advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Monday, May 30, 2016

omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. Order VII Rule 11 of the Code of Civil Procedure 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 real object of Order VII Rule 11 of the Code of Civil Procedure is to keep out of courts irresponsible law suits and in case Court is prima facie persuaded of the view that the suit is an abuse of the process of the court, in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order VII Rule 11 of the Code of Civil Procedure can be exercised."

CASE NO.:
Appeal (civil)  448 of 2004

PETITIONER:
Sopan Sukhdeo Sable & Ors.

RESPONDENT:
Assistant Charity Commissioner & Ors.

DATE OF JUDGMENT: 23/01/2004

BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:
J U D G M E N T
(Arising out of SLP (Civil) No. 20366/2002)




ARIJIT PASAYAT,J




Leave granted.


The appellants who were plaintiffs in a suit filed
before the learned Civil Judge, Senior Division, Srirampur
have questioned legality of the conclusions arrived at by
the Courts below holding that the plaint filed by them was
to be rejected in terms of Order VII Rule 11 of the Code of
Civil Procedure, 1908 (in short the 'Code'). The plaintiffs
claimed to be tenants under respondent No.2, Shaneshwar
Deosthan Trust (hereinafter referred to as the 'trust'). Its
trustees and the Assistant Charity Commissioner (in short
the 'Commissioner') were the other defendants. Plaintiffs
claimed that they were tenants of the trust of which the
defendants Nos. 3 to 13 were the trustees. Alleging that
they have been forcibly evicted notwithstanding continuance
of the tenancy, the suit was filed for the following
reliefs:

A) Plaintiff no. 1 to 17, be declared as the
tenants of the properties described in the
plaint belonging to temple Trust, of which
defendant No.2 to 13 are trustees.

B) Defendant No.1 to 13, be permanently
restrained by an order of injunction not to
evict plaintiff No.1 to 13, forcibly with
the help of police and also not to
interfere in their business being carried on
by them in suit shops, and not to interfere
in the possession of suit shops in any
manner-whatsoever, either by themselves or
by their servants, agents, relatives or
anybody claiming through or under them.

C) Direct the defendant No. 2 to 13, to
pay compensation for the loss caused to the
plaintiffs on account of their acts of
omission and commission as described in the
plaint, committed by them prior to the
filing of the suit and during pendency of
suit for the damage that may be caused to
the plaintiffs.

D) Defendant No.1 be directed to enquire
into the illegal acts, committed by
defendant No.2 to 13, and issue appropriate
direction to that effect.    


The suit was numbered as R.C.S. No.160/1997 in the
trial Court. The stand of the plaintiffs-appellants
essentially was that the tenancy was for a period of 11
years and not for 11 months as claimed by the trust. An
application was filed by the trust raising a preliminary
plea that the plaint is liable to be rejected under Order
VII Rule 11 of the Code. With reference to Section 80 of the
Bombay Public Trusts Act, 1950 (in short the 'Act') it was
urged that no Civil court had jurisdiction to decide or deal
with any question which by or under the Act is to be decided
or dealt with by any officer or authority under the Act and
in respect of which the decision or order of such officer or
authority has been made final and conclusive. The trial
Judge framed two preliminary issues, i.e. (a) whether the
suit was liable to be rejected under Order VII Rule 11 of
the Code for want of cause of action, and (b) whether the
suit was tenable against all the defendants. Findings in
respect of the preliminary issues were recorded against the
plaintiffs. A finding was recorded that the plaint does not
disclose any cause of action and also in view of the
specific provisions of the Act, the jurisdiction vests only
with the District Court to give direction to Commissioner
and in any event Section 80 of the Act took away
jurisdiction of the Civil Court and the plaint was rejected.
Challenging the judgment and decree dated 21.10.2000 passed
by the learned Civil Judge, Senior Division, Srirampur, an
appeal was preferred before the District Court which was
numbered as Regular Civil Appeal No.178 of 2000. The appeal
was dismissed and the decree passed by the trial Court was
confirmed by II Additional District Judge at Srirampur,
Ahmed Nagar District. The matter was carried in Second
Appeal before the High Court which by the impugned judgment
upheld the findings recorded by the Courts below. Before the
High Court, it was contended by the appellants that Sections
50, 51 and 80 of the Act had no application and the lease
being for 11 years, the action of the trust in dispossessing
the plaintiffs forcibly cannot have the approval of law. The
stand of the trust was to the effect that the plaintiffs
have not approached the Court with clean hands. They had
tried to get relief from the High Court by filing a petition
under Article 226 of the Constitution of India, 1950 (in
short the 'Constitution'). They failed to comply with the
interim directions given by the High Court and before the
date posted before the High Court for consideration of the
interim orders, they filed the suit and prayed for
injunction. Subsequently, the writ petition was withdrawn.
The plaint filed by the plaintiffs did not disclose any
cause of action and in any event the relief sought for could
not have been granted by the Civil Court in view of the
specific provisions contained in Sections 50, 51 and 80 of
the Act. There was no forcible dispossession as claimed. The
Courts below were justified in rejecting the plaint.

 The High Court accepted the plea of the trust and
dismissed the second appeal affirming the conclusions
arrived by the Courts below.

In support of the appeal, Mr. V.A. Mohta, learned
senior counsel appearing for the appellants submitted that
the Courts below have lost sight of the nuances of Order VII
Rule 11 of the Code. Even if for the sake of arguments it is
conceded that some reliefs were to be dealt with by the
authorities under the Act, the reliefs were severable and
the Civil Court had jurisdiction to deal with them. The
dispute projected in the suit essentially related to the
question of tenancy and the relationship between the
plaintiffs and the defendant-trust vis-`-vis the question of
tenancy, the term of tenancy are matters intermittently
linked with these basic issues. Such issues cannot be
decided by the authorities under the Act. Therefore, the
rejection of the plaint under Order VII Rule 11 of the Code
cannot be maintained in law. The plaintiffs were
dispossessed illegally and a person dispossessed illegally
was entitled to protection. A person without title but in
'settled' possession as against mere fugitive possession,
can get back possession if forcibly dispossessed or rather
if dispossessed otherwise than by due process of law.

Per contra, Mr. A.V. Savant, learned senior counsel
appearing for the defendant-trust submitted that the Courts
below have concurrently found it as a matter of fact that
the plaint did not disclose a cause of action and the Civil
Court had no jurisdiction to deal with a matter,
specifically in view of what has been statutorily provided
in Section 80 of the Act. With reference to the judgment of
the High court it was pointed out that the plaintiffs had
not approached the Court with clean hands. They had adopted
dubious methods, did not comply with the directions of the
High Court for depositing the stipulated amount. By a ruse,
some reliefs have been sought for in the plaint totally out
of context with the main prayers which are to be dealt with
in terms of Sections 50 and 51 of the Act. There were no
pleadings about alleged forcible dis-possession and wholly
untenable plea about the period of tenancy has been rightly
rejected by the Courts below. Clauses (a) and (d) of Rule 11
have full application to the facts of the case. The whole
purpose in filing the suit was to somehow or other remains
in possession of the shops which were leased out to them for
certain periods. As a result of the actions of the
plaintiffs, the trust would have been put to huge financial
loss. All this according to him, disentitle the appellants
from any relief under Article 136 of the Constitution.

Order VII Rule 11 of the Code reads as follows:

Order VII Rule 11: Rejection of plaint.
The plaint shall be rejected in the
following cases :-

(a) where it does not disclose a cause of
action;

(b) where the relief claimed is
undervalued, and the plaintiff, on being
required by the Court to correct the
valuation within a time to be fixed by the
court, fails to do so;

(c) where the relief claims is properly
valued but the plaint is written upon paper
insufficiently stamped, and the plaintiff,
on being required by the Court to supply the
requisite stamp-paper within a time to be
fixed by the Court, fails to do so;

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

(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply
with the provisions of rule 9.

Provided that the time fixed by the
Court for the correction of the valuation or
supplying of the requisite stamp-paper shall
not be extended unless the Court, for
reasons to be recorded, is satisfied that
the plaintiff was prevented by any cause of
an exceptional nature for correcting the
valuation or supplying the requisite stamp-
paper, as the case may be, within the time
fixed by the Court and that refusal to
extend such time would cause grave injustice
to the plaintiff."          


In the present case the respondent-trust has relied
upon clauses (a) and (d) of Rule 11.

Before dealing with the factual scenario, the spectrum
of Order VII Rule 11 in the legal ambit needs to be noted.

In Saleem Bhai and Ors. v. State of Maharashtra and
Ors. (2003 (1) SCC 557) it was held with reference to Order
VII Rule 11 of the Code that the relevant facts which need
to be looked into for deciding an application thereunder are
the averments in the plaint. The trial Court can exercise
the power at any stage of the suit - before registering the
plaint or after issuing summons to the defendant at any time
before the conclusion of the trial. For the purposes of
deciding an application under clauses (a) and (d) of Order
VII Rule 11 of the Code, the averments in the plaint are the
germane; the pleas taken by the defendant in the written
statement would be wholly irrelevant at that stage.

In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal and
Ors. (1998 (2) SCC 70) it was held that the basic question
to be decided while dealing with an application filed under
Order VII Rule 11 of the Code 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 out of Order VII
Rule 11 of the Code.

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
VII Rule 11 of the Code taking care to see that the ground
mentioned therein is fulfilled. If clever drafting has
created the illusion of a cause of action, it has to be
nipped in the bud at the first hearing by examining the
party searchingly under Order X of the Code. (See T.
Arivandandam v. T.V. Satyapal and Anr. (1977 (4) SCC 467)

It is trite law that not any particular plea has to be
considered, and the whole plaint has to be read. As was
observed by this Court in Roop Lal Sathi v. Nachhattar Singh
Gill (1982 (3) SCC 487), only a part of the plaint cannot be
rejected and if no cause of action is disclosed, the plaint
as a whole must be rejected.

In Raptakos Brett & Co.Ltd. v. Ganesh Property (1998
(7) SCC 184) it was observed that the averments in the
plaint as a whole have to be seen to find out whether clause
(d) of Rule 11 of Order VII was applicable.

There cannot be any compartmentalization, dissection,
segregation and inversions of the language of various
paragraphs in the plaint. If such a course is adopted it
would run counter to the cardinal canon of interpretation
according to which a pleading has to be read as a whole to
ascertain its true import. It is not permissible to cull out
a sentence or a passage and to read it out of the context in
isolation. Although it is the substance and not merely the
form that has to be looked into, the pleading has to be
construed as it stands without addition or subtraction or
words or change of its apparent grammatical sense. The
intention of the party concerned is to be gathered primarily
from the tenor and terms of his pleadings taken as a whole.
At the same time it should be borne in mind that no pedantic
approach should be adopted to defeat justice on hair-
splitting technicalities.

Submission of learned counsel for respondent No.2-
trust was that requirement of law being reading the plaint
in its totality, the appellants cannot take the plea that
they would give up or relinquish some of the reliefs sought
for. That would not be permissible. The plea clearly
overlooks the basic distinction between statements of the
facts disclosing cause of action and the reliefs sought for.
The reliefs claimed do not constitute the cause of action.
On the contrary, they constitute the entitlement, if any, on
the basis of pleaded facts. As indicated above, Order VI
Rule 2 requires that pleadings shall contain and contain
only a statement in a concise form of the material facts on
which the party pleading relies for his claim. If the plea
of Mr. Savant, learned counsel for the respondent-trust is
accepted the distinction between the statement of material
facts and the reliance on them for the claim shall be
obliterated. What is required in law is not the piecemeal
reading of the plaint but in its entirety. Whether the
reliefs would be granted on the pleaded facts and the
evidence adduced is totally different from the relief
claimed. All the reliefs claimed may not be allowed to a
party on the pleadings and the evidence adduced. Whether
part of the relief cannot be granted by the Civil Court is a
different matter from saying that because of a combined
claim of reliefs the jurisdiction is ousted or no cause of
action is disclosed. Considering the reliefs claimed vis-a-
vis the pleadings would not mean compartmentalization or
segregation, in that sense. The plea raised by the
respondent-trust is therefore clearly unacceptable.

Keeping in view the aforesaid principles the reliefs
sought for in the suit as quoted supra have to be
considered. The real object of Order VII Rule 11 of the Code
is to keep out of courts irresponsible law suits. Therefore,
the Order X of the Code is a tool in the hands of the Courts
by resorting to which and by searching examination of the
party in case the Court is prima facie of the view that the
suit is an abuse of the process of the court in the sense
that it is a bogus and irresponsible litigation, the
jurisdiction under Order VII Rule 11 of the Code can be
exercised.

As noted supra, the Order VII Rule 11 does not justify
rejection of any particular portion of the plaint. Order VI
Rule 16 of the Code is relevant in this regard. It deals
with 'striking out pleadings'. It has three clauses
permitting the Court at any stage of the proceeding to
strike out or amend any matter in any pleading i.e. (a)
which may be unnecessary, scandalous, frivolous or
vexatious, or, (b) which may tend to prejudice, embarrass or
delay the fair trial of the suit, or, (c) which is otherwise
an abuse of the process of the Court.

Order VI Rule 2(1) of the Code states the basic and
cardinal rule of pleadings and declares that the pleading
has to state material facts and not the evidence. It
mandates that every pleading shall contain, and contain
only, a statement in a concise form of the material facts on
which the party pleading relies for his claim or defence, as
the case may be, but not the evidence by which they are to
be proved.

There is distinction between 'material facts' and
'particulars'. The words 'material facts' show that the
facts necessary to formulate a complete cause of action
must be stated. Omission of a single material fact leads to
an incomplete cause of action and the statement or plaint
becomes bad. The distinction which has been made between
'material facts' and 'particulars' was brought by Scott,
L.J. in Bruce v. Odhams Press Ltd. (1936) 1 KB 697 in the
following passage :
The cardinal provision in Rule 4 is that the
statement of claim must state the material
facts. The word "material" means necessary
for the purpose of formulating a complete
cause of action; and if any one "material"
statement is omitted, the statement of claim
is bad; it is "demurrable" in the old
phraseology, and in the new is liable to be
"struck out" under R.S.C. Order XXV, Rule 4
(see Philipps v. Philipps ((1878) 4 QBD
127)); or "a further and better statement of
claim" may be ordered under Rule 7.
The function of "particulars" under Rule 6
is quite different. They are not to be used
in order to fill material gaps in a
demurrable statement of claim - gaps which
ought to have been filled by appropriate
statements of the various material facts
which together constitute the plaintiff's
cause of action. The use of particulars is
intended to meet a further and quite
separate requirement of pleading, imposed in
fairness and justice to the defendant. Their
function is to fill in the picture of the
plaintiff's cause of action with information
sufficiently detailed to put the defendant
on his guard as to the case he had to meet
and to enable him to prepare for trial.

The dictum of Scott, L.J. in Bruce case (supra) has been
quoted with approval by this Court in Samant N. Balkrishna
v. George Fernandez (1969 (3) SCC 238), and the distinction
between "material facts" and "particulars" was brought
out in the following terms:
The word 'material' shows that the facts
necessary to formulate a complete cause of
action must be stated. Omission of a single
material fact leads to an incomplete cause
of action and the statement of claim becomes
bad. The function of particulars is to
present as full a picture of the cause of
action with such further information in
detail as to make the opposite party
understand the case he will have to meet.

Rule 11 of Order VII lays down an independent remedy made
available to the defendant to challenge the maintainability
of the suit itself, irrespective of his right to contest the
same on merits. The law ostensibly does not contemplate at
any stage when the objections can be raised, and also does
not say in express terms about the filing of a written
statement. Instead, the word 'shall' is used clearly
implying thereby that it casts a duty on the Court to
perform its obligations in rejecting the plaint when the
same is hit by any of the infirmities provided in the four
clauses of Rule 11, even without intervention of the
defendant. In any event, rejection of the plaint under Rule
11 does not preclude the plaintiffs from presenting a fresh
plaint in terms of Rule 13.

According to Mr. Mohta appearing for the appellants, as
noted above, the reliefs are separable and merely because
some of the reliefs cannot be granted by the Civil Court it
would entail an automatic rejection of the old plaint. In
fact he submitted that some of the reliefs would be given up
by the plaintiffs in the suit itself. It is true as
contended by Mr. Savant learned counsel appearing for the
respondent-trust by ingenious drafting a cause of action in
the nature of red herrings cannot be brought into judicial
arena. But a reading of the reliefs shows that some of them
can only be considered by the Civil Court.

Under Order II Rule 1 of the Code which contains
provisions of mandatory nature, the requirement is that the
plaintiffs are duty bound to claim the entire relief. The
suit has to be so framed as to afford ground for final
decision upon the subjects in dispute and to prevent further
litigation concerning them. Rule 2 further enjoins on the
plaintiff to include the whole of the claim which the
plaintiff is entitled to make in respect of the cause of
action. If the plaintiff omits to sue or intentionally
relinquishes any portion of his claim, it is not permissible
for him to sue in respect of the portion so omitted or
relinguished afterwards. If the plaintiffs as contended by
Mr. Mohta want to relinquish some reliefs prayer in that
regard shall be done before the trial Court. A reading of
the plaint and the reliefs along with the contents of the
plaint goes to show that the main dispute relates to the
question of continuance of tenancy and the period of
tenancy. They are in essence unrelated with the other
reliefs regarding enquiry into the affairs of the trust.
Such enquiries can only be undertaken under Section 50 of
the Act. For instituting the suit of the nature specified in
Section 50, prior consent of the Charity Commissioner is
necessary under Section 51. To that extent Mr. Savant is
right that the reliefs relatable to Section 50 would require
a prior consent in terms of Section 51. If the plaintiffs
give up those reliefs claimed in accordance with law, the
question would be whether a cause of action for the residual
claims/reliefs warrant continuance of the suit. The nature
of the dispute is to be resolved by the Civil Court. The
question of tenancy cannot be decided under Section 50 of
the Act. Section 51 is applicable only to suits which are
filed by a person having interest in the trust. A tenant of
the trust does not fall within the category of a person
having an interest in the trust.  Except relief in Para D of
the plaint, the other reliefs could be claimed before and
can be considered and adjudicated by the Civil Courts and
the bar or impediment in Sections 50 and 51 of the Act will
have no relevance or application to the other reliefs. That
being so, Sections 50 and 51 of the Act would not have any
application to that part of the relief which relates to
question of tenancy, the term of tenancy and the period of
tenancy. The inevitable conclusion therefore is that Courts
below were not justified in directing rejection of the
plaint. However, the adjudication in the suit would be
restricted to the question of tenancy, terms of tenancy and
the period of tenancy only. For the rest of the reliefs, the
plaintiffs shall be permitted within a month from today to
make such application as warranted in law for relinquishing
and/or giving up claim for other reliefs.

Another plea which has been raised with some amount of
vehemence by the appellant is the alleged forcible
possession. This plea is strongly disputed by learned
counsel for the respondent-trust who says that the
possession was taken in accordance with law and as noted
above, by voluntary surrendering by most of the tenants.
Much of this controversy revolves from the date till the
order of injunction passed by the trial Court operated.

There are two different sets of principles which have
to be borne in mind regarding course to be adopted in case
of forcible dispossession. Taking up the first aspect, it is
true that where a person is in settled possession of
property, even on the assumption that he has no right to
remain in property, he cannot be disposed by the owner
except by recourse of law.  This principle is laid down in
Section 6 of the Specific Relief Act, 1963. That Section
says that if any person is dispossessed without his consent
from immovable property other wise than in due course of
law, he or any person claiming through him may, by suit,
recover possession thereof, notwithstanding any other title
that may be set up in such suit. That a person without title
but in "settled" possession as against mere fugitive
possession can get back possession if forcibly
dispossessed or rather, if dispossessed otherwise than by
due process of law, has been laid down in several cases.  It
was so held by this Court in Yashwant Singh v. Jagdish Singh
(AIR 1968 SC 620), Krishna Ram Mohate v. Mrs. Shobha Venkata
Rao, (1989 (4) SCC 131,at p.136), Ram Rattan v. State of
U.P. (1977 (1) SCC 188), and State of U.P. v. Maharaja
Dharmender Prasad Singh (1989 (2) SCC 505). The leading
decision quoted in these rulings is the decision of the
Bombay High Court in K.K. Verma v. Union of India (AIR 1954
Bom. 358).

Now the other aspect of the matter needs to be noted.
Assuming a trespasser ousted can seek restoration of
possession under Section 6 of the Specific Relief Act, 1963
can the trespasser seek injunction against the true owner?
This question does not entirely depend upon Section 6 of the
Specific Relief Act, but mainly depends upon certain general
principles applicable to the law of injunctions and as to
the scope of the exercise of discretion while granting
injunction? In Mahadeo Savlaram Sheike v. Pune Municipal
Corporation (1995 (3) SCC 33), it was held, after referring
to Woodrofe on "Law relating to injunction; L.C. Goyal 'Law
of injunctions; David Bean 'Injunction' Jayce on Injunctions
and other leading Articles on the subject that the appellant
who was a trespasser in possession could not seek injunction
against the true owner. In that context this Court quoted
Shiv Kumar Chadha v. MCD (1993 (3) SCC 161) wherein it was
observed that injunction is discretionary and that:

"Judicial proceedings cannot be used
to protect or to perpetuate a wrong
committed by a person who approaches the
Court".

Reference was also made to Dalpat Kumar v. Prahlad
Singh (1992 (1) SCC 719) in regard to the meaning of the
words 'prima facie case' and 'balance of convenience' and
observed in Mahadeo's case (supra) that:

"It is settled law that no injunction
could be granted against the owner at the
instance of a person in unlawful
possession."            

The question of forcible possession as claimed is also
a matter which can be pressed into service by the parties
before the trial Court and if raised the Court shall deal
with it considering its relevance to the suit and accept it
or otherwise reject the plea in accordance with law. We do
not think it necessary to express any opinion in that
regard.
 
Learned counsel for the respondent-trust has urged with
some amount of vehemence about the conduct of the plaintiffs
in not depositing the arrears of money and the effect of 22
of the tenants out of total 44 tenants surrendering
possession. This is a matter which can be considered in the
trial itself so far as it is relevant. It was submitted by
learned counsel for the trust that in any event the District
Court was the only Court having jurisdiction and not the
Court where the suit was filed. This aspect does not appear
to have been specifically urged before the Courts below. So
we do not think it appropriate to express our opinion
thereon.  As regards the question of arrears it shall be
open to the respondent-trust to move the trial Court for
such directions as are available in law. Looking into the
nature of dispute it would be appropriate if the trial Court
makes an effort to complete the trial within six months from
the date of the judgment. The parties are directed to
cooperate for disposal of the suit early within the
stipulated time. The appeal is allowed to the extent
indicated without any order as to costs.







No comments:

Post a Comment

Note: Only a member of this blog may post a comment.