Subjit Mukherjee vs Irani Chakraborty And Others

Sabyasachi Bhattacharyya, J.

The present revisional application has been preferred by the plaintiff in a partition suit, against an order whereby the Trial Court allowed on contest

an application filed by the defendant/opposite party no. 1 for expunging the plaintiff’s claim relating to one of the properties mentioned in the

schedule of the plaint, being Premises No. 2/A (2-A), Kedarnath Mukherjee Lane, P.S.-Shibpur, District-Howrah.

It was alleged by the defendant/opposite party no. 1 that the plaintiff falsely included the said property in the plaint schedule. The property, it was

alleged by the opposite party no. 1, was not a joint property between the parties but belonged absolutely to the defendant nos. 1 and 2.

Learned counsel for the petitioner argues that it was premature to expunge the said component from the suit property at such an early juncture,

since such allegation of the opposite party no. 1 could at best be decided at the trial of the suit, upon permitting both sides to lead evidence on the said

issue and upon a proper adjudication on the same. Since the facts as alleged now by opposite party no. 1 do not find place in the plaint itself, at this

stage the said property could not be culled out from the hotchpot of the suit and expunged.

It is further submitted by the petitioner that since the allegations made in the application for expunction of the property were squarely denied in the

written objection filed by the plaintiff/petitioner, the said disputed question of fact could not be resolved in a cursory manner at a premature stage of

the suit but would only be subject-matter of adjudication at trial of the suit itself.

In controverting such arguments, learned senior advocate appearing for the opposite parties submits that it was admitted by the plaintiff/petitioner

himself, in his written objection to the application for expunction, that the property in question ought to be expunged from the plaint. By placing

particular reliance on page-6 of the said written objection, learned senior advocate points out that the plaintiff made such admissions in his written

objection.

Learned senior advocate next submits that although the application for expunction was captioned to be one under Section 151 of the Code of Civil

Procedure, the Court had the power under Order VI Rule 16 of the Code to strike out pleadings which were unnecessary and frivolous and which

would otherwise be an abuse of process of the Court. In the present case, it is argued, since the property in question belonged exclusively to the

defendant nos. 1 and 2, the same could not be included in the first place in the hotchpot of the partition suit, for which the introduction of the said

property was frivolous and amounted to an abuse of process of the Court. Hence, it is argued, the Trial Court was justified in expunging the said

property from the plaint schedule.

In this context, learned senior advocate for the opposite parties cites a judgment reported at (2010) 2 SCC 432 [Abdul Razak (dead) through LRS

and others vs. Mangesh Rajaram Wagle and others), wherein the Hon’ble Supreme Court, while referring to Order VI Rule 16 of the Code of

Civil Procedure, held that it empowered the Court to strike out any pleading at any stage of the proceedings in the eventualities contemplated in such

provision. It was further held that normally the Court cannot direct or dictate the parties as to what should be their pleading and how they should

prepare their pleadings and if the parties do not violate any statutory provision, they have the freedom to make appropriate averments and raise

arguable issues. It was further held that since striking off pleadings has serious adverse impact on the rights of the party concerned, the power to do

so has to be exercised with great care and circumspection. It was also held that the plaintiff’s case ought to be presented in an intelligible form so

that the other side may not be embarrassed in meeting it.

In this context, paragraph nos. 16 to 19 of the said judgment are quoted below:

“16. Order 6 Rule 16 CPC which empowers the court to strike out the pleadings reads thus:

“16. Striking out pleadings.â€"The court may at any stage of the proceedings order to be struck out or amended any matter in any pleadingâ€

(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.â€​

A reading of the plain language of the above reproduced provisions makes it clear that the courtʹs power to strike out any pleading at any stage of the

proceedings can be exercised in either of the three eventualities i.e. where the pleadings are considered by the court unnecessary, scandalous,

frivolous or vexatious; or where the court is satisfied that the pleadings tend to prejudice, embarrass or delay the fair trial of the suit or which is

otherwise considered as an abuse of the court.

Normally, a court cannot direct or dictate the parties as to what should be their pleading and how they should prepare their pleadings. If the parties

do not violate any statutory provision, they have the freedom to make appropriate averments and raise arguable issues. The court can strike off the

pleadings only if it is satisfied that the same are unnecessary, scandalous, frivolous or vexatious or tend to prejudice, embarrass or delay the fair trial of

the suit or the court is satisfied that suit is an abuse of the process of the court. Since striking off the pleadings has serious adverse impact on the

rights of the party concerned, the power to do so has to be exercised with great care and circumspection.

In Knowles v. Roberts [(1888) 38 Ch D 263 (CA)] Bowen, L.J. observed: (Ch D pp. 270-71)

“It seems to me that the rule that the court is not to dictate to parties how they should frame their case, is one that ought always to be preserved

sacred. But that rule is, of course, subject to this modification and limitation, that the parties must not offend against the rules of pleading which have

been laid down by the law; and if a party introduces a pleading which is unnecessary, and it tends to prejudice, embarrass and delay the trial of the

action, it then becomes a pleading which is beyond his right.â€​

It is a recognised principle that: “… a defendant may claim ex debito justitiae to have the plaintiffʹs case presented in an intelligible form, so that he

may not be embarrassed in meeting it; and the court ought to be strict even to severity in taking care to prevent pleadings from degenerating into the

old oppressive pleadings of the Court of Chancery.â€​ [Ed.: As observed in Davy v. Garrett, (1878) 7 Ch D 473, p. 486.]

The above reproduced observations have been quoted with approval in Sathi Vijay Kumar v. Tota Singh [(2006) 13 SCC 353] (SCC pp. 366-67,

para 34). In that case, the order passed by the High Court deleting paras 11, 12 and 13(a) from the election petition filed by the appellant was

questioned before this Court on the ground that the case does not fall within the ambit of Order 6 Rule 16. This Court first held that the provisions of

Order 6 Rule 16 CPC are applicable to the election petitions. The Court then referred to the earlier judgments in Roop Lal Sathi v. Nachhattar Singh

Gill [(1982) 3 SCC 487], K.K. Modi v. K.N. Modi [(1998) 3 SCC 573] and United Bank of India v. Naresh Kumar [(1996) 6 SCC 660] and held that

the power to strike out a pleading is extraordinary in nature and must be exercised by the court sparingly and with extreme care, caution and

circumspection.â€​

The next judgment cited by the opposite parties was reported at (2006) 13 SCC 353 [Sathi Vijay Kumar vs. Tota Singh and others]. Paragraph nos.

27 to 30, which were relied on in particular, are reproduced below:

“27. The above provision empowers a court to strike out any pleading if it is unnecessary, scandalous, frivolous or vexatious or tends to prejudice,

embarrass or delay fair trial of the suit or is otherwise an abuse of the process of the court. The underlying object of the Rule is to ensure that every

party to a suit should present his pleading in an intelligible form without causing embarrassment to his adversary (vide Davy v. Garrett [(1878) 7 Ch D

473 : 47 LJ Ch 218 (CA)] ).

Bare reading of Rule 16 of Order 6 makes it clear that the court may order striking off of pleadings in the following circumstances:

(a) where such pleading is unnecessary, scandalous, frivolous or vexatious; or

(b) where such pleading tends to prejudice, embarrass or delay fair trial of the suit; or

(c) where such pleading is otherwise an abuse of the process of the court.

In Halsburyʹs Laws of England (4th Edn., Vol. 9, Para 38), it has been stated:

“Certain acts of a lesser nature may also constitute an abuse of process as, for instance, initiating or carrying on proceedings which are wanting in

bona fides or which are frivolous, vexatious, or oppressive. In such cases the court has extensive alternative powers to prevent an abuse of its process

by striking out or staying proceedings or by prohibiting the taking of further proceedings without leave. Where the court, by exercising its statutory

powers, its powers under rules of court, or its inherent jurisdiction, can give an adequate remedy, it will not in general punish the abuse as a contempt

of court. On the other hand, where an irregularity or misuse of process amounts to an offence against justice, extending its influence beyond the

parties to the action, it may be punished as a contempt.â€​

In Supreme Court Practice, 1995, p. 344 (Sweet & Maxwell), it has been observed:

“This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper

use of its machinery and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process

of litigation…. The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant

circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.â€​

In reply, learned counsel for the plaintiff/petitioner pointed out that it was evident from the general tenor of the written objection to the expunction

application, that the allegations in the said application were categorically denied throughout the written objection, barring the portion at internal page-6

thereof as pointed out by the opposite parties. It is submitted by learned counsel for the petitioner that it was evident from the context that the alleged

admissions were part of a broader spectrum of denial and, obviously by mistake the phrase “it is deniedâ€​ was omitted therefrom. If the entire

written objection is seen in proper perspective, it would be clear that the petitioner all along denied the contentions in the expunction application.

Upon hearing learned counsel and adverting to the materials on record, it is evident that the provisions of Order VI Rule 16 of the Code of Civil

Procedure are not attracted at all to the instant case. The said provisions govern frivolous and vexatious pleadings which might range from the

unnecessary to the scandalous and would prejudice, embarrass or delay fair trial of the suit and also could be an abuse of the process of Court. Even

in Abdul Razak (supra), the Hon’ble Supreme Court was of the opinion that normally a Court cannot direct or dictate the parties as to what should

be their pleadings and how they should prepare their pleadings. If the parties do not violate any statutory provision, they were held to have the freedom

to make appropriate averments and raise arguable issues. It was further held that, since striking off the pleadings has serious adverse impact on the

rights of the party concerned, such power has to be exercised with great care and circumspection. In the event the plaint case was presented in an

intelligible form so that the defendant may not be embarrassed in meeting it, the Court would not strike out the pleadings at all.

It was further held that the power to strike out a pleading was extraordinary in nature and must be exercised by the Court sparingly and with

extreme care, caution and circumspection. In the present case, the question raised by the opposite parties was clearly an issue of fact, which had to be

decided at the stage of trial of the suit, upon taking evidence. It would be premature, at an interlocutory stage, to strike out the pleadings in so far as a

particular suit property was concerned, on the conclusive finding that the said property was not joint between all the parties to the suit.

The purported admission of the plaintiff/petitioner in the written objection to the expunction application was, if seen in proper perspective and in the

context of the entire written objection and the preceding denial, would not amount to an admission at all.

The said stray statement in the written objection could not be culled out of context to be ascribed the quality of an admission.

In any event, in other portions of the written objection, the petitioner denied the allegations made in the expunction application and at best it could

be argued that such denials were contradictory in some places. However, even such purported contradiction could not furnish the defendants/opposite

parties with fool-proof admission worth the name, to bolster their prayer for expunction of a particular suit property.

Moreover, whatever might have been stated in the written objection to the interlocutory application for expunction, such statements could not

amount to pleadings in the suit and, as such, did not give the Trial Court a handle to expunge a particular suit property from the hotchpot of the

partition suit on a premature adjudication of the issue as to whether the said property jointly belonged to all the parties to the suit.

Hence, such premature adjudication by the Court below by way of expunging the property in question from the plaint schedule was an illegal

exercise, undertaken without jurisdiction.

In such view of the matter, the impugned order cannot be sustained.

Accordingly, C.O. No. 2842 of 2018 is allowed, thereby setting aside the impugned order, whereby Premises No. 2/A (2-A), Kedarnath

Mukherjee Lane, P.S.-Shibpur, District- Howrah was expunged from the plaint schedule.

There will be no orders as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.