Mehtabi vs Ghulam Mohammad Sheikh And Others

A suit for permanent prohibitory injunction has been filed by respondent no.1 before the court of Special Mobile Magistrate (Sub Judge) Baramulla

(for short “Trial Courtâ€). Petitioner appeared before Trial Court and filed an application under Order VII Rule 11 of the Code of Civil Procedure

to dismiss above suit of respondent no.1. Trial Court vide order dated 9th May 2018, dismissed application of petitioner. It is this order of which

petitioner is aggrieved and seeks setting-aside thereof on the grounds mentioned in Civil Revision on hand.

I have heard learned counsel for parties and considered the matter.

Mr N. H. Shah, learned appearing counsel for petitioner, has stated that Trial Court has erred in passing impugned order as it has been said by the

Trial Court in impugned order that subsequent event cannot be taken into consideration for dismissing a suit under provisions of Order VII Rule 11

CPC. According to him whenever there is any subsequent event after institution of a civil suit, it becomes infructuous and is to be rejected, but this

aspect of the matter has not been taken note of by Trial Court.

Per contra, learned counsel for respondents states that law is very much clear on the point that when a plaint does not comply with provisions of

Order VII Rule 11 CPC, an application for its rejection lies, but if any subsequent event occurs during pendency of a suit, no application under Order

VII Rule 11 lies.

In view of case set up and submissions made by learned counsel for parties, it would be appropriate to have a closer look on Order VII Rule 11

CPC, which is reproduced hereunder:

“11. Rejection of plaint.- The plaint shall be rejected in the following cases:â€

(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 claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the

court to supply the requisite 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…..â€​

Bare perusal of provisions of Order VII Rule 11 CPC provide that a plaint can be rejected if it does not disclose a cause of action; or relief claimed

in undervalued; or plaint is insufficiently stamped; or suit is barred by any law. After saying this, it would be appropriate to have glance of application

filed by petitioner before Trial Court under the provisions of Order 7 Rule 11 CPC, seeking dismissal of plaint. In that it has been averred by petitioner

that during pendency of suit, plaintiff sold subject matter of suit by virtue of a sale deed on 28th May 2015 and delivered possession thereof to

purchaser and therefore, plaintiff is not in possession of suit property. On this count, petitioner sought dismissal of suit under Order 7 Rule 11 CPC.

It may not be out of place to mention here term cause of action refers to a set of facts or allegations that make up the grounds for filing a suit. A

cause of action is, therefore, by its very nature essential to a civil suit as without a cause of action a civil suit cannot arise. The question now arises

how important exactly is a cause of action? The term cause of action is mentioned in the Civil Procedure Code, in various places. The first such

instance is in Order I Rule 8 CPC, where in the explanation it is written that the parties being represented in the suit need not have the same cause of

action as the person they are being represented by. The fact that a cause of action is essential to a suit is represented in Order II Rule 2 of the Code

wherein it is stated that a plaint must mention the cause of action if it is to be instituted as a suit. Order VII Rule 1 reaffirms the same. Thus, it can be

seen from the beginning that not only is a cause of action, an important part of the civil suit but is in essence the reason that the civil suit exists in the

first place. Any claim that is made in the suit flows from the cause of action, and as is stated by the above-mentioned part of the Code the claims

made must be with respect to the cause of action from whence they arise.

To pursue a cause of action, a plaintiff pleads or alleges facts in a plaint, the pleading that initiates a lawsuit. A cause of action is said to consist of

two parts, legal theory (the legal wrong the plaintiff claims to have suffered) and the remedy (the relief a court is asked to grant). Sometimes cases

arise where the facts or circumstances create multiple causes of action. There are a number of specific causes of action, including: contract-based

actions; statutory causes of action; torts such as assault, battery, invasion of privacy, fraud, slander, negligence, intentional infliction of emotional

distress; and suits in equity such as unjust enrichment and quantum meruit. To win a case, plaintiff must prove the major legal points of the case lie in

his favour; these are called the “elements†of that cause of action. For example, for a claim of negligence, the elements are: the (existence of a)

duty, breach (of that duty), proximate cause (by that breach), and damages. If a plaint does not allege facts sufficient to support every element of a

claim, the court, upon motion by the opposing party, may dismiss the plaint for failure to state a claim for which relief can be granted. It may be

mentioned here that the first Order containing the term cause of action is Order II Rule 2. The object of Order II Rule 2 is to prevent multiplicity of

suits. The Rule applies not only to relief claimed in plaint but also to claims in the form of set off. The test for raising objection under the Rule is that

whether the claim made in the subsequent suit could have been made in the earlier suit or not. The cause of action must be same for application of the

rule. Cause of action means a bundle of material facts which it is necessary for the plaintiff to prove in order to get relief in the suit. But it does not

comprise every piece of evidence which is necessary to produce in order to prove such material facts.

In the present case, perusal of impugned order reveals that Trial Court has rightly observed that a plaint can be rejected for non-disclosure of cause

of action, but it cannot be rejected under Order VII Rule 11 CPC on the ground of subsequent event having taken place. In that view of matter,

impugned order does not warrant any interference and as a corollary thereof revision petition on hand is liable to be dismissed.

For the reasons discussed above, revision petition is without any merit and is, accordingly, dismissed with connected CM(s). Interim direction, if

any, shall stand vacated.

Copy of this order be sent down.