T. Mohanraj v. Akila Thiruvidancore Siddha Vaidhya Sangam

6.The Learned Counsel for the Appellant/Defendant strenuouslycontends that the Authority to file a suit is not a technicalmatter and a person who is neither a Member nor a Director of theCompany, cannot file a suit on behalf of the Company.7.The Learned Counsel for the Appellant/Defendant projects anargument that the Appellant/Defendant has raised a plea relating tothe Authority to institute the suit on behalf of the Company andnot the manner of verification of the pleadings. As such, thereference made by the Learned Single Judge to the decisions of theHonourable Supreme Court in Ramesh B. Desai and others v. BipinVadilal Mehta and others, [(2006) 5 Supreme Court Cases 638] andAll India Reporter Ltd., Bombay with Branch Office at Nagpur andanother v. Ramchandra Dhondo Datar, [AIR 1961 Bombay 292], are notapplicable to the facts of the present case. 8.Expatiating his submissions, the Learned Counsel for theAppellant/Defendant contends that the Learned Single Judge is notcorrect in holding that the Plaint cannot be rejected on technicalobjections.9.Apart from the above, the Learned Counsel for the Appellant/Defendant submits that the filing of the Civil Suit No.752 of 2005on the file of this Court by L.N.Noel Raj is an abuse of process ofCourt in view of the order passed in O.S.No.272 of 2003 on the fileof District Munsif Court, Kuzhithurai and the Judgment inO.S.No.316 of 1995 on the file of District Munsif Court,Kuzhithurai and as such the suit ought to have been dismissed bythe Learned Single Judge as not maintainable.10.The pith and substance of the contention of the LearnedCounsel for the Appellant/Defendant is that the present C.S.No.752of 2005 has been projected by L.N.Noel Raj at the instance ofAbraham and Sasidharan and further that, repeatedly filing suits onthe same cause of action amounts to gross abuse of process of thisCourt. 11.In response, it is the contention of the Learned Counselfor the Respondent/Plaintiff that the Learned Single Judge hasrightly dismissed the Application Nos.7131 and 4527 of 2007 byassigning cogent and proper reasons and therefore, the same neednot be interfered with in Appeals. 12.In O.A.No.7131 of 2007, the Appellant/Defendant has averredthat L.N.Noel Raj (who represents the Respondent/Plaintiff Company)is neither a Member of the Respondent/Plaintiff Company nor aDirector and that the Company never authorised him to file any suiton behalf of it. https://hcservices.ecourts.gov.in/hcservices/

13.Added further, the suit filed by the said L.N.Noel Rajrepresenting the Respondent/Plaintiff as its Director/ActingPresident is not maintainable, especially, when he has nothing todo with the Company. Therefore, the Appellant/Defendant has soughtfor the dismissal of the suit as not maintainable. 14.In the counter filed by the Director/Acting President ofthe Respondent/Company represented by L.N.Noel Raj, it is statedthat he is the Acting President, pursuant to a Resolution of theRespondent/Plaintiff Sangam and he has sworn to the Plaint and theother proceedings and that the Resolution of the Sangam dated04.01.2003 has been filed by him in the typed set of papers No.1filed against the O.A.No.4527 of 2007 filed by the applicant toreject the Plaint and in the said Resolution, he has been electedas Acting President by the Executive Committee and, as such, hisdescription in the Plaint and all further proceedings institutedbefore this Court is duly authorised and legal one. 15.It is the case of the Respondent/Plaintiff that from thedocuments filed by the Appellant/Defendant in support ofO.A.No.7131 of 2007, the Minutes of the General Body at Page 53 atPage 55, dated 12.09.1992, of the typed set of papers, it is clearthat he is a Member of the Executive Committee, Sl.No.12. Further,the Appellant/Defendant takes a plea that the Appellant relied uponthe Minutes of the General Body before the City Civil Court inI.A.No.21115 of 2002 in O.S.No.15290 of 1996, while B.Abraham theapplicant in I.A.No.21115 of 2002, relied upon the Minutes of theGeneral Body dated 31.08.2002. In the order of the City CivilCourt dated 12.03.2003, it is observed that 'As well as thegenuineness of the resolution in the resolution book Ex.R.1 becomeshighly doubtful.' 16.The Appellant/Defendant filed CRP No.914 of 2003 as againstthe order dated 12.03.2003 passed by the City Civil Court, Chennai,in I.A.No.21115 of 2002 in O.S.No.15290 of 1996 and the same wasdismissed by this Court on 14.08.2002. The Appellant wasdischarged from the Receivership, after a compromise decree hasbeen passed in the main suit. 17.It is the case of the Respondent/Plaintiff that theAppellant by virtue of the orders of the City Civil Court and thisCourt cannot place reliance upon the Minutes of the General Bodydated 31.08.2002, conducted by the Appellant in which he has beenallegedly removed. 18.The other contention of the Respondent/Plaintiff is that hebeing a Member of the Executive Committee in the year 1992 by meansof Minutes of the General Body, dated 12.09.1992 and the Minutes ofthe General Body relied upon by the Appellant being doubted by theCity Civil Court, Chennai, the Appellant cannot rely on the said https://hcservices.ecourts.gov.in/hcservices/ Minutes, nor it is open to him to contend that he is not the Memberof the Respondent/Plaintiff Company nor the Director nor authorisedto file the suit. After the dispute and subsequent to 31.08.2002,the further General Body Meeting has been conducted by theAppellant on 30.08.2003, 21.08.2004, 28.09.2005 and 27.05.2006 andthe list of Directors and Members has no relevance to issue onhand. Moreover, all these matters are for evidence and to beestablished at the trial of the suit. 19.According to the Respondent/Plaintiff, because of theAppellant's wrong acts, an Interim Administrator has been appointedearlier, but he has been discharged from the receivership on14.08.2003 by an order of this Court. The misdeeds of the Appellanthave been clearly mentioned in the Plaint and till date, no writtenstatement has been filed by the Appellant/Defendant denying thoseallegations. However, the Appellant has been projectingapplications after applications for rejection of the Plaint. 20.The case of the Respondent/Plaintiff is that a suit cannotbe rejected based on the whims and fancies of theAppellant/Defendant, but it can be based only on the groundsmentioned in Order 7 Rule 11 of the Civil Procedure Code. Further,the present suit is maintainable in view of the fact that a Companycan maintain a suit of the present nature against a wrong doer. 21.In O.S.No.843 of 2005, this Court appointed Thiru.HariChandran, Retired District Judge, as Interim Administrator on16.03.2003 and he has not taken charge. Therefore, an Applicationhas been filed for modification of the order appointing Thiru. HariChandran as Interim Administrator and the same has been modified byappointing Honourable Mr.Justice A.Ramamurthi (Retired), as InterimAdministrator by means of an order 20.06.2006 who has taken chargeon 10.07.2006. The Appellant filed O.S.A.No.243 of 2007challenging the order dated 18.03.2006 and not the order dated20.06.1986 and obtained an order of Stay for appointment of Mr.HariChandran, Retired District Judge, as Interim Administrator on04.10.2007. The Respondent/Plaintiff immediately filed necessaryApplications and in M.P.Nos.2 and 3 of 2007 in O.S.A.No.243 of2007, this Court has passed the following orders on 30.10.2007.“The Administrator, Justice A.Ramamurthi has alreadytaken charge of the Trust and its properties and he ispresently acting as Administrator of the Trust. Theprayer for interim relief is already rejected, andtherefore, the order of interim stay dt: 04.10.2007 standsvacated. M.P.No.2 of 2007 and M.P.No.3 of 2007 areaccordingly disposed of. The appellant is directed not tointerfere with the administration of the Trust by theAdministrator. The Administrator can continue to fileinterim reports and appropriate directions may be passedby the learned Single Judge on the reports that may be https://hcservices.ecourts.gov.in/hcservices/ filed by the Administrator.” 22.The stand of the Respondent/Plaintiff is to the effect thatthe Appellant/Defendant has been swallowing the fees of thestudents and also removing the articles of the College inconnivance with the staff, who are under the control of thePrincipal, etc. Further, the Appellant has not filed his writtenstatement in the suit though summons have been served on him twoyears before and also that, the Appellant has not made out theprima facie case in these two applications.23.In the affidavit in O.A.No.4527 of 2007, the Appellant/Defendant has stated that the Respondent/Plaintiff has no locusstandi to file the suit and that the Respondent/Plaintiff isneither a Director nor the Acting President as claimed by him andfurther, there is no such post of Acting President in the Bye-Lawsof the Respondent Sangam. Also, the Respondent/Plaintiff isneither a person aggrieved nor a person interested in the subjectmatter. 24.The Appellant/Defendant has also averred in O.A.No.4527 of2007 that the Respondent L.N.Noel Raj and one D.Abraham have beenremoved from the rolls of the Sangam and indulged in various sortsof harassment to him and tried to disrupt the administration.They have neither any legal right nor any lawful claim over theSangam, the Hospital or the College. D.Abraham filed O.S.No.272 of2003 before the Learned I Additional District Munsif, Kuzhithurai,on 10.09.2003 seeking the relief of permanent injunctionrestraining the Appellant/Defendant from the administration of theSiddha Medical College and I.A.No.382 of 2003 (Interim Injunction)has been dismissed on 30.09.2003. The Appellant/Defendant referredto the Contempt Petition No.960 of 2003 filed against him beforethis Court stating that he has been functioning as the Presidentand Officer in violation of the Order dated 14.08.2003 in CRPNo.914 of 2003 and the same has been dismissed by this Court on09.02.2004. 25.L.N.Noel Raj and others arranged to file another suitagainst the Appellant/Defendant in O.S.No.18 of 2004 in the name offour persons before the Principal Sub Judge, Nagercoil, seeking fora declaration and injunction that the meeting convened by them on31.08.2002 is a valid one and obtained an Ex parte Order ofinjunction. However, the Learned Sub Judge suspended the forciblepolice action on 09.02.2004 and returned the Plaint itself on25.02.2004 for want of jurisdiction. The Plaint has not beenrepresented till date. 26.D.Abraham projected one P.Dhasan to file a suit against theAppellant/Defendant in O.S.No.463 of 2004 before the LearnedPrincipal District Munsif, Kuzhithurai (mentioning the Plaintiffs https://hcservices.ecourts.gov.in/hcservices/ in O.S.No.18 of 2004 in Sub Court, Nagercoil, as D2 to D5) andsought for an injunction restraining the Management of the Sangamand the Medical College. An I.A.No.389 of 2004 has been filed forinterim injunction. But, the Court has not issued any orders infavour of P.Dhasan. Now, the proceedings are stayed by the MaduraiBench of this Court in C.M.P.No.657 in CRP No.140 of 2004.27.The Revenue Divisional Officer, Padmanabhapuram initiatedsimilar proceedings and called the Appellant to appear for enquiryon 20.09.2004. In W.P.No.2619 of 2004, the Madurai Bench of thisCourt on 19.10.2004 stayed the Revenue Divisional Officer'sproceedings. Subsequently, the Revenue Divisional Officer droppedall further proceedings.28.The Respondent/Plaintiff L.N.Noel Raj, suppressing theabove facts, filed W.P.No.4500 of 2004 before the Madurai Bench ofthis Court as though he submitted his representation to theSuperintendent of Police of Nagercoil on 07.09.2004 and he obtainedan order dated 22.12.2004 behind his back directing theSuperintendent of Police to consider his petition. Though theAppellant has been cited as the third respondent in the writpetition, no notice has been given to him before passing of theorder.29.The Appellant filed Review Petition No.7 of 2005 aftercoming to know the order dated 22.12.2004 passed in W.P.No.4500 of2004 by the Madurai Bench of this Court. On 16.04.2005, the ReviewPetition has been admitted and in W.P.M.P.No.2954 of 2005, theorder passed in the W.P.No.4500 of 2004 has been suspended. TheRespondent/Plaintiff filed W.A.No.331 of 2005 and the same ispending.30.Thereafter, the Respondent/Plaintiff projected anotherW.P.No.6432 of 2005 before the Madurai Bench of this Court seekinga direction for the issuance of a Writ of Mandamus, directing thepolice to give protection and assistance in safeguarding theinterest of Sangam and forbearing the Appellant, his men, etc., inany manner interfering with the functioning and the management ofthe Sangam, the College and the properties. Also, W.P.M.P.No.6985of 2005 has been filed praying for an order of injunction. TheRespondent/Plaintiff has filed the present suit without any validreason or cause of action.31.Even according to the Bye-Laws, the President is theOfficer competent to represent the ATSVS Sangam in all Courtmatters.32.Assuming the suit in C.S.No.752 of 2005 is maintainableunder Section 10 of the Civil Procedure Code. The suit filed byD.Abraham as Administrative Secretary of Akila Thiruvidancore https://hcservices.ecourts.gov.in/hcservices/ Siddha Vaidhya Sangam, Munchirai, in O.S.No.272 of 2003 in theCourt of I Additional District Munsif, Kuzhithurai on 10.09.2003seeking for a permanent injunction restraining the applicant fromthe Siddha Medical College and the present suit are one and thesame. The cause of action and the Issues in both the suits aresimilar. Also, the subject matter, the reliefs sought and theparties are substantially identical. 33.According to the Appellant/Defendant, no cause of actionhas arisen within the territorial limits of this Court either inpart or in full. The ATSVS Sangam, the Medical College and all theproperties are situate outside the territorial limits. The saidSangam has no properties now (neither at the time of institution ofthe suit nor till date) outside the Revenue District ofKanyakumari. 34.The Learned Single Judge in the course of his order dated07.03.2008 in Application Nos.7131 and 4527 of 2007 in C.S.No.752of 2005 in Paragraphs 13 to 20 has observed as follows:“13.The learned counsel also relied upon thedecision of the learned Single Judge of the Delhi HighCourt in Nibro Ltd. -vs- National Insurance Company Ltd.(Company Cases Vo.70 page 388), for the preposition thatunless a Director is authorised to file a suit on behalfof the Company, by a Resolution, the suit is notmaintainable. It is held in the said judgment asfollows:-"It is well settled that under Section 291of the Companies Act except where expressprovision is made that the powers of a companyin respect of a particular matter are to beexercised by the company in general meeting, inall other cases the board of directors areentitled to exercise all its powers.Individual directors have such powers only asare vested in them by the memorandum andarticles. It is true that ordinarily the courtwill not unsuit a person on account oftechnicalities. However, the question ofauthority to institute a suit on behalf of acompany is not a technical matter. It has far-reaching effects. It often affects the policyand finances of the company. Thus, unless apower to institute a suit is specificallyconferred on a particular director, he has noauthority to institute a suit on behalf of thecompany. Needless to say such a power can beconferred by the board of directors only bypassing a resolution in that regard." https://hcservices.ecourts.gov.in/hcservices/

14. In short, the contention of the learnedcounsel for the applicant/defendant is-(a)that the person, who instituted the suit on behalf ofthe Company is not a Director;(b)that the fact, that the person, who instituted thesuit is not a Director, is borne out by the statutoryforms filed on the file of the Registrar of Companies;and(c)that there is no Resolution of the Board of Directorsof the Company authorising the person concerned toinstitute the present suit.15.There is no dispute about the fact that theperson, who has instituted the suit, has not filed anyForm No.32 or Form No.36 before the Registrar ofCompanies. The forms filed before the Registrar ofCompanies do not contain the name of Mr.Noel Raj, who hasinstituted the suit. However, the plaintiff has filed adocument along with the plaint. Document No.10 filedalong with the plaint is purported to be the Minutes ofthe Executive Committee of the plaintiff electing Mr.NoelRaj as the Acting President. It is dated 04.01.2003.16.Similarly in the course of arguments, therespondent/plaintiff filed a set of additional documents.The additional document No.9 is the Resolution allegedlypassed by the General Body of the respondent/ plaintiffon 30.09.2004. The aforesaid Noel Raj has beenpurportedly authorised under Resolution No.2 passed inthe said General Body Meeting for instituting a suitagainst the applicant/defendant on the file of thisCourt.17.Though the respondent/plaintiff ought to havefiled the alleged Resolution dated 30.09.2004 at the timeof institution of the suit itself, I cannot brush itaside, at this stage. Under normal circumstances, thesuit should not have been numbered without demanding acopy of the resolution. It a demand had been raised atthe time of scrutiny, the plaintiff would have had anopportunity to file the document, which is now filed asadditional document No.9. Since a question is raisedonly now, the plaintiff has filed the said document.18.Therefore, now a factual dispute has arisen asto whether the person, who instituted the suit on behalfof the Company, was really authorised to institute thesuit and as to whether he was actually an Office bearercompetent to verify and sign the pleadings. While thecase of the applicant/ defendant is based upon thestatutory returns and statutory provisions, the defenceof the respondent/plaintiff is based upon an allegedResolution.19.But if the General Body of the plaintiff had, https://hcservices.ecourts.gov.in/hcservices/ in fact, passed a Resolution as alleged by the plaintiffon 30.09.2004, then it cannot be said that the suit wasinstituted by an incompetent person, not authorised inthis regard. If no such Resolution had been passed, asclaimed by the plaintiff, then the very institution ofthe suit is bad and unauthorised. Therefore, the answerto the question raised by the applicant/defendant lies infinding out, as a matter of fact, whether there was anyResolution actually passed on 30.09.2004 or not. Thisfinding of fact cannot be arrived at, in an applicationunder Order VII Rule 11 C.P.C.20.It is true that there is a statutorypresumption in favour of the contents of the forms filedwith the Registrar of Companies. But, as admitted byMr.V.Selvaraj, learned counsel for theapplicant/defendant, it is a rebuttable presumption.Section 164 itself says that the returns filed are onlyprima facie evidence of their contents. Therefore, it isalways open to the respondent/ plaintiff to show that theforms were actually filed by a person, who was not in theBoard and who was not authorised to file them. It isalways open to the persons, who are the actual officebearers, to come and rebut the presumption created underSection 164. But the opportunity to do so will arise onlyat the time of trial. In other words, the question as towhether Mr.Noel Raj was a Director, whether the Companyauthorised him to institute the suit and whether the suitwas properly instituted or not, are all questions offact, which can be decided only at the time of trialespecially when the plaintiff has produced a document toshow his authority. The jurisdiction to reject a plainteither under Order VII Rule 11, C.P.C. or to dismiss thesuit on any technical ground, cannot be exercised, if thedispute raised is on a question of fact, which can beestablished only by evidence. It is only on admittedplaint averments that a suit can be dismissed or plaintrejected, if no further evidence is necessary. I find inthis case that a disputed question of fact has arisenabout the status of a person, who has filed a suit onbehalf of the Company and also about his authority toinstitute the suit. This disputed fact cannot be decidedat this stage.”35.The Learned Counsel for the Appellant/Defendant cites thedecision of the Honourable Supreme Court in State TradingCorporation of India Limited (in all the Petitions) v. TheCommercial Tax Officer and Others, (In petns.Nos.202, 203 of 1961)and The Asst. Supdt. Of Commercial Taxes, Bihar and Others (InPetn.No.204 of 1961), [AIR 1963 Supreme Court 1811], at Page 1813whereby and whereunder it is observed thus: https://hcservices.ecourts.gov.in/hcservices/ “Unlike an unincorporated company, which has noseparate existence and which the law does not distinguishfrom its members, an incorporated company has a separateexistence and the law recognises it as a legal personseparate and distinct from its members. This new legalpersonality emerges from the moment of incorporation andfrom that date the persons subscribing to the memorandumof association and other persons Joining as members areregarded as a body corporate or a corporation aggregateand the new person begins to function as an entity. Butthe members who form the incorporated company do not pooltheir status or their personality. If all of them arecitizens of India the company does not become a citizenof India any more than if all are married the companywould be a married person. The personality of the membershas little to do with the persona of the incorporatedcompany. The persona that comes into being is not theaggregate of the persona either in law or in metaphor.The corporation really has no physical existence; it is amere 'abstraction of law'. (1872) 8 Ch A 149 and (1897)AC 22, Ref.to.”36.He also relies upon the decision of the Honourable SupremeCourt in Hakam Singh v. M/s.Gammon (India) Limited, AIR 1971SUPREME COURT 740, at Page 741 wherein in Paragraphs 3 and 5, it islaid down as follows:“3.Section 41 of the Arbitration Act, 1940, providesin so far as it is relevant :"Subject to the provisions of this Act and of rulesmade thereunder:(a)the provisions of the Code of Civil procedure,1908, shall apply to all proceedings before the court,and to all appeals under this Act."The Code of Civil Procedure in its entirety appliesto proceedings under the Arbitration Act. Thejurisdiction of the Courts under the Arbitration Act toentertain a proceeding for filing an award is accordinglygoverned by the provisions of the Code of CivilProcedure. By Cl.13 of the agreement it was expresslystipulated between the parties that the contract shall bedeemed to have been entered into by the parties concernedin the City of Bombay. In any event the, respondent havetheir principal office in Bombay and they were liable inrespect of a cause of action- arising under the terms ofthe tender to be sued in the Courts at Bombay. It is notopen to the parties by agreement to confer by theiragreement jurisdiction on a Court which it does notpossess under the Code. But where two courts or more haveunder the Code of Civil Procedure jurisdiction to try a https://hcservices.ecourts.gov.in/hcservices/ suit or proceeding an agreement between the parties thatthe dispute between them shall be tried in one of suchCourts is not contrary to public policy. Such anagreement does not contravene S. 28 of the Contract Act.4. ....5.The argument of counsel for the appellant that theexpression "corporation" in Explanation II includes onlya statutory corporation and not a company registeredunder the Indian Companies Act is, in our judgment,without substance. The Code of Civil Procedure uses theexpression "corporation" as meaning a legal person andincludes a company registered under the Indian CompaniesAct. Order 29 of the Code of Civil Procedure deals withsuits by or against a corporation and there is nothing inthe Code of Civil Procedure that a corporation referredto under S.20 means only a statutory corporation and nota company registered under the Indian Companies Act.”37.The Learned Counsel for the Appellant/Defendant draws theattention of this Court to the decision of the Delhi High Court inFERRUCCIO SIAS AND ANOTHER V. JAI MANGA RAM MUKHI AND OTHERS,[(1994) 1 COMPS LJ 345 (DEL)], wherein it is held that “thepetitioner having no authority to institute a suit on behalf of theCompany is not entitled to obtain an interim order”.38.The Learned Counsel for the Appellant/Defendant also seeksin the aid of the decision of the Delhi High Court in M/s.NibroLimited v. National Insurance Co. Limited, [AIR 1991 DELHI 25],wherein it is held as follows:“Order 29, Rule 1 of the Code of Civil Proceduredoes not authorise persons mentioned therein to institutesuits on behalf of the corporation. It only authorisesthem to sign and verify the pleadings on behalf of thecorporation. It is well settled that under S.291 of theCompanies Act except where express provision is made thatthe powers of a company in respect of a particular matterare to be exercised by the company in general meeting-inall other cases the Board of Directors are entitled toexercise all its powers. Individual directors have suchpowers only as are vested in them by the Memorandum andArticles. Thus, unless a power to institute a suit isspecifically conferred on a particular director, he hasno authority to institute a suit on behalf of thecompany. Needless to say such a power can be conferred bythe board of directors only by passing a resolution inthat regard.”39.Yet another decision in LALITHAMBA BAI V. HARRISONSMALAYALAM LTD. AND ANOTHER [Vol.63 COMPANY CASES 662], is relied on https://hcservices.ecourts.gov.in/hcservices/ the side of the Appellant/Defendant, wherein it is held as follows:“Under section 41 of the Companies Act, 1956, twoessential conditions have to be satisfied to constitute amember of a company, other than a subscriber to thememorandum of association: (1) an agreement in writing tobecome a member, and (2) an entry on the register. Thesetwo conditions are cumulative. Both these conditions haveto be satisfied and if both these conditions are notsatisfied, the person in question cannot claim the statusof a member. The position in the English Act is alsoalmost identical.”40.Apart from the above, the Learned Counsel for theAppellant/Defendant cites the following decision:(a)In Swadharma Swarajya Sangha rep. by its DirectorMrs.Lalitha Rathnam, Madras-1 v. Indian Commerce &Industries Company Private Ltd., having its RegisteredOffice at No.29, Broadway, Madras-1, [1998-1-L.W.203],this Court has held as follows:“A reading of the Art.104 of theMemorandum of Articles of the Company leads toan inference that it is the Directors whoshould jointly authorise to decide to instituteor institute a suit. Concedingly, the Directorshave passed no resolution deciding to institutea suit binding the institution with the resultof the suit. The suit having been filed withoutthere being any resolution and as thecorporation can only file a suit if there is aresolution for the same, the suit was not filedby an authorised person under Order 29, Rule 1of the Code of Civil Procedure. The suit assuch is not maintainable.”(b)In Nelamega Bhatachariar v T.R.Govindaraghavanand others [AIR 2001 NOC 99 (MADRAS) = 2001 AIHC 2869],it is observed that “Objection as to maintainability ofthe suit, requested to be tried as preliminary issue andto reject the plaint, it is held that merely becauseevidence has begun or trial is in progress and theobjection can be decided along with the suit is notproper. Also, it is further observed that when onpreliminary issue, entire suit itself can be disposed ofas not maintainable or is barred under O.7 and R.11 ofthe Civil Procedure Code, Court should not wait tillentire evidence is over.”(c)In Bijendra Prasad and others v. Smt.DuleshwariDevi and others, [AIR 1998 PATNA 122], at Page 125, it isamong other things observed as follows: https://hcservices.ecourts.gov.in/hcservices/ “A perusal of the provisions of Order 7,Rule 11 of the Code do not envisage anylimitation or restrictions on the exercise ofCourt's power at any stage. Besides this, itdoes not either expressly or by: necessaryimplication provide that jurisdiction underOrder 7, Rule 11 of the Code should beexercised at a particular stage only.Therefore, in the absence of any statutoryrestrictions placed under Order 7, Rule 11 ofthe Code it is open to the Court to exerciseits jurisdiction under this provision at anystage, may be during the trial or at theappellate stage. No doubt, such objections areexpected to be raised at the very threshold sothat unnecessarily Court's time may not bewasted, but, all the same, if the plea israised in the written statement and ultimatelythe Court decides the issue in favour of thedefend-ants in non-suiting the plaintiffs evenafter the settlement of the issues or trial, itcannot be deemed that at subsequent stage thetrial Court or the appellate Court does not getany jurisdiction. In Samar Singh v. Kedarnath,AIR 1987 SC 1926, it has been ruled that plaintcan be rejected even alter the stage ofsettlement of issues etc. Thus, when thedismissal of the suit in the instant caseamounts to rejection of the plaint under Order7, Rule 11(1)(d) of the Code, we fail tounderstand how question arises forgivingfinding on all other issues relating to themerits of the suit, and if other issues are notdealt with by discussing the oral anddocumentary evidence on record, how applyingthe ratio in Sundra Naicka Vadiyar (AIR 1994 SC532) and Dilbagrai Punjabi's case (AIR 1988 SC1858) (supra) the judgment and decree underappeal become ineffective. On the other hand,under the facts and circumstances narratedabove when the dismissal of the suit resultedin dismissal of the plaint, for want of non-observance of the provisions of Section 69 ofthe Partnership Act, the question of dealingwith other issues and discussing the otherevidence, oral and documentary, does not arise.Therefore, the ratio laid down in Sundra NaickaVadiyar and Dilbagrai Punjabi's cases (supra)are of no avail to the appellants.”(d)In Nesammal and 3 others v. Edward and another https://hcservices.ecourts.gov.in/hcservices/ [1998-3-L.W.505], at Page 506, it is held hereunder:“The provisions of Order 7 Rule 11 are notexhaustive and the Court has got inherentpowers to see that the vexatious litigationsare not allowed to take or consume the time ofthe court. In appropriate cases, directions canbe given by this court as well as the Court inwhich the suit is filed not to entertain thesuit, if on reading the allegations in theplaint it reveals that the same is abuse ofprocess of law. In this case all the groundsare made out and the very same plaintiff whogot defeated in the litigation has agitated thevery same issue by filing the present plaint.That apart, in this case, on a reading of theplaint, it is clear that the petitioners wantto re-agitate the entire matter once again. Itis for that reason the Lower Court held thatthe plaint is liable to be rejected. It is thisconduct on the part of the litigant is commonlyknown as abuse of process of Law. As early asin A.I.R. 1915 Madras 483= (1914) 1 LW.875(Lakshmanan Chetty v. Lakshmanam Chettiar andothers) their Lordships held that theprovisions of Order 7, Rule 11 of Code of Civilprocedure are not exhaustive. That is a casewhere the next friend filed the suit on behalfof the minor. The Court found that thelitigation is not for the benefit of the minorand rejected it. The decision was confirmed bythis Court.”(e)In K.K.Somanathan v. K.K.Ramachandran Master andothers, [AIR 1988 KERALA 259], it is laid down asfollows:“The Court has not only the power but theimperative duty also to strike out pleading inappropriate cases under Order 6, Rule 16, atany stage and to reject the petition itselfunder Order 7, Rule 11 if no cause of actionremains. An election petition can be summarilyrejected at the threshold of the proceeding andequally so at any subsequent stage if the basicdefect persists even at that stage. Thestarting of the trial or settlement of issuesis no bar to such an action. Order 7, Rule 11does not place any restriction in that respect.Order 7, Rule 11 does not restrict the power ofthe Court or say that it could be only at anyparticular stage. Especially in an election https://hcservices.ecourts.gov.in/hcservices/ petition this power has to be freely exercised.An election petition which does not discloseany cause of action and which is likely toprove abortive should not be allowed to engagethe time of the Court or act as the Sword ofDamocles hanging over the head of the returnedcandidate deterring him from discharging hisduties to the nation. AIR 1987 SC 1926, Rel.on.”41.The Learned Counsel for the Appellant/Defendant cites thedecision of the Honourable Supreme Court in Samar Singh v. KedarNath and others, [AIR 1987 SUPREME COURT 1926], wherein theHonourable Supreme Court has observed hereunder:“If an election petition does not disclose cause ofaction, it can be dismissed summarily at the threshold ofthe proceeding under Order 7 Rule 11 of the Code of CivilProcedure. If an election petition can be summarilyrejected at the threshold of the proceeding the samecannot be rejected at any stage of subsequent proceeding.If after framing of issues basic defect in the electionpetition persists (absence of cause of action) it isalways open to the contesting respondent to insist thatthe petition be rejected, under Order 7 Rule 11 and theCourt would be acting within its jurisdiction, inconsidering the objection. Order 7 Rule 11 does not placeany restriction or limitation on the exercise of Court'spower; it does not either expressly or by necessaryimplication provide that power under Order 7 Rule 11 CPCshould be exercised at a particular stage only. In theabsence of any restriction placed by the statutoryprovision, it is open to the court to exercise that powerat any stage. While it is true the ordinarily preliminaryobjection as to maintainability of the petition on theground of absence of cause of action should be raised bythe respondent as early as possible but if a party raisesobjections after filing written statement the preliminaryobjection can not be ignored. If the election petitiondoes not disclose any cause of action, the respondent'sright to raise objection to the maintainability of thepetition, or the Court's power to consider the objectionis not affected adversely merely because the objection israised after filing of written statement or framing ofissues. The Court would be acting within its jurisdictionin exercise of its power under Order 7 Rule 11 inrejecting the same even after settlement of issues. AIR1963 Guj 79 Overruled.” 42.Continuing further, the Learned Counsel for theAppellant/defendant relies on the decision of the Honourable https://hcservices.ecourts.gov.in/hcservices/ Supreme Court in RAMESH B. DESAI AND OTHERS V. BIPIN VADILAL MEHTAAND OTHERS, [(2006) 5 Supreme Court Cases 638], at Page 639,wherein it is held as follows:“The principle is well settled that in order toexamine whether the plaint is barred by any law, ascontemplated by Order 7 Rule 11(d) CPC, the avermentsmade in the plaint alone have to be seen and they have tobe assumed to be correct. It is not permissible to lookinto the pleas raised in the written statement or to anypiece of evidence. Applying the said principle, the plearaised by the contesting respondents that the CompanyPetition was barred by limitation has to be examined bylooking into the averments made in the Company Petitionalone and any affidavit filed in reply to the CompanyPetition or the contents of the affidavit filed insupport of Company Application No.113 of 1995 filed bythe respondents seeking dismissal of the Company Petitioncannot at all be looked into.”43.Another decision of the Honourable Supreme Court in POPATAND KOTECHA PROPERTY V. STATE BANK OF INDIA STAFF ASSOCIATION,[(2005) 7 Supreme Court Cases 510], is cited by the Learned Counselfor the Appellant/Defendant to the effect that “Order 7 Rule 11(d)of the Civil Procedure Code applies only where the statement asmade in the plaint without any doubt or dispute shows that the suitis barred by any law in force etc.”44.Besides the above, the Learned Counsel for the Appellant/Defendant cites the decision in Wali Mohammad Khan v. Ishak AliKhan and others, [AIR 1931 Allahabad 507 Special Bench], at Page508, wherein it is held as follows:“Omission to comply with the provisions regardingpresentation of plaint is a mere irregularity and not anabsence of jurisdiction; and if a person presenting it isnot properly authorised the presentation would beirregular and the Court would then have the discretion toallow the irregularity to be cured or not. It theplaintiff has acted in good faith and without grossnegligence and it is fair and just to allow the defect tobe cured the Court would undoubtedly do so: 18 All. 396(F.B.); 22 All.55; 40 All. 147; A.I.R. 1927 All. 514; 21Cal. 866, Appr; 20 All. 90; 45 All. 701=A.I.R. 1924 All.54=77 I.C.30, Overruled.”45.He also cites the decision of the Bombay High Court in AllIndia Reporter Ltd., Bombay with Branch Office at Nagpur andanother v. Ramachandra Dhondo Datar, [AIR 1961 BOMBAY 292], at Page293, wherein it is held as follows:“The provisions contained in O.6, Rr.14 and 15 CivilP.C. with regard to signing and verification of plaint https://hcservices.ecourts.gov.in/hcservices/ are mere matters of procedure and if a plaint is notproperly signed or verified but is admitted and enteredin the register of suits it does not cease to be a plaintand the suit cannot be said not to have been institutedmerely because of the existence of some defects orirregularities in the matter of signing and verificationof the plaint. AIR 1923 Bom 44(1) and AIR 1936 Bom 418and AIR 1932 Bom 367, Rel.on. Observations in AIR 1922Bom 113 (1), held obiter and not foll. It is open to the court or to the officer of theCourt authorized to receive plaints to refuse to admit aplaint if it is not properly signed or properly verified.It is also open to the court at any subsequent stage, onits own initiative or upon objection being taken by thedefendant, to require the plaintiff to sign and verifythe plaint, and if the plaintiff refuses to do so, thecourt can refuse to take any further steps. But thatdoes not mean that if the court requires the plaintiff tosign the plaint subsequently, the original plaint ceasesto be a plaint. In the case of companies the plaint can be signed byeither a Secretary or a Director or other principalofficer under O.29, R.1, Civil Procedure Code, or by anyperson duly authorised by the Company under O.6, R.14.The words “duly authorised” in O.6, R.14, need not berestricted to mean authorised by proper written authorityor by power of attorney. AIR 1943 Cal 13 and AIR 1948Mad 369 and AIR 1939 Nag 242 and AIR 1941 Nag 159, Rel.on. The signature on the plaint not being an act in orto a Court, O.8, Rr.1 and 2 have no application in thematter of signature on the plaint.A company cannot orally authorise another person tosign a plaint on its behalf. A company can act onlyunder its Articles of Association. If a power ofattorney is to be executed for a company, it must satisfythe requirements of its Articles of Association.”46.At this stage, this Court cites the following decisions topromote substantial cause of Justice and to prevent an aberrationof Justice. (1)In T.N.Khambati and other v. Government of A.P.and others, [2004 (6) ALD 243 (DB)], at Page 243 and 244,it is held as follows:“The present case is sought to be brought underClause (a) thereof to show that there exists no cause ofaction. Primarily, if on a bare reading of the plaint nocause of action is seen or shown to have been existed,any exercise of power thereunder is perfectlysustainable. However, even for such exercise, if it https://hcservices.ecourts.gov.in/hcservices/ warrants an ascertainment or verification of such facts,which constitute the foundation for the cause of action,it calls for an enquiry and ultimately both sides have tosubstantiate their respective pleas. Even on a reading ofthe main plaint in this case it does not show that nosuch cause of action exists and the plaintiffs thoughtraced back the cause of action to antedate, butultimately rests the same on the directions given by theSupreme Court, as per the orders dated 17-9-1997.Therefore, it cannot be said that the plaint does notshow any cause of action and it can be thrown out at thethreshold, without a proper assessment. In fact, none ofthe defendants have filed any written statement nor thereexists any such denial on facts as alleged in the plaint.On a reading of the affidavit filed in support of thepresent application, it clearly shows that there isdenial as to the agreement or sale deed held by theplaintiffs and also the question as to whether plaintiffsare entitled to benefit under Section 202 of the IndianContract Act, which again calls for the factualappreciation on the aspect Even on the finding given thatthe plaint does not show the date of death of theAzizunnisa Begum, it is to be noticed that the defendantshave not come out specifically showing the date of deathof Azizunnisa Begum. Even in this aspect the matterrequires to be enquired into on a proper pleadings andevidence from both sides. That apart, there cannot be anydispute in regard to the permission given by the SupremeCourt in the very appeal, to which the predecessor intitle is a party. On the face of it, the plaint could nothave been rejected without a proper enquiry. Further, allsuch objections are matter for regular trial and enquiryand not for entertaining any application under Rule 11 ofthe Order 7 C.P.C. Thus on the entire reading of theorders of the Court below, every finding and the reasonsgiven in support thereof, is virtually embarkment on themerits and a factual appreciation, which traverse beyondthe very nature and scope of enquiry as contemplated.”(2)In Late Syed Burhan (died) by L.Rs v. MohammadJahangir, [2007 (4) ALD 361], at Page 362 and 363, it isheld as follows:“The trial Court went wrong in stating that the suitwas barred under Order II Rule 2 CPC in view of the factthat the plaintiffs have lost the suit earlier filed forpossession. I may state that in the very appeal, the HighCourt in A.S. No. 565 of 1980 has categorically observedthat the trial Court has to proceed with the suit withoutconcern with the findings in O.S. No. 43 of 1978. Noappeal was preferred against the said finding and it has https://hcservices.ecourts.gov.in/hcservices/ become final. The cause of action for filling of the suitwas on the ground that the appellants have refused toperform their part of contract and the said finding wasconfirmed by the Courts consistently. The cause of actionin earlier suit was that he terminated the agreement. Thecause of action pleaded in the suit is not available tothe plaintiffs. They are different. Equally the judgmentin A.S. No. 565 of 1980. No issue was held against theplaintiffs so that it can constitute res judicata.”(3)In the decision of the Honourable Supreme Courtin Deva Ram and Another v. Ishwar Chand and another,[(1995) 6 Supreme Court Cases 733], at Page 733, it isheld as follows:“The provisions of Order 2 Rule 2 indicate that if aplaintiff is entitled to several reliefs against thedefendant in respect of the same cause of action, hecannot split up the claim so as to omit one part of theclaim and sue for the other. If the cause of action isthe same, the plaintiff has to place all his claimsbefore the court in one suit as Order 2 Rule 2 is basedon the cardinal principle that the defendant should notbe vexed twice for the same cause.Order 2 Rule 2 requires the unity of all claimsbased on the same cause of action in one suit. If theidentity of causes of action is established, the rulewould immediately become applicable and it will have tobe held that since the relief claimed in the subsequentsuit was omitted to be claimed in the earlier suit,without the leave of the court in which the previous suitwas originally filed, the subsequent suit for possessionis liable to be dismissed as the appellants, being thedefendants in both the suits, cannot be vexed twice bytwo separate suits in respect of the same cause ofaction. But it does not contemplate unity of distinctand separate causes of action. If, therefore, thesubsequent suit is based on a different cause of action,the rule will not operate as a bar.”(4)In the decision of the Honourable Supreme Courtin Sopan Sukhdeo Sable and others v. Assistant CharityCommissioner and others, [(2004) 3 Supreme Court Cases137], at Page 138 and 139, it is held as follows:“There is a basic distinction between statements ofthe facts disclosing cause of action and the reliefssought for. The reliefs claimed do not constitute thecause of action. On the contrary, they constitute theentitlement, if any, on the basis of pleaded facts.Whether part of the relief cannot be granted by the Civil https://hcservices.ecourts.gov.in/hcservices/ Court is a different matter from saying that because of acombined claim of reliefs, the jurisdiction is ousted orno cause of action is disclosed. Considering the reliefsclaimed vis-a- vis the pleadings would not meancompartmentalization or segregation of the pleadings in asense opposed to the principle that the plaint has to beread as a whole – that is, a giving up or relinquishingof some of the reliefs sought for does not imply that theplaint is not being read in its totality. Under Order 2 Rule 1 CPC, which contains provisionsof mandatory nature, the requirement is that theplaintiffs are duty-bound to claim the entire relief. Thesuit has to be so framed as to afford ground for finaldecision upon the subjects in dispute and to preventfurther litigation concerning them. Rule 2 furtherenjoins on the plaintiff to include the whole of theclaim which the plaintiff is entitled to make in respectof the cause of action. If the plaintiff omits to sue orintentionally relinquishes any portion of his claim, itis not permissible for him to sue in respect of theportion so omitted or relinquished afterwards.”Further, in the aforesaid decision at Page 139 and140, it is held hereunder:“Order 7 Rule 11 lays down an independent remedymade available to the defendant to challenge themaintainability of the suit itself, irrespective of hisright to contest the same on merits. The law ostensiblydoes not contemplate at any stage when the objections canbe raised – the trial court can exercise the power at anystage of the suit, that is, before registering the plaintor after issuing summons to the defendant at any timebefore the conclusion of the trial - and also does notsay in express terms about the filing of a writtenstatement: for the purposes of deciding an applicationunder clauses (a) and (d) of Order 7 Rule 11 CPC, theaverments in the plaint are the germane: the pleas takenby the defendant in the written statement would be whollyirrelevant at that stage. Instead, the word 'shall' isused clearly implying thereby that it casts a duty on theCourt to perform its obligations in rejecting the plaintwhen the same is hit by any of the infirmities providedin the four clauses of Order 7 Rule 11, even withoutintervention of the defendant. In any event, rejection ofthe plaint under Order 7 Rule 11 does not preclude theplaintiffs from presenting a fresh plaint in terms ofOrder 7 Rule 13. Saleem Bhai v. State of Maharashtra, [(2003) I SCC557], relied on https://hcservices.ecourts.gov.in/hcservices/ Only a part of the plaint cannot be rejected and ifno cause of action is disclosed, the plaint as a wholemust be rejected. Order 7 Rule 11 does not justifyrejection of any particular portion of the plaint. Order6 Rule 16 of the Code is relevant in this regard. Itdeals with 'striking out pleadings'. It has three clausespermitting the Court at any stage of the proceeding tostrike out or amend any matter in any pleading.Roop Lal Sathi v. Nachhattar Singh Gill, [(1982) 3SCC 487], relied onThe real object of Order 7 Rule 11 is to keep out ofcourts irresponsible law suits. Therefore, the Order 10CPC is a tool in the hands of the Courts; and byresorting to it and by a searching examination of theparty, in case the Court is prima facie persuaded of theview that the suit is an abuse of the process of thecourt, in the sense that it is a bogus and irresponsiblelitigation, the jurisdiction under Order 7 Rule 11 can beexercised. The basic question to be decided while dealing withan application filed under Order 7 Rule 11(a) CPC iswhether a real cause of action has been set out in theplaint or something purely illusory has been stated witha view to get around Order 7 Rule 11. The trial Courtmust remember that if on a meaningful and not formalreading of the plaint it is manifestly vexatious andmeritless in the sense of not disclosing a clear right tosue, it should exercise the power under Order 7 Rule 11(a) taking care to see that the ground mentioned thereinis fulfilled. If clever drafting has created the illusionof a cause of action, it has to be nipped in the bud atthe first hearing by examining the party searchinglyunder Order 10 of the Code. It is true that by ingeniousdrafting a cause of action in the nature of red herringscannot be brought into judicial arena.”(5)In the decision of the Honourable Supreme Courtin State of Maharashtra and another v. NationalConstruction Company, Bombay and another, [(1996) 1Supreme Court Cases 735], at Page 736, it is held thus:“Section 11. CPC deals with the doctrine of resjudicata and provides that any matter which might orought to have been made a ground for defence or attack inthe former suit shall be deemed to have been a matterdirectly and substantially in issue in such suit. Theimportant words are "has been heard and finally decided".The bar applies only if the matter directly andsubstantially in issue in the former suit has been heardand finally decided by a Court competent to try such https://hcservices.ecourts.gov.in/hcservices/ suit. That clearly means that on the matter or issue inquestion there has been an application of the judicialmind and a final adjudication made. If the former suit isdismissed without any adjudication on the matter in issuemerely on a technical ground of non-joinder, that cannotoperate as res judicata.In the present case in the appeal against dismissalof the first suit the appellate court did not considerthe merits of the case, but confirmed the dismissal ofthe suit by the lower court on a technical ground.Therefore, the dismissal of the short cause suit and thesubsequent appeal could not have operated as a bar to thespecial civil suit. The plea based on the principle ofres judicata fails.Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332:(1966) 3 SCR 300 : 1966 All LJ 578; Inacio Martins v.Narayan Hari Naik, (1993) 3 SCC 123, relied on (2)Both the principle of res judicata and Rule 2 ofOrder 2 are based on the rule of law that a man shall notbe twice vexed for one and the same cause. One of thetests for determining whether Order 2 Rule 2 CPC wouldapply in a particular situation is, “whether the claim inthe new suit is in fact founded upon a cause of actiondistinct from that which was the foundation for theformer suit”. If the answer is in the affirmative, therule will not apply. The cause of action for a suitcomprises all those facts which the plaintiff must averand, if traversed, prove to support his right to thejudgment.Mohd. Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC78: 52 CWN 812: 75 IA 121; Kewal Singh v. Lajwanti,(1980) 1 SCC 290: AIR 1980 SC 161, relied onIn the plaint of the short cause suit, thefoundation of the appellant's claim rested upon thePerformance Guarantee. In the plaint of the specialsuit, the main relief sought by the appellants was on thebasis of the contract entered into between the appellantsand the contractor. In the first suit, the appellantscould only claim reliefs in respect of Rs.14,12,836/-which was the maximum amount stipulated in theperformance guarantee. They could not have claimedreliefs of Rs.1,13,27,298.16 which they did in the secondsuit on the basis of the contract relating to the work tobe performed by the contractor. The relief sought in theshort cause suit was therefore based on a different causeof action from that upon which the primary relief in the https://hcservices.ecourts.gov.in/hcservices/ special suit was founded.”(6)In the decision of the Honourable Supreme Courtin Vishnu Dutt Sharma v. Daya Sapra (Smt), [(2009) 13Supreme Court Cases 729], at Page 735 in Paragraphs 20 to22, it is observed as follows:“20.Any person may as of right have access to thecourts of justice. Section 9 of the Code of CivilProcedure enables him to file a suit of civil natureexcepting those, the cognizance whereof is expressly orby necessary implication barred. Order 7 Rule 11(d) isone of such provision which provides for rejection ofplaint, if it is barred by any law. Order 7 Rule 11(d) ofthe Code being one of the exception, thus, must bestrictly construed. 21.This leads us to another question, namely,whether the civil suit was barred on the date on which itwas filed. Answer to the question whether the civil suitwas barred on the day on which it was filed indisputablymust be rendered in the negative. If as on the date ofinstitution of the suit, plaint could not be rejected interms of Order 7 Rule 11(d) of the Code of CivilProcedure, whether its continuation would attract theprinciples of abuse of processes of court only becausethe accused was acquitted in the criminal proceeding isthe question. 22.Dismissal of a suit on the ground that itattracts the provisions of Section 12 of the Code,keeping in view of the content of provisions of Section11 thereof may now be considered. The principle of res-judicata as contained in Section 11of the Code is notattracted in this case. Even general principle of res-judicata would also not be attracted. A suit cannot beheld to be barred only because the principle of estoppelsubject to requisite pleading and proof may be applied.The said principle may not be held to be applicable onlyat a later stage of the suit.”Also, in the aforesaid decision at Page 738 inParagraph 27 and 28, it is held hereunder:“27.Sections 42 and 43 of the Evidence Act providingfor the relevance of other decrees, order and judgmentread as under:“42.Relevancy and effect of judgments,orders or decrees, other than those mentioned inSection 41.- Judgments, orders or decrees otherthan those mentioned in Section 41, are relevantif they relate to matters of a public naturerelevant to the inquiry; but such judgments, https://hcservices.ecourts.gov.in/hcservices/ orders or decrees are not conclusive proof ofthat which they state. 43.Judgments, etc., other than thosementioned in Sections 40 to 42, when relevant –Judgments, order or decrees, other than thosementioned in Sections 40, 41 and 42 areirrelevant, unless the existence of suchjudgment, order or decree, is a fact in issue,or is relevant, under some provision of thisAct.”28.If judgment of a civil court is not binding on acriminal court, it is incomprehensible that a judgment ofa criminal court will be binding on a civil court. Wehave noticed hereinbefore that Section 43 of the EvidenceAct categorically states that judgments, orders ordecrees, other than those mentioned in Sections 40, 41and 42 are irrelevant, unless the existence of suchjudgment, order or decree, is a fact in issue, or isrelevant in some other provisions of the Act, no otherprovisions of the Evidence Act or for that matter anyother statute had been brought to our notice.”(7)In Mohammad Khalil Khan and others v. Mahbub AliMian and others, [A.I.R. (36) 1949 Privy Council 78], itis held that 'in a case of 'same cause of action' and theevidence supporting two claims are the same and furtherthe cause of action in two suits are the same, then, thenew suit is barred.'(8)In the decision of the Honourable Supreme CourtVithalbhai (P) Ltd v. Union Bank of India, [(2005) 4Supreme Court Cases 315], at Page 316, it is held that'the power of the Court as per Order 7 Rule 11 of theCivil Procedure Code can be exercised both at thethreshold of the proceedings and in the absence of in anystatutory restriction, at any stage of the subsequentproceedings and that a preliminary objection should beraised at the earliest.'(9)In Ram Raghubirlal v. United Refineries (Burma)Limited, [A.I.R. 1931 Rangoon 54], it is held as follows:“A Judge should not be permitted to preclude a partyto an action before him from putting all the availableevidence in the case, to render the whole of the meaningof S.86 nugatory. Where therefore the defence raises thequestion of the competency of the director to sign andverify the plaint, the defendants are entitled so tocross-examine him as to expose all the facts bearing onthat question. It is only when all those facts arebefore it that the Court can properly come to a findingas to whether S.86 covers the case: Bridport Old Brewery https://hcservices.ecourts.gov.in/hcservices/ Company, In re, (1867)2Ch.191 and Harlan v.Phillips, 23Ch.D.14, Ref.”(10)In Kottayam Bank Ltd. v. Ahammed Kannu Rawther,[AIR 1957 KERALA 164 (V 44 C 85 Nov.)] at 164 and 165, itis held as follows:“There is nothing in law to prevent a corporationfrom suing by its agent as provided by O.3, R.1 of theC.P.C. Order 29, R.1 is only permissive and does notpreclude a corporation from taking advantage of O.3, R.1and O.6, R.14 and having its pleadings signed by a dulyconstituted agent. AIR 1930 Bom 566, Ref.”(11)In M/s.Crescent Petroleum Ltd. v. “Monchegorsk”and another, [AIR 2000 BOMBAY 161], at Page 162, it isheld as follows:“The Court has the power under Order 7, Rule 11(a)of the Code of Civil Procedure to reject the plaint atthe threshold. But in this case the Court would rejectthe plaint only if it comes to the conclusion thatnecessary averments and material has not been placedbefore the Court to show, at least prima facie, that PALhad entered into the contract for bunkers at theinstance, authority or faith of the vessel or its owners.In the event the Court comes to the conclusion thatnecessary averments have been made to disclose a cause ofaction in personam against the owner of the vessel, thenit would not be necessary to decide the question of lawraised by Mr. Mukherjee viz. for an action in rem to lieit is essential that the owner of the vessel is liable inpersonam. It would be necessary to decide this questiononly if the Court comes to the conclusion that necessaryaverments have not been made to disclose a cause ofaction in personam against the owner. Having perused theplaint and the documents which are made available, 1 amprima facie of the opinion that the necessary avermentshave been made by the plaintiffs to raise a triable issuewith regard to the bunkers being supplied to the owners.Therefore, it would not be necessary to decide thequestion of law at this stage. I am, prima fade,satisfied that this is not the kind of case where theCourt can come to the conclusion, at this interlocutorystage, that there are no averments showing that thebunkers have been supplied to the ship on the allegedauthority of the owner. The averments in the plaint and the documents onrecord showed that the agreement was entered intoexpressly on the faith and credit of the vessel. It wasagreed and acknowledged that a lien on the vessel wasthereby created. It was also agreed that the buyer, if https://hcservices.ecourts.gov.in/hcservices/ not the owner of the vessel, warrants that he has theauthority of the owner to pledge the vessel's credit. Italso states that he will give notice of the provisions ofthis Clause to the owner. Prima facie, without going intothe merits or evidentiary value of the documents, it isestablished that the plaintiffs are perfectly withintheir right to claim that the necessaries / Bunkers weresupplied at the instance / authority of thevessel/owners. Thus, at this stage it would not bepossible to hold that the contract has not been enteredinto on behalf of the owners of the vessel. This issuewill have to be finally decided on the basis of theevidence which will be adduced at the final hearing ofthe case. Reading the aforesaid averments together itcannot be said that the plaintiffs have not stated thatthe supply of necessaries were not made to the owners ofthe vessel. So, even if the Court proceeds on the basisthat action in rem lies only if the owner is liable inpersonam, the defendant cannot succeed at this stage.Thus the suit could not be dismissed at thisinterlocutory stage on the ground that it is notmaintainable for lack of cause of action.”(12)In Hindustan Petroleum Corporation Ltd. andanother v. Sardar Chand and another, [AIR 1991 PUNJAB ANDHARYANA 185], at Page 186 in Paragraphs 6 and 7, it isobserved as follows:“The Board of Directors, thus, was the authorityunder the Articles of Association, as referred to aboveto take a decision regarding institution or defending thesuits. The power was delegated to Sh. Mohinder KumarBagai vide power of attorney Annexure A/2., now produced.Mr. M. K. Bagai was Director Marketing. Under thisattorney, Mr. Bagai was further authorised to delegatethe aforesaid powers mentioned therein to officer in theMarketing Division. This action of giving authority toMr. M. K. Bagai was rectified by the Board of Directorsin its meeting held on September 30, 1981 vide resolutionA-8, copy Annexure A-1. Subsequently, Mr. Bagai delegatedthe power to Sh. J. Sethi, copy of which was producedalong with memorandum bf appeal filed in the lowerAppellate Court. Copy has been shown and produced in thisCourt as well. This authority was executed on September16, 1983. Under this authority, power was given toprosecute and defend suits under cl.5(1) and to appeal,from any judgment and order adverse to the Company undercl. 5(iv). The matter of taking decision by the Board maydiffer from Company to Company. In the present, referencehas been made to the Articles and Memorandum ofAssociation showing as to how such decisions were https://hcservices.ecourts.gov.in/hcservices/ required to be taken by the Board or by the authoritiesdelegated. Thus, it was not a case where the defendant-Corporation was required to pass resolution in every casewhere the suit was to be filed or an appeal was to befiled in the meeting of Board of Directors. Suchauthority was delegated by the Board to Mr. Bagai, whowas also competent to further delegate it and he did soin favour of Mr. J. Sethi. The appeal having been filedby Mr. J. Sethi under such authority was, therefore,competent. This Court in Pepsu Road TransportCorporation, Patialav. Kirat Mohinder Singh, 1983 PLR 219had held as under:--"The resolution fully authorised the General Managerto act on behalf of the petitioner in all the cases filedor to be filed by or against it. The passing of anyspecific resolution is not contemplated under the Act ineach and every case. Moreover, it will depend upon theconstitution of a Corporation and the manner in which itsfunctions regulated by the State itself. There cannot beany universal rule that every Corporation must actthrough resolutions passed by it in each and every case."7.The learned counsel for the respondents hasreferred to the decision of this Court in Punjab WakfBoard through its Secretary Ambala Cantl. v. Darb Singh(deceased) through his L.Rs. 1988 (1) CLJ 640, a caseunder the Wakf Act; wherein it was held that the WakfBoard was to take a decision for filing appeals. TheSecretary of the Wakf Board of its own could not takesuch a decision and file the appeal. The ratio of thisdecision cannot be applied to the case in hand. That wasnot a case relating to a Company registered under theCompanies Act. The present Corporation is a registeredCompany and is governed by its own rules and regulationsprovided in the Memorandum and Articles of Association,which have been discussed above.”47.The suit O.S.No.271 of 2003 has been filed by theRespondent/Plaintiff, represented by its Administrative SecretaryD.Abraham, against the Appellant/defendant on the file of DistrictMunsif Court, Kuzhithurai, praying for the relief of permanentinjunction restraining the Appellant/Defendant, his men and agents,etc., from interfering with the administration of the Management ofthe Siddha Medical College, Munchirai, run by the Plaintiff Sangamand the other office bearers from causing any disturbance infunctioning in any manner. 48.However, the Respondent/Plaintiff and the Appellant/Defendant have filed O.S.No.147 of 2003 on the file of Learned SubJudge, Kuzhithurai, praying for the relief of (a) declaration thatthe alleged resolutions of General Body which is exhibited as P1 in https://hcservices.ecourts.gov.in/hcservices/ I.A.No.21115 of 2002 in O.S.No.15290 of 1996 of the City CivilCourt, Chennai, as fraudulently manipulated, bogus, non-est,invalid and null and void document (b) for declaring that thealleged resignation letter dated 31.08.2002 which is marked asExt.P2 in C.S.No.15290 of 1996 is a forged as well as bogus, non-est, invalid, null and void document and (c) for the relief ofpermanent injunction restraining the Respondents, their men andagents, from interfering or disturbing with the peaceful and smoothfunctioning of the Respondent/Plaintiff Sangam and all itsinstitutions in any manner whatsoever.49.The Respondent/Plaintiff in C.S.No.752 of 2005 on the fileof this Court as against the Appellant/Defendant has sought thefollowing reliefs: (a)For permanent injunction restraining thedefendant their men, agents, servants and other office bearersappointed by the defendant from in any manner interfering with thePlaintiff's Administration including the collection of fees fromthe student of the college Akila Thiruvithancore Siddha VaidhyaSangam, Ananthasramanm Munchirai, Pudukkadai District, KanyakumariDistrict and its branches morefully described in the schedulehereunder. (b)directing the defendant to render account withregard to the money collected by the defendant from the studentssince 15.08.2003 till the date of the plaint and (c)to pay thePlaintiff the cost of this suit etc.50.That apart, in M/s.Rajghria Paper Mills Ltd. v. GeneralManager, Indian Security Press and another, [AIR 2000 DELHI 239],at Page 245, it is held that 'unless a power to institute suit isspecifically conferred on a particular director he has no authorityto institute the suit on behalf of the company. It must,therefore, follow that although the Plaint has been signed andverified properly but the suit has not been instituted by a dulyauthorised person on behalf of the Plaintiff'.51.In Wipro Limited and another v. Oushadha ChandrikaAyurvedic India (P) Ltd. and others, [AIR 2008 MADRAS 165 (DB)], atPage 172 in Paragraph 18, it is held that 'in deciding anapplication under Clauses (a) and (b) of Order 7 Rule 11 of theCivil Procedure Code, the averments made in the Plaint are germane.The pleas taken by the Defendant in the written statement would bewholly irrelevant at that stage.'52.In the decision of the Honourable Supreme Court in UnitedBank of India v. Naresh Kumar and others, [(1996) 6 Supreme CourtCases 660], at Page 660 and 661, it is held as follows:“A company like the appellant can sue and be sued inits own name. Reading Order 6 Rule 14 together withOrder 29 Rule 1 of the Code of Civil Procedure it wouldappear that even in the absence of any formal letter ofauthority or power of attorney having been executed a https://hcservices.ecourts.gov.in/hcservices/ person referred to in Rule 1 of Order 29 can, by virtueof the office which he holds, sign and verify thepleadings on behalf of the corporation. In additionthereto and dehors Order 29 Rule 1 CPC, as a company is ajuristic entity, it can duly authorise any person to signthe plaint or the written statement on its behalf andthis would be regarded as sufficient compliance with theprovisions of Order 6 Rule 14 CPC. A person may beexpressly authorised to sign the pleadings on behalf ofthe company, for example by the Board of Directorspassing a resolution to that effect or by a power ofattorney being executed in favour of any individual. Inabsence thereof and in cases where pleadings have beensigned by one of its officers a corporation can ratifythe said action of its officer in signing the pleadings.Such ratification can be express or implied. The Courtcan, on the basis of the evidence on record, and aftertaking all the circumstances of the case, specially withregard to the conduct of the trial, come to theconclusion that the corporation had ratified the act ofsigning of the pleading by its officer.”53.In M/s.Allied Motors v. M/s.Sanderson Agencies, [AIR 1992DELHI 324], it is held that 'the suit filed by a person authorisedby Board of Directors of the Company to verify and institute thesame is properly instituted one by the competent person.'54.In Assam Brookes Ltd. v. Lal Bahadur, [1999 AIHC 1965], itis held that 'the irregularities in signing and verifying theplaints are curable and the suit is not liable to be rejected onmere technicality.'55.In S.Ganesan v. S.Issac (deceased by Lrs) and others, [AIR2003 MADRAS 208], it is held as follows:“In order that a plea of the bar under Order 2, Rule2(3) C.P.C. should succeed, the defendant who raised theplea must make out (1) that the second suit was inrespect of the same cause of action as that on which theprevious suit was based; (2) that in respect of thatcause of action the plaintiff was entitled to more thanone relief; (3 ) that being thus entitled to more thanone relief the plaintiff, without leave obtained from theCourt omitted to sue for the relief for which the secondsuit had been filed; (4) that the cause of action and theparties to the second suit shall be the same as in thefirst suit.As the plea is a technical bar, it has to beestablished satisfactorily and cannot be presumed merelyon the basis of inferential reasoning. In other words,the plea of a bar under Order 2, Rule 2 C.P.C. can be https://hcservices.ecourts.gov.in/hcservices/ established only if the defendant files in evidence thepleadings of the previous suit and thereby proves to theCourt the identity of the cause of action as well as theidentity of the parties in the two suits. Thus, where inthe earlier suit filed by the defendant in respect of thesuit house he had claimed half share in the houseproperty and in the appeal filed against the decree ofthe suit the appellant Court had directed to file aseparate suit in respect of that property and there wasno fresh cause of action, the bar of O.2, R.2 read withS.11(4) would not apply.”56.In Gurbux Singh v. Bhooralal, [AIR 1964 Supreme Court1810], at Page 1810 and 1811, it is held as follows:“in order that a plea of a bar under O.2 R.2(3)Civil Procedure code should succeed the defendant whoraises the plea must make out (1) that the second suitwas in respect of the same cause of action as that onwhich the previous suit was based; (2) that in respect ofthat cause of action the plaintiff was entitled to morethat one relief (3) that being thus entitled to more thanone relief plaintiff, without leave obtained from theCourt omitted to sue for the relief for which the secondsuit had been filed. From this analysis it would be seenthat the defendant would have to establish primarily andto start with, the precise cause of action upon which theprevious suit was filed, for unless there is identitybetween the cause of action on which the earlier suit wasfiled and that on which the claim in the later suit isbased there would be no scope for the application of thebar. No doubt, a relief which is sought in a plaint couldordinarily be traceable to a particular cause of actionbut this might, by no means, be the universal rule. Asthe plea is a technical bar it has to be establishedsatisfactorily and cannot be presumed merely on basis ofinferential reasoning. It is for this reason that weconsider that a plea of a bar under 0. 2. r. 2, CivilProcedure Code can be established only if the defendantfiles in evidence the pleadings in the previous suit andthereby proves to the Court the identity of the cause ofaction in the two suits. The cause of action in theprevious suit would be the facts which the plaintiff hadthen alleged to support the right to the relief that heclaimed. Without placing before the Court the plaint inwhich those facts were alleged, the defendant cannotinvite the Court to speculate or infer by a process ofdeduction what those facts might be with reference to thereliefs which were then claimed. It is not impossiblethat reliefs were claimed without the necessary avermentsto justify their grant. From the mere use of the words https://hcservices.ecourts.gov.in/hcservices/ `mesne profits' therefore one need not necessarily inferthat the possession of the defendant was alleged to bewrongful. It is also possible that the expression 'mesneprofits' has been used in the present plaint without aproper appreciation of its significance in law. Whatmatters is not the characterisation of the particular sumdemanded but what in substance is the allegation on whichthe claim to the sum was based and as regards the legalrelationship on the basis of which that relief wassought. It is because of these reasons that we considerthat a plea based on the existence of a former pleadingcannot be entertained when the pleading on which it restshas not been produced.” 57.On a careful consideration of respective contentions, thisCourt is of the considered view that before the Learned SingleJudge in Application Nos.7131 and 4527 of 2007, theAppellant/Defendant or the Respondent/Plaintiff has not let in anyoral or documentary evidence to satisfactorily establish the pleaof bar under Order 2 Rule 2(3) of Civil Procedure Code and alsoeven for the rejection of Plaint on the basis of cause of actionwhere previous and subsequent suits have arisen out of the samecause of action and between the same parties, which has to beproved by oral and documentary in the manner known to law. If boththe suits are on the basis of two different cause of actions forwhich separate evidence will have to be let in by the parties,then, the ingredients of Order 2 Rule 2 of Civil Procedure Code arenot attracted, in the considered opinion of this Court. It is tobe borne in mind that the ingredients of Order 2 Rule 2 of CivilProcedure Code are penal in nature and they should be construedstrictly, as opined by this Court. 58.A 'cause of action' is a bundle of essential facts and itis necessary for the Plaintiff to establish the same before he cansucceed in the suit. The ingredients of Order 2 Rule 2 of CivilProcedure Code are not a meaningless procedural technicalities, butcalculate to combat the plurality of proceedings. In order toattract Order 2 Rule 3 of Civil Procedure Code, it must be shownthat the second suit is based on an identical cause of action andthe criteria for judging the same is whether the same evidencewould maintain both the actions.59.While deciding the application under Order 7 Rule 11 ofCivil Procedure Code for rejection of the plaint, the Court wouldpresume facts mentioned in the plaint as correct. It is to benoted that a Court of Law will not embark upon a roving enquiryinto the truthfulness or falsity of allegation. One cannot brushaside an important fact that the power under Order 7 Rule 11 ofCivil Procedure Code for rejection of plaint will have to beexercised, by a Court of Law with utmost caution, since the https://hcservices.ecourts.gov.in/hcservices/ dismissal of an application for petition at the nascent stage leadsto very serious consequences. Furthermore, a Plaint under Order 7Rule 11 of Civil Procedure Code cannot be rejected on the basisthat there is every likelihood of relief claimed by the Plaintiffnot being granted.60.As a matter of fact, an embargo as regards themaintainability of the suit as per Order 7 Rule 11 of the CivilProcedure Code must be quite apparent from the material avermentsmade in the plaint. In these circumstances, the ingredients ofOrder 2 Rule 2 of Civil Procedure Code are based on the Rule of Lawthat no man shall be vexed twice for one and the same cause ofaction.61.As far as the present case is concerned, admittedly, beforethe Learned Single Judge in Application Nos.7131 and 4527 of 2007in C.S.No.752 of 2005, no oral or documentary evidence have beenadduced by the respective sides in support of their claims. Nowonder, the plea of bar under Order 2 Rule 2(3) of Civil ProcedureCode, is to be established by the Appellant/Defendant with the aidof previous suit by means of adducing oral and documentary evidencein the manner known to law. Therefore, a duty is also cast uponthe Court to perform its obligations, in rejecting the Plaint if itis hit by any of the infirmities under Clauses (a) to (f) of Order7 Rule 11 of Civil Procedure Code even without the intervention ofthe Defendant, as per the decision in Sopan Sukhdeo Sable andothers v. Assistant Charity Commissioner and others, (2004) 3Supreme Court Cases 137. The object behind Order 7 Rule 11 ofCivil Procedure Code is to keep out of Courts irresponsible lawsuits.62.A Plaint should not be rejected under Order 7 Rule 11 ofCivil Procedure Code at the initial state without proper enquiry.At the same time, a Court of Law has enough powers to see thatvexatious litigations are not allowed to consume the time of theCourt. However, a Plaint should * be rejected as per Order 7 Rule11 of Civil Procedure Code where it does not disclose a cause ofaction and not where there is no cause of action. A Plaint wouldbe read as a whole and the merits of the case are not to beconsidered at this stage. 63.Indeed, the averments made in Application Nos.7131 and 4527of 2007 in C.S.No.752 of 2005 and the counter filed thereto are amixed question of fact and law, to be traversed in detail andelaborate examination. 64.Further, in view of the fact that for rejection of theplaint in Application Nos.7131 and 4527 of 2007 in C.S.No.752 of2005 on the file of this Court, the oral and documentary evidenceare necessarily to be let in by the respective parties, this Court https://hcservices.ecourts.gov.in/hcservices/ is of the considered view that a technical plea for rejection ofthe Plaint has to be satisfactorily explained and cannot bepresumed merely on the basis of inferential reasoning or based onassumptions, presumptions or suppositions and in that view of thematter, this Court, without expressing any opinion on the merits ofthe matter and with a view to provide an opportunity to therespective parties to establish their case by means of oral anddocumentary evidence sets aside the order passed by the LearnedSingle Judge in both the Applications and resultantly allows theAppeals to prevent an aberration of Justice.In the result, the O.S.A.Nos.359 and 360 of 2008 are allowedleaving the parties to bear their own costs. Consequently, theCommon Order dated 07.03.2008 in Application Nos.7131 and 4527 of2007 in C.S.No.752 of 2005 passed by the Learned Single Judge, isset aside for the reasons assigned by this Court in these Appeals.The Application Nos.7131 and 4527 of 2007 in C.S.No.752 of 2005 arerestored to the file of the Learned Single Judge. The LearnedSingle Judge is requested to dispose of the Application Nos.7131and 4527 of 2007 in C.S.No.752 of 2005 after providing dueopportunities to the respective parties to let in oral anddocumentary evidence to prove their case by examining the witnessesand marking documents, if they so desire/advised, in the mannerknown to law and in accordance with law. mpsSd/-Asst. Registrar23.08.2011*Corrected as per the order of the Hon'ble Judge.Sd/-Asst Registrar11.10.2011//True Copy//Sub Asst. RegistrarToThe Sub Assistant Registrar,Original Side, High Court, Chennai 104. To be substituted to the order already+ 2 ccs to Mr. V. Selvaraj, despatched onAdvocate SR No. 50607 5.9.2011GV(CO)SR/23.8.201111.10.2011O.S.A.Nos.359 & 360 of 2008