* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ R.F.A. No.193/2000
Reserved on : 08.10.2009
Pronounced on : 29.10.2009
IN THE MATTER OF :
MS. VANDANA GYANDHAR ..... Appellant
Through: Mr. C.M. Khanna, Adv.
versus
SHRI PAWAN KUMAR & ORS. ..... Respondents
Through: Mr. Amitabh Narayan with
Mr. Avdesh Singh, Adv.
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may be allowed to see the
Judgment? Yes.
2. To be referred to the Reporter or not? Yes.
3. Whether the judgment should be reported in the Digest? Yes.
HIMA KOHLI, J.
1. Challenge in the present appeal is laid to the judgment
dated 30.11.1999 passed in a suit instituted by the appellant (plaintiff
in the court below) against the respondents for declaration and
R.F.A. No.193/2000 Page 1 of 15
mandatory injunction. The aforesaid suit of the appellant was
dismissed by the trial court on the ground that the same had been
filed by concealing material facts. Before adverting to the pleas raised
on behalf of both the parties, it would be appropriate to state in brief
the facts of the case.
2. The appellant married respondent No.1 on 9.2.1992 in New
Delhi and both the parties stayed in Delhi till 12.8.1992, whereafter
they left for U.S.A. to pursue higher studies. It is an admitted position
that on 29.6.1995, a decree of dissolution of marriage of the appellant
and the respondent No.1 was granted by the Circuit Court of State of
Oregon, United States of America. The appellant made an averment
to the said effect in the plaint and stated that she did not join the
proceedings and an ex parte decree was obtained by the respondent
No.1.
3. As per the claim of the appellant as narrated in the plaint,
prior to the decree of dissolution of marriage obtained by the
respondent No.1 in June, 1995, the issue of settlement of “stridhan
property” of the appellant was discussed between her and the
respondent No.1 and also between the parents of the respondent No.1
and the father of the appellant. However, no settlement could be
R.F.A. No.193/2000 Page 2 of 15
arrived at between the parties. On 26.6.1997, the appellant sent a
legal notice to the respondents demanding return of her stridhan
property, which was refuted by the respondents. As a result, on
2.2.1999, the appellant instituted a suit for declaration and mandatory
injunction in the trial court against her erstwhile husband, respondent
No.1, and his parents, respondents No.2 & 3.
4. Summons to the respondents were issued in the suit on
2.2.1999, returnable on 23.4.1999. On 23.4.1999, a statement was
made on behalf of the respondents that the appellant and the
respondent No.1 had got their marriage dissolved in U.S.A. After
considering the submissions made on behalf of the respondents, the
learned ADJ adjourned the matter to 13.9.1999 so as to see, whether
the appellant, who was also residing in USA, while seeking divorce in
the court in USA, had settled the issue of stridhan, dowry articles and
maintenance, etc. and directed for the personal appearance of the
appellant to record her statement under the provisions of Order 10
CPC. On 13.9.1999, the Trial Court noted as below :
“Case is today fixed for personal appearance of the
petitioner. Last hearing was fixed on 23rd April, 99, a dateR.F.A. No.193/2000 Page 3 of 15
of almost 5 months was given for appearance of the
petitioner because petitioner was stated to be in U.S.A. It
is also admitted fact that parties i.e. petitioner and
erstwhile husband after married had migrated to U.S.A. and
got their marriage dissolved in U.S.A. This petition has
been filed by the father of Ms. Vandana Gyandhar claiming
Istridhan etc. The laws of U.S.A. on rights of women are
more stringent than in India and petitioner must have made
claim for her property etc. in U.S.A. A copy of the
judgment of divorce in U.S.A. be filed in the court by the
petitioner. Counsel for the petitioner states that petitioner’s
father had earlier taken some treatment in U.S.A. Now he
has gone for check up to U.S.A. so the petitioner is not able
to come to India for appearance in this case because her
father has gone to U.S.A. for check up. Last opportunity is
given to the petitioner for her personal appearance for
recording her statement under Order 10 CPC, failing which
it will be deemed that petitioner is not interested in
prosecuting this petition because this petition has been filed
by her only to harass the respondent.
To come up for her personal appearance on 18-11-99
and for filing of the copy of the judgment.”
5. On 18.11.1999, the matter was renotified for 30.11.1999.
On 30.11.1999, though the appellant was not present, an affidavit
sworn by her in the State of Maryland, USA was filed. On the same
date, the impugned judgment came to be passed dismissing the suit of
the appellant on the ground that she had filed the same by concealing
material facts.
6. Counsel for the appellant submitted that the impugned
R.F.A. No.193/2000 Page 4 of 15
judgment is erroneous for the reason that the suit of the appellant
could not be dismissed on the ground of `concealment of material
facts’. It was submitted that mere non-appearance of the appellant
before the learned ADJ for her examination under Order 10 CPC, could
not be a ground for dismissing her suit, particularly, when her father
had instituted the suit on her behalf in the capacity of her power of
attorney, and he was available to furnish necessary information and
answer any questions relating to the suit. It was further stated that
dismissal of the suit by invoking the provisions of Order 10 Rule 4 CPC,
was unjustified in the facts of the present case as there was no
occasion for the power of attorney of the appellant, namely, her
father, or the counsel for the appellant being unable to answer any
material questions posed by the Trial Court relating to the suit.
7. It was further submitted on behalf of the appellant that
after entering appearance, the respondents had not been called upon
to file their written statement, the stage of framing of issues had yet
to arise and that till the said stage arose, the physical absence of the
appellant before the court could not be so fatal as to dismiss her suit.
R.F.A. No.193/2000 Page 5 of 15
It was further urged that without framing issues on law and facts, the
issue with regard to the claim of the appellant for return of her
stridhan could not be decided on a bare reading of the decree of the
Circuit Court of State of Oregon, United States of America and that the
court ought to have directed completion of pleadings, filing of
documents and framing of issues before returning a finding on
maintainability of the suit.
8. The main plank of the arguments urged by the counsel for
the respondents was that the decree of divorce dated 29.6.1995
passed by the Circuit Court of State of Oregon, United States of
America was a composite decree which also provided for distribution of
properties of both parties and which was binding on both the parties.
He stated that the appellant having accepted the aforesaid divorce
decree and having acted thereupon by re-marrying in the USA, cannot
be permitted to challenge a part thereof by preferring a suit. He also
submitted that apart from the operative para of the impugned
judgment, whereby the suit of the appellant was dismissed for
concealment of material facts, mention was made of the judgment of
the US Court and the learned ADJ rightly took notice of the fact that
the parties were bound by the decision of the US Court with regard to
R.F.A. No.193/2000 Page 6 of 15
the divorce and settlement of property and thus dismiss the suit of the
appellant in limine. He sought to support the impugned judgment by
urging that though it was not specifically mentioned, the trial court
had in fact invoked the provisions of Order 7 Rule 11 (d) CPC, which
empowers the court to reject a plaint where the suit appears from the
statement in the plaint, to be barred by any law.
9. In rejoinder, counsel for the appellant reiterated that while
the divorce decree passed by the US Court was not under challenge,
the relief sought by the appellant in the suit for return of her stridhan
could not be governed by the courts in USA, who did not have any
jurisdiction over the said property, and that in any case, whether
stridhan was a part of the properties, as mentioned in the decree
dated 29.6.1995 passed by the Circuit Court of State of Oregon,
United States of America, or not, was an arguable point on which
issues ought to have been framed and parties ought to have been
permitted to lead evidence.
10. The short question which engages the Court in the present
appeal is whether the trial court was justified in dismissing the suit of
R.F.A. No.193/2000 Page 7 of 15
the appellant on the ground of concealment of material facts or not ?
11. The provisions of Section 9 of the CPC provide that the civil
court shall have jurisdiction to try all suits of a civil nature except such
suits cognizance of which is either expressly or impliedly barred.
Thus, there is an inherent right in every person to institute a suit of a
civil nature and to maintain such a suit, he does not require any
authority of law as long as there is no statutory bar to the suit.
Reference in this regard may be made to the case entitled Smt. Ganga
Bai vs. Vijay Kumar & Ors., reported as (1974) 3 SCR 882, wherein
the court held as below :
“There is an inherent right in every person to bring
suit of a civil nature and unless the suit is barred by
statute one may, at once peril, bring a suit of one’s
choice. It is no answer to a suit, howsoever frivolous
the claim, that the law confers no such right to sue. A
suit for its maintainability requires no authority of law
and it is enough that no statute bars the suit.”
12. Similarly, in the case of Dhannalal vs. Kalawatibai & Ors.,
reported as (2002) Supp. 1 SCR 19, while adverting to the aforesaid
observation made in the case of Smt. Ganga Bai (supra), the Supreme
Court observed as below :
“Plaintiff is dominus litis, that is, master of, or having
dominion over, the case. He is the person who hasR.F.A. No.193/2000 Page 8 of 15
carriage and control of an action. In case of conflict of
jurisdiction the choice ought to lie with the plaintiff to
choose the forum best suited to him unless there be a
rule of law excluding access to a forum of plaintiff’s
choice or permitting recourse to a forum will be
opposed to public policy or will be an abuse of the
process of law.”
13. In the case of Abdul Gafur & Anr. vs. State of Uttarakhand
& Ors., reported as (2008) 10 SCC 97, while taking note of the
aforesaid two judgments, the Supreme Court observed as below :
“16. It is trite that the rule of pleadings postulate
that a plaint must contain material facts. When the
plaint read as a whole does not disclose material facts
giving rise to a cause of action which can be
entertained by a civil court, it may be rejected in
terms of Order 7, Rule 11 of the Code. Similarly, a
plea of bar to jurisdiction of a civil court has to be
considered having regard to the contentions raised in
the plaint. For the said purpose, averments disclosing
cause of action and the reliefs sought for therein must
be considered in their entirety and the court would not
be justified in determining the question, one way or
the other, only having regard to the reliefs claimed
de’hors the factual averments made in the plaint.”
14. Coming to the case in hand, after summons in the suit were
R.F.A. No.193/2000 Page 9 of 15
issued, appearance had been entered on behalf of the respondents. In
the complete absence of any pleadings and relevant documents, apart
from a certified copy of decree of dissolution of marriage passed by
the Circuit Court of State of Oregon, United States of America, and a
couple of documents filed by the appellant, dismissing the suit in
limine on the ground of non-furnishing of the correct addresses of the
appellant and the respondent No.1, both of who were living in USA, is
rather harsh and not a consequence envisaged in the Code of Civil
Procedure. Strictly speaking, the trial court did not invoke the
provisions of Order X, Rule 2 CPC, while pronouncing the judgment.
Instead, it dismissed the suit on grounds of concealment of material
facts.
15. The argument urged by the counsel for the respondents
that the suit was actually dismissed by applying the provisions of
Order 7 Rule 11 (d) CPC, is fallacious. If such was the case, then the
trial court ought to have rejected the plaint and not dismissed the suit.
The clear distinction between `rejection of a plaint’ and `dismissal of a
suit’, cannot be lost sight of.
16. While passing the impugned judgment, the trial court lost
sight of the fact that the effect of dismissal of a suit is entirely
R.F.A. No.193/2000 Page 10 of 15
different and distinct from the effect of rejection of the plaint. In the
case of Inspiration Clothes & U. Vs. Colby International Ltd. reported
as 88 (2000) DLT 769, a Division Bench of this Court while
examining the order of a Single Judge, dismissing the suit of the
appellant therein, on an application preferred by the respondent under
Order 7 Rule 11 CPC holding that the suit was not maintainable as the
appellant did not have a cause of action, observed as below :
“Para 10: …Learned Single Judge fell in error in
placing reliance upon the material supplied by the
defendant, which alone is sufficient to set aside the
impugned order. Learned Single Judge instead of
proceeding to reject the plaint, dismissed the suit,
which approach is also erroneous. The effect of
dismissal of suit is altogether different and
distinct from the effect of rejection of the plaint.
In case plaint is rejected under Order 7 Rule 11,
CPC, filing of a fresh plaint in respect of the
same cause of action is specifically, permitted
under Rule 13 of Order 7, CPC. Altogether
different consequence follows in the event of
dismissal of suit, which has the effect of
precluding the plaintiff to file a fresh suit on the
same cause of action. Rejection of plaint takes
away the very basis of the suit rendering as if
there was no suit at all or that no suit was
instituted. Order of dismissal of suit while
recognizing the existence of a suit indicates its
termination. While deciding the application under
Order 7 Rule 11, CPC, learned Single Judge ought notR.F.A. No.193/2000 Page 11 of 15
and could not have dismissed the suit. Even in the
decision of the Supreme Court in T. Arvindandam’s
case (Supra) (AIR 1977 SC 2421) relied upon by
learned Counsel for the appellant, it was held that if
on a meaningful-not formal-reading of the plaint it is
manifestly vexatious and merit-less, in the sense of
not disclosing a clear right to sue, the Trial Court
should exercise his power under Order 7 Rule 11, CPC
taking care to see that the ground mentioned therein
is fulfilled. In order to fulfill that ground bare
allegation made in the plaint and documents filed
therewith were required to be looked into, which in
the instant case clearly disclosed at least a cause of
action against the defendant that defendant was liable
for damages for its acts of omission and commission.
It would be an altogether different situation that the
plaintiff might not ultimately succeed in obtaining a
decree against the defendant or that Court might
come to the conclusion that suit would not be
maintainable against the defendant and that plaintiff
had a cause of action only against defendant’s
principal and its parent unit in Hong Kong, but such
aspect could not have been gone into at this stage.
Three paragraphs of the plaint quoted above in our
view do clearly disclose cause of action for the plaintiff
to claim damages.” (emphasis added)
17. If the trial court was convinced that the plaint read as a
whole, did not disclose any cause of action and/or was barred by any
law, and was therefore liable to be rejected as vexatious or meritless,
the court ought to have exercised its powers Order 7 Rule 11 CPC.
Fact remains that a suit once instituted by a litigant, has to be
disposed of strictly as per the procedure prescribed in the Code and
R.F.A. No.193/2000 Page 12 of 15
not in a cursory or summary fashion. The plea of the respondents that
the suit of the appellant was barred by any law, could be considered
after having regard to the pleas taken in the plaint. In the present
case, the appellant having taken a categorical stand that the issue with
regard to return of her stridhan remained alive despite the decree of
dissolution of marriage dated 29.6.1995 of the US Court, the matter
required to be put to trial. The trial court was not justified in
determining the said question at the admission stage itself, and
dismissing the suit without affording an opportunity to the parties to
complete the pleadings, file documents in support of their stand and
without framing any issues.
18. If after framing of issues, including an issue with regard to
the maintainability of the suit, the court was of the opinion that no
evidence was required on certain issues, the said issues could have
been treated as preliminary issues and decided. It is not as if the suit
could not have been dismissed after the issues were framed, both on
law and facts and certain issues were treated as preliminary issues. At
that stage, the court would have had the benefit of looking carefully
R.F.A. No.193/2000 Page 13 of 15
into the defence of the defendants as well, and could well have upheld
their objections as to the maintainability of the suit.
19. For the aforesaid reasons, this Court is of the opinion that
the dismissal of the suit, preferred by the appellant, at the very
threshold, on the ground of `concealment of material facts’, without
affording any opportunity to the parties to complete the pleadings, file
documents and without framing any issues has caused grave injustice
to the appellant. The appropriate course in such circumstances would
have been to frame the issues and treat some of the issues as
preliminary issues which could be decided even without evidence,
instead of dismissing the suit in limine, without putting it to trial. If
such preliminary issues, as framed by the trial court, are ultimately
decided in favour of the respondents, the same would result in the
dismissal of the suit, which has entirely different consequences under
the provisions of Order 7 Rule 13 CPC, and would preclude the
appellant from filing a fresh suit on the same cause of action.
20. In view of the foregoing discussion, the appeal is allowed
and the impugned judgment dated 30.11.1999 is set aside. The suit
of the appellant is restored to the file of the trial court, for fresh
adjudication and disposal in accordance with law. After the pleadings
R.F.A. No.193/2000 Page 14 of 15
are completed between the parties and issues are framed, the trial
court shall be at liberty to treat certain issues as preliminary issues
and decide the same in accordance with law.
21. The trial court record be released forthwith. The parties are
directed to appear before the District Judge for further proceedings on
16th November, 2009, when the matter shall be directed to be placed
before the appropriate court for further proceedings. Considering the
fact that the suit is of the year 1999, the Trial Court is requested to try
the same as expeditiously as possible.
22. Parties are left to bear their own costs.
(HIMA KOHLI)
OCTOBER 29, 2009 JUDGE
sk
R.F.A. No.193/2000 Page 15 of 15