of evidence and therefore, an
opportunity is required to be given to the plaintiffs and therefore,
at the outset, the application cannot be rejected under Order 7 Rule
11(d) of the Code and the provisions of Order 7 Rule 11(d) cannot be
made applicable. With
regard to the contention raised by the present petitioner the
original defendants about the limitation, it is observed by the
learned Judge that the defendants gave the application vide Exh.35
contending inter-alia that the suit filed by the plaintiffs is barred
by the provisions of Limitation Act. The application was heard by the
Court and it was rejected over which Review Application was preferred
and the same was also rejected. Thereafter, the defendants filed
Special Civil Application No.10284 of 2008 in the Hon’ble Gujarat
High Court. The Hon’ble Gujarat High Court held that the application
below Exh.47 is required to be decided on merits. The learned Judge
held that in the present case, Maganbhai Bhagubhai Patel expired in
the year 1955 and the mother of the plaintiffs Shantiben expired on
19.1.2000. It has been contended in the application that when the
attempt was made to frustrate the right of the defendants and an
attempt was made to alienate the suit land, the cause
of action had arisen. However, the learned Judge held that it is a
matter of record and evidence is required to be adduced and
opportunity is required to be given to both the sides and whether the
suit of the plaintiff is barred by law of limitation is a mixed
question of law and fact and whether the plaintiffs have got any
right in the suit land is a matter of evidence and therefore, that
prayer was also rejected by the learned Judge while passing the order
below Exh.47.

10. It
is not in dispute that in the present case, Maganbhai Bhagubhai Patel
expired in the year 1955 and the mother of the plaintiffs expired on
19.1.2000. When Maganbhai Bhagubhai Patel expired on 12.3.1955, Hindu
Succession Act was not in force and it came into force on 17.6.1956
Therefore, the provisions of Hindu law were applicable when Maganbhai
Bhagubhai Patel expired on 12.3.1955 and naturally, the provisions of
Hindu law and the inheritance or succession would be governed by the
provisions of Hindu
law. When the common ancestor of the parties to the suit expired on
12.3.1955, on his death, the properties of the deceased Maganbhai
Bhagubhai Patel were inherited by his son Ramubhai to the exclusion
of his sister Shantiben. Prior to the enactment of Hindu Succession
Act, Shantiben who is the daughter of Maganbhai Bhagubhai Patel had
no right of inheritance under the Hindu law. Even as per the averment
made by the opponents i.e. the original plaintiffs that Shantiben
daughter of Maganbhai Bhagubhai Patel was entitled to the share in
the property left by the deceased Maganbhai Bhagubhai Patel on his
death on 12.3.1955 but as per the provisions of Hindu law which was
in force on the death of Maganbhai Bhagubhai Patel, she was not
entitled to a share in the said properties and therefore, the
question of claiming any right to inherit the properties left by the
deceased Maganbhai Bhagubhai Patel by the heirs of the deceased
Shantiben did not arise at all and therefore, as such the plaintiffs
had no cause of action
to file the present suit. As soon as the death of common ancestor of
the parties took place on 12.3.1955, the succession opened and the
plaintiffs have claimed 1/2 share in the suit properties left by the
deceased Maganbhai Bhagubhai Patel on his death on 12.3.1955. The
suit was filed on 22.8.2007 after lapse of 52 years from the date on
which the succession is opened to the plaintiffs. In view of the
aforesaid facts and circumstances, the suit is also barred by law of
limitation. On perusal of the reasoning given by the learned Judge,
it has been observed by the learned Judge in Para 7 and 8 that both
the parties are required to adduce the evidence in order to prove
their case and therefore, the question which was raised in the
application below Exh.47 for rejecting the plaint under the
provisions of Order 7 Rule 11(a), (c) and (d) cannot be considered
merely on the basis of the averments made in the application and the
reply filed by the other side. Even the plaint was not sufficiently
stamped and therefore, it was
liable to be rejected as provided under Order 7 Rule 11(c). The
learned Judge on perusal of the reasonings assigned by him has not
taken into consideration the aforesaid aspect in its true perspective
as well as the applicability of Hindu Succession Act and the
provisions of Hindu law at the relevant time when the succession
opened in favour of the plaintiffs i.e. after the death of Maganbhai
Bhagubhai Patel way back on 12.3.1955 while the suit is filed in
2007. It has been held by the learned Judge that certain documents
and the revenue entries are required to be considered in deciding
inheritance of the deceased Maganbhai Bhagubhai Patel and since
it is a matter of evidence, it cannot be decided only on the basis of
the application and the reply given by the other side. However, in
considering the clear position of law, the learned Trial Judge has
committed error in not rejecting the application under the provisions
of Order 7 Rule 11(a), (b) and (d) as prayed for in the application.

11. For
the foregoing reasons and in view of the clear position as narrated
hereinabove, there is substantial force in the submissions canvassed
by the learned counsel for the applicants that the application
preferred under Order 7 Rule 11(a), (c) and (d) requires to be
allowed.

12. For
the foregoing reasons, the Civil Revision Application succeeds and
the order passed by the learned 7th
Additional Senior Civil Judge and JMFC, Surat below application
Exh.47 is quashed and set aside and the application Exh.47 is allowed
in toto and the plaint for the reasons stated hereinabove being
Regular Civil Suit No.397 of 2007 is rejected in view of the clear
provisions of Order 7 Rule 11(a), (c) and (d).

[H.B.ANTANI,
J.]

After
pronouncement of the judgment, learned advocate Mr Amit Thakkar
submits that as he wants to approach the higher forum to ventilate
his grievances against the order passed by this Court, he prays for
stay of operation of this order for a period of six weeks. Learned
advocate for the other side strongly objects to this prayer. However,
considering the facts and circumstances, the order passed by this
Court is stayed for a period of six weeks from today.

[H.B.ANTANI,
J.]

mrpandya

   

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