Menino Santana Fernandes vs Kenthony Fernandes

A.R. Joshi, J.—Heard rival submissions at length on this First Appeal preferred by the Appellant/original plaintiff challenging the order passed by the learned Ad-hoc District Judge, Fast Track-I, South Goa, Margao.

By consent of the parties the present appeal is taken up for final adjudication at the admission state itself and on that premise learned counsel were heard at length and the matter is taken up for final orders.

The impugned order was passed on the application preferred by original defendants no. 5 to 8 for rejection of the plaint as against them in view of Order VII Rule 11 of C.P.C. The impugned order reads thus:

(i) The application at Exhibit 63 filed by the defendants no. 5 to 8 stands allowed.

(ii) Consequently, the plaint stands rejected as against defendants no. 5 to 8.

The above order was passed on 28/1/2014. Being aggrieved by the said order, the present appeal is preferred by the original plaintiff.

Prior to going to the rival submissions it must be mentioned that apparently the Trial Court had held that the plaint had fallen in the clutches of Order VII Rule 11(a) of C.P.C. inasmuch as it does not disclose the cause of action as against defendants no. 5 to 8. Without much going into the details of the case as pleaded in the plaint in Civil Suit no. 57 of 2011 suffice it to say that the present plaintiff had purchased certain immovable properties (plots) out of some layout and there are some open spaces marked as per the Town Planning scheme. The original owners of the said plots were defendants no. 5 to 7 who are also the present respondents no. 5 to 7. Original defendant no. 8 is the developer who is also the present respondent no. 8. Original defendant no. 9 is the local Village Panchayat/public authority and which is also the respondent no. 9 in the present appeal. Original defendants no. 1 to 4 are the villagers so also they are the present respondents. So far as the Town Planning Authority is concerned it is the original defendant no. 14 so also it is respondent no. 14 in the present appeal.

The suit is filed in December 2011 by the plaintiff/present appellant. The Written Statement was filed jointly by the respondents no. 5 to 8 on 14/8/2012 and the issues were framed by the Trial Court on 21/7/2012. There are in all 10 issues framed out of which issue no. 2 reads thus:

Whether the plaintiff proves that the defendants no. 1 to 9 have erected goal posts in the said open space?

Issues no. 5, 6, 7 and 8 are issues as to whether the defendants no. 1 to 9 are liable for certain damages/costs to be payable to the plaintiff. Thereafter, the matter was posted for recording of the evidence and then an application was preferred under Order VII Rule 11 of C.P.C. by the defendants no. 5 to 8 on 22/8/2013.

The only question to determine in the present appeal is whether by plain reading the contents of the plaint and specially paragraphs 24 and 25 of the plaint, is it the case in which there is no disclosure of cause of action as against respondents no. 5 to 8 and also it is to be ascertained whether continuing of the suit as against these defendant would be an abortive proceeding and would unnecessary take the time of the Court. Apparently this is the mandate given by the Hon''ble Apex Court in I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and Others, This authority has been cited on behalf of the contesting respondents no. 5 to 8 mentioning that there is no cause of action arisen as against respondents no. 5 to 8 so as to proceed further with the suit. In the considered opinion of this Court the facts that are appearing in the citation are all together different and in the present matter it is to be established whether it would be an abortive process to proceed against defendants no. 5 to 8 in the suit.

Counter to the arguments on behalf of the respondents learned counsel for the appellant initially placed reliance on the following authorities:

(i) M/s. Crescent Petroleum Ltd. Vs. m.v. "MONCHEGORSK" and another, and anr.". Head Note "B" of the authority reads thus:

(B) Civil P.C. (5 of 1908), O.7 R.11 (a)-Scope-Dismissal of suit on ground of absence of cause of action-Power has to be exercised by Courts sparingly and cautiously-Benefit of doubt must go to plaintiff.

It is settled law that the plaint can be rejected as disclosing no cause of action if the Court finds that it is plain and obvious that the case put forward is unarguable. The phrase "does not disclose a cause of action" has to be very narrowly construed. Rejection of the plaint at the threshold entails very serious consequences for the plaintiff. This power has, therefore, to be used in exceptional circumstances. The court has to be absolutely sure that on a meaningful reading of the plaint it does not make out any case. The plaint can only be rejected where it does not disclose a cause of action or where the suit appears from the statements made in the plaint to be barred by any provision of the law. While exercising the power of rejecting the plaint, the Court has to act with utmost caution. This power ought to be used only when the Court is absolutely sure that the plaintiff does not have an arguable case at all. The exercise of this power though rising in civil procedure, can be said to belong to the realm of criminal jurisprudence and any benefit of the doubt must go to the plaintiff, whose plaint is to be branded as an abuse of the process of the Court. This jurisdiction ought to be very sparingly exercised and only in very exceptional cases. The exercise of this power would not be justified merely because the story told in the pleadings was highly improbable or which may be difficult to believe.

(ii) State of Orissa Vs. Klockner and Company and Others, Head Note (B) of this authority reads thus:

(B) Civil P.C. (5 of 1908) O.7, R.11 (a)-Rejection of plaint-Validity-Case of the applicant is that plaintiff has no cause of action-Applicant specifically not pleading that plaint does not disclose any cause of action-Court not maintaining distinction between plea that there was no cause of action for suit and plea that plaint does not disclose cause of action and rejecting plaint-Rejection is not proper.

(iii) Mayar (H.K.) Ltd. and Others Vs. Owners and Parties, Vessel M.V. Fortune Express and Others,

Under Order VII Rule 11 of the Code, the Court has jurisdiction to reject the plaint where it does not disclose a cause of action, where the relief claimed is undervalued and the valuation is not corrected within a time as fixed by the Court, where insufficient court fee is paid and the additional court fee is not supplied within the period given by the Court, and where the suit appears from the statement in the plaint to be barred by any law. Rejection of the plaint in exercise of the powers under Order VII Rule 11 of the Code would be on consideration of the principles laid down by this Court. In T. Arivandandam Vs. T.V. Satyapal and Another, this Court has held 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, the Court should exercise its power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. In Roop Lal Sathi Vs. Nachhattar Singh, this Court has held that where the plaint discloses no cause of action, it is obligatory upon the court to reject the plaint as a whole under Order VII Rule 11 of the Code, but the rule does not justify the rejection of any particular portion of a plaint. Therefore, the High Court could not act under 10. Order VII Rule 11(a) of the Code for striking down certain paragraphs nor the High Court could act under Order VI Rule 16 to strike out the paragraphs in absence of anything to show that the averments in those paragraphs are either unnecessary, frivolous or vexatious, or that they are such as may tend to prejudice, embarrass or delay the fair trial of the case, or constitute an abuse of the process of the court. In I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and Others, it was held that the basic question to be decided while dealing with an application filed by the defendant under Order VII Rule 11 of the Code is to find out whether the real cause of action has been set out in the plaint or something illusory has been projected in the plaint with a view to get out of the said provision. In Saleem Bhai and Others Vs. State of Maharashtra and Others, this Court has held that the trial court can exercise its powers under Order VII Rule 11 of the Code 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 and for the said purpose the averments in the plaint are germane and the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. In Popat and Kotecha Property Vs. State Bank of India Staff Association, this Court has culled out the legal ambit of Rule 11 of Order VII of the Code in these words :

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 of 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 of 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.

By pointing out the first authority learned counsel for the appellant stated that the contents of the plaint as a whole are required to be construed and if on face of the averments the cause of a action has arisen as against a particular defendant then the suit must proceed. It is altogether different thing, he further argued that whether the plaintiff can establish and prove the said cause of action. But that is to be done at the end of the trial and not at the threshold when there is a question of rejection of the plaint under Order VII Rule 11.

In view of the ratio propounded by the above authority if the entire contents of the plaint are gone through specially paragraphs 24 and 25 and in the light of the written statement filed on behalf of the defendants no. 5 to 8, it must be ascertained that there are averments against the present respondents no. 5 to 8 who are responsible for the use of the open space in the layout. This is more-so when it is brought to the notice during the arguments by the learned counsel for the appellant that in another writ petition no. 496/2013 filed before this Court an Affidavit is sworn by respondent no. 9 the Public Authority/Panchayat to the effect that the playground which is claimed to be an open space was not yet transferred in the name of respondent no. 9. The said affidavit is of the date 27/9/2013. Whereas according to respondents no. 5 to 8 they have already transferred the interest of the said open space in the name of local authority way back prior to 2004. By pointing out this factual position, it is strongly submitted on behalf of the appellant that definitely it is required to be tried by the Special Court as to the role of defendants no. 5 to 8 in the suit when they specifically came with a plea that they have nothing to do with the open space and it is vested with the public authority. Whereas, the public authority has come with a plea that vesting of the open space with it is mistakenly mentioned in the written statement filed in the present suit. In order to appreciate this argument now paragraph 7 of the said Affidavit is of importance though reading of the said contents in the present matter is objected on behalf of respondents no. 5 to 8. Paragraph 7 reads thus:

I say that the said play ground which is claimed to be an open space, is not yet transferred to the name of the Respondent no. 9 and though it was mistakenly stated in the Written Statement that the land has been transferred to the Panchayat, the same is not true.

Definitely the import of the provisions of Order VII Rule 11 is to be viewed with great caution and it is to be used sparingly and the benefit must got to the plaintiff as is endorsed by this Court in AIR 2000 Bombay 161 (supra). Lastly, the learned counsel for the respondents no. 5 to 9 placed reliance on the authority Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and Others, in case of "Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others". This authority relied on is to emphasize that even the mandate of Order 6 Rule 2 has not been obeyed in the present case when the plaint was drafted and much is argued on material facts and particulars and the relative scope. Certain observations in the said authority which are in fact observed. There are other matters, which were relied in the case of M/s. Raptakos Brett and Co. Ltd. Vs. Ganesh Property, relied on Order 6 Rule 2(1) of the CPC states the basic and cardinal rule of pleadings 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 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.

It cannot be lost sight by the appellant that what is challenged in the present case is the order as to no cause of action at all as against respondents no. 5 to 8. By any stretch of imagination it cannot be accepted that there was not at all any cause of action arisen against defendants no. 5 to 8 and more so considering the inconsistent stand taken by the public authority i.e. respondent no. 9/panchayat. Needless to mention that proof or otherwise of such averment is a different question but there is nothing to accept that there is no cause of action pleaded against any of the respondents no. 5 to 8. In the result the present appeal is allowed. The impugned order is quashed and set aside. No order as to costs.