Mohammad Syed Reshi vs Ellaquai Dehati Bank And Another

Challenge is thrown to Order dated 4th August 2018, passed by Principal District Judge, Anantnag (“Trial Court†for short) in a civil suit titled

Ellaquai Dehati Bank and another v. Mohammad Syed Reshi, on the grounds made mention of in Civil Revision on hand.

Heard and considered.

A civil suit Ellaquai Dehati Bank and another v. Mohammad Syed Reshi, has been filed by respondents before Trial Court, mentioning therein that

petitioner herein has committed serious acts of omission and commission in recommending sanctioning, creating and disbursing loan cases of Y. K.

Pora Branch of the Bank. On the basis of case set up in civil suit, respondent-Bank has prayed for recovery of Rs.90,18,653/- along with interest from

petitioner.

An application was filed by defendant â€" petitioner herein, under Order VII Rule 11 of the Code of Civil Procedure before Trial Court, seeking

rejection of plaint for want of disclosure of cause of action against petitioner. Objections thereto were filed by respondent-Bank. By impugned order

dated 4th August 2018, application came to be dismissed. It is this order, of which petitioner is aggrieved and seeks setting-aside thereof, on the

grounds: that Trial Court has failed to appreciate that the plaint filed by respondent-Bank does not disclose any real cause of action against petitioner;

that respondent-Bank had lent/advanced money to different borrowers, but plaint does not disclose a single fact by which it is elucidated that money

lent to different borrowers has been appropriated/used or misappropriated by petitioner; that the course of action available to respondent-Bank was to

initiate due recovery process against borrowers/beneficiaries involved, who are stated to be recipients of bank’s money; that plaint does not at all

reveal that the petitioner has been unjustly benefitted or unjustly enriched from above loans advanced by the bank and to this extent civil suit of

respondent-Bank is silent; that plaint reveals vague reference to allegations of misappropriation by petitioner; that plaint nowhere substantiates the

factum of misappropriation; that respondents in order to create an illusion of cause of action have intentionally resorted to a jugglery of words so as to

cloak imaginary/illusionary cause in favour of bank; that respondents were mandatorily required under Order VI Rule 4 CPC, to spell out description

and details of any alleged misappropriation; that real beneficiaries of loan transaction feature nowhere in plaint; that it is alleged in the plaint that

petitioner was purportedly involved in acts of negligence, but it is not stated therein whether purported negligence of petitioner has been quantified and

what were standards by which such negligence can be quantified; that plaint does not disclose the damage which has ensued to the Bank on account

of unbecoming acts of petitioner; that plaint does not disclose as to in which legal capacity/legal relationship the Bank is seeking relief of recovery

from petitioner; that plaint does not even disclose whether petitioner was under any contractual obligation to indemnify for loss if any caused to

plaintiff on account of acts which have been committed by him; that debts for which recovery is sought from defendant are owned by the Bank as

against loans; that if recovery is allowed from petitioner, it would leave him in a bizarre legal situation as thereafter he could not seek any

reimbursement from bank’s borrowers; that paragraph 9 of plaint is unambiguously clear that departmental enquiry was constituted on 31st may

2016 and process was underway; that Trial Court has put the fact into oblivion that in order to adjudicate upon application under Order VII Rule 11

CPC, only germane document is plaint itself, but Trial Court heavily relied upon pleadings of respondent-Bank, made in the objections by respondent-

Bank in opposition to application under Order VII Rule 11.

Given grounds taken in Civil Revision on hand, it would be appropriate to go through contents of application under Order VII Rule 11 CPC,

Objections filed by respondent-Bank thereto, and impugned Order passed thereon.

Application under Order VII Rule 11 CPC, on its plain reading, reveals that petitioner has claimed therein that civil suit filed by respondent-Bank

deserves to be dismissed as it does not disclose any cause of action against him inasmuch as Bank admitted in paragraph 9 of plaint that department

enquiry had been initiated against petitioner and that till findings with substantial evidence were exhibited by enquiry that too against petitioner, the

Bank has no cause of action against him. It is also mentioned in the application that as per rules governing the Bank, it is clear that enquiry is to be

conducted and finding is to be recorded whereas it is in violation thereof that respondent-Bank filed the suit and sought prematurely recovery.

Application also divulges that suit of respondent Bank to initiate recovery of proceedings against petitioner is in total abuse of law and without any

substantial evidence and that once FIR no.81/2016 has been lodged by the Bank against petitioner and other persons, which is pending investigation

and no charge sheet has been filed, so it is evident that Bank is not sure about allegations levelled against petitioner and, therefore, adopting different

norms is only to harass petitioner.

In their objections in opposition to application under Order VII Rule 11 CPC, respondent-Bank has insisted that investigation is complete and final

award was passed by investigation officer prior to institution of suit inasmuch as in paragraph 7 of plaint it has been stated that departmental inquiry is

complete and award has been passed against petitioner and same has been served upon him within time. Respondents have also insisted that full dress

departmental enquiry was initiated against petitioner, in which he participated and the said enquiry stands concluded and findings of enquiry officer

were forwarded to petitioner, which were duly acknowledged by him and even he submitted response thereto and decision thereon was taken by

Disciplinary Authority, which was conveyed through show cause notice upon petitioner. Petitioner has never questioned the said decision. It is

maintained by respondents that cause of action has accrued on the same day when petitioner was found guilty of embezzlement in terms of EDB

Rules and it is disciplinary authority, which has to conduct inquiry and pass award and after due investigation and inquiry, petitioner was found guilty

and accordingly FIR was lodged against him police station Qazigund.

Order VII Rule 11 CPC provides for rejection of a plaint on various counts. It would be, thus, appropriate to extract Order VII Rule 11 CPC herein:

“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 that the term “cause of action†refers to a set of facts or allegations that make up the grounds to

file a suit. A cause of action is, therefore, by its very nature essential to a civil suit as without a “cause of actionâ€, 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 Code of Civil Procedure, in

various places. The first such instance is in Order I Rule 8 CPC, where in the Explanation, it is mentioned that parties, being represented in the suit,

need not have 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 in which it is stated that a plaint must mention “cause of actionâ€, 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 actionâ€, an important part of a civil suit but is

in essence the reason that civil suit exists in the first place. Any claim that is made in the suit flows from “cause of actionâ€, and as is stated by

abovementioned part of the Code, claims made must be with respect to “cause of actionâ€​ from whence they arise.

To pursue a “cause of actionâ€, a plaintiff pleads or alleges facts in a plaint, 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, Trial Court has relied upon Section 9 CPC, which provides that the Courts shall have jurisdiction to try all suits of a civil nature

excepting the suit, of which their cognizance is either expressly or implied barred. It is well settled law that exclusion of jurisdiction of Civil Court is not

to be readily inferred. Whenever reference is made to an Act or any of its provisions to plead exclusion of jurisdiction, the Court is not required to see

whether such provision does, as a matter of fact, expressly or impliedly bar jurisdiction of civil court but also to satisfy itself that whether under the

scheme of the Act, there is a remedy available to the person, who, though not competent to commence a civil suit made nonetheless, fall back upon

remedy so provided under the Act. Section 9, CPC, confers jurisdiction on Civil Court to try all suits of civil nature excepting suits of which their

cognizance is either expressly or implied barred. It follows that ordinarily a suit of civil nature is to be tried by a civil court and a party questioning

jurisdiction has to substantiate that cognizance of civil suit is expressly or impliedly barred.

It may not be out of place to mention here that whether plaint discloses cause of action is to be seen, ascertain and noticed while keeping in view

the averments made in plaint? The contentions contained in written statement cannot be a ground for rejecting a plaint in terms of Order VII Rule 11

CPC. Even if a Judge is of the opinion that plaintiff may not succeed on the averments made in the plaint, but that cannot be the ground to reject the

plaint. The Supreme Court in Mayar (H.K.) Ltd and others v. Owners and Parties, Vessel M.V.Fortune Express and others, 2006 AIR SCW 863, has

taken this view. A Bench of this Court has also taken the same view in Ghulam Rasool Parray v. Suhail Wahid Malik, 2007 (3) JKJ 385 (J&K). The

case in hand is also squarely covered by the law laid down in abovementioned reported judgement of the Supreme Court and this Court. Petitioner has

not been able to make out any case muchless a ground for permitting application under Order VII Rule 11 CPC and, therefore, impugned order does

not warrant any interference. Resultantly, revision petition on hand is liable to be dismissed.

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

direction, if any, shall stand vacated.

Copy of this judgement be sent down.