Ghulam Hassan Khan and others vs JUDEMENT (ORAL)

short “Trial Court”) on an application filed by defendants/respondents herein under and in terms of provisions of Order VII Rule 11 of the Code of Civil Procedure, thereby allowing the said application and rejecting civil suit bearing File no.45/N titled as Mohammad Ishaq Beigh v. Ghulam Hassan Khan and others, and for setting-aside the same on the grounds made mention of therein.

2. Heard and considered. Perused the record on the file.

3. Defendants before the Trial Court, respondents herein, preferred to move an application under Order VII Rule 11 CPC for the purposes of seeking rejection of the plaint as according to them the suit pending before the Trial Court fall within the ambit of Order II Rule 2 CPC inasmuch as two parallel proceedings, running simultaneously on same cause of action, could not be permitted since it gives rise to multiplicity RFA no.62/2024 of litigation. It is their further contention that in the suit having been filed by plaintiff before the Trial Court on 28th March 2019, compensation is being sought on account of breach of compromise/ contract entered into between the parties way back on 12th May 2006 whereas fact of the matter is that plaintiff had already filed a suit before the court of Municipal Magistrate on 18th September 2018, on same cause of action. The Trial Court allowed application and rejected the plaint.

4. Appellants plead that impugned judgement and decree is contrary to law as Trial Court could have consolidated two suits. The Trial Court, as is maintained by appellants, could have taken recourse to inherent power under Section 151 CPC, or resorted to Section 10 CPC to stay the suit till the disposal of the first suit.

5. All that has been stated and urged by appellants requires this Court to have terse discussion qua Rule 11 of Order VII CPC as it provides for rejection of a plaint and the grounds on which a plaint can be rejected. The object of such powers conferred on the court is to reduce the menace of sham and meaningless litigation. Rule 11 of Order VII CPC, therefore, is profitable to be read hereunder: - “11. Rejection of plaint. The plaint shall be rejected in the following cases- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law: Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be RFA no.62/2024 extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”

6. As per Rule 11 of Order VII CPC, various grounds are given along with a proviso for rejection of a plaint, which are, if there is no cause of action in the plaint, such a plaint can be dismissed; if suit is undervalued, it can be reject; if plaint is not sufficiently stamped, it can be rejected; if plaint is barred by law, it can be dismissed; if a plaint is not filed in duplicate, it ca be rejected; if plaintiff does not comply with Order VII Rule 9, a plaint can be rejected. Rule 11 (d) provides where the suit appears from the statement in the plaint to be barred by any law, the plaint is to be rejected.

7. The relevant principles explained by the Supreme Court in Dahiben v. Arvindbhai Kalyanji Bhanusali, (2020) 7 SCC 366, are as follows: “23.2. The remedy under Order 7 Rule 11 is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision. 23.3. The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted. 23.4. In Azhar Hussain v. Rajiv Gandhi [Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315. Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH 823] this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words : (SCC p. 324, para 12) “12. … The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation, the court RFA no.62/2024 readily exercises the power to reject a plaint, if it does not disclose any cause of action.”

23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order 7 Rule 11 are required to be strictly adhered to. 23.6. Under Order 7 Rule 11, a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512], read in conjunction with the documents relied upon, or whether the suit is barred by any law. .......... 23.9. In exercise of power under this provision, the court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out. 23.10. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration. [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137] 23.11. The test for exercising the power under Order 7 Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] which reads as : (SCC p. 562, para 139) “139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.”

23.12. In Hardesh Ores (P) Ltd. v. Hede & Co. [Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614] the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V. Janakiraman [D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267; See also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941]. 23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 CPC. 23.14. The power under Order 7 Rule 11 CPC may be exercised by the court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra [Saleem Bhai v. State of RFA no.62/2024 Maharashtra, (2003) 1 SCC 557]. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain case [Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315. Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH 823]. 23.15. The provision of Order 7 Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clauses (a) to (e) are made out. If the court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the court has no option, but to reject the plaint.”

8. In simple terms, the true test is first to peruse the plaint and as a whole, taking it to be true. Upon such perusal, if the plaint disclosed a cause of action, then application under Order VII Rule 11 CPC must fail. However, if the plaint does not disclose a cause of action, the plaint has been rightly rejected by the Trial Court.

9. Generally, the term ‘sue’ can mean both the filing of the suit and prosecuting the suit to its culmination, depending on the context of the provision. However, the expressions “omits to sue” and “intentionally relinquish any portion of his claim” in Order II Rule 2 CPC indicate that the legislature thought it fit to debar a plaintiff from suing afterwards for any relief which he/she has omitted without the leave of the court or from suing in respect of any portion of his claim which he intentionally relinquishes. Order II Rule 2 CPC with Explanation and Illustration is worth to be read as under: “2. Suit to include the whole claim. (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Relinquishment of part of claim- (2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished. Omission to sue for one of several reliefs- (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, RFA no.62/2024 except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation. — For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. Illustration- A lets a house to B at a yearly of rent Rs. 1200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.”

10. Order II Rule 2(1) provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If the two suits and the relief claimed therein are based on the same cause of action then the subsequent suit will become barred under Order II Rule 2. A person entitled to more than one relief regarding same cause of action can sue for all or any of such reliefs, but if he omits except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted as is provided under Order II Rule 3.

11. So, Order II Rule 2 CPC applies to subsequent suits filed without obtaining leave for claiming a relief though available on same cause of action not claimed in previous suit. Omission to sue for any available relief on accrued cause of action debars subsequent suit unless leave obtained from court in previous suit.

12. All what is prohibited by Order II Rule 2 CPC are that a cause of action cannot be split up to sue for one part in one suit and another part in another suit. When a cause of action gives rise the entire claim must be included in the suit and, if it is not done, the subsequent suit for the omitted or relinquished portion would be barred forever. RFA no.62/2024

13. The Supreme Court in M/s Virgo Industries (Eng.) P. Ltd v. M/s Venturetech Solution P. Ltd (2013) 1 SCC 625, has observed and said that Order II Rule 2 CPC requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, plaintiff has an option to relinquish any part of his claim if he chooses to do so and that Order II Rule 2 contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If plaintiff so acts, Order II Rule 2 CPC makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished and that a plaintiff is precluded from bringing subsequent suit to claim the relief earlier omitted.

14. In the present case there is no dispute about the fact that Mohammad Ishaq Beigh, father of appellants 1 to 5 and husband of appellant no.6, had in the year 2018, i.e., on 18th September 2018, filed a civil suit before the court of Sub Judge (Municipal Magistrate) Srinagar, averring therein that defendants/respondents constructed a house without permission from concerned authority and that defendants had agreed that they would not project any sunshade over the windows from the side of plaintiff. It is also mentioned in the suit before the court of Municipal Magistrate that in the year 2006 defendants started construction without leaving the fire gap and in violation of BOCA rules and regulations and that with the intervention of respectable persons, parties executed an agreement with certain terms and conditions. It had been further contention of plaintiff that defendants started repairment of house by constructing projection on the side of RFA no.62/2024 plaintiff. In that suit before the Municipal Magistrate, plaintiff prayed for a decree for permanent injunction to permanently restrain private defendants from removing tin sheets of the windows from the side of the plaintiff’s house with a further prayer to direct official defendants to demolish illegal construction of private defendants which private defendants had raised illegally and unauthorizedly.

15. Aforenamed Mohammad Ishaq Beigh, again on 28th March 2019, as is pleaded him as well, filed a civil suit before the Trial Court, stating therein that parties had been litigating before the court of Municipal Magistrate, Srinagar, during the year 2003-2004, which ultimately by the indulgence of some respectable persons culminated into execution of compromise deed in the year 2006 (i.e., on12th May 2006). In the second suit, plaintiff, Mohammad Ishaq Beigh, had again come up with a stand that defendant started construction/repairing/ renovation of his house facing towards his house and advanced sunshade projections over the windows in contravention of covenants of instrument of compromise deed inasmuch as defendant did not obtain prior consent of plaintiff. So, one suit came to be filed by plaintiff before Municipal Magistrate for dismantling the construction erected in contravention of covenants of compromise deed. The suit before the court of Municipal Magistrate, on his own showing, had been filed by plaintiff on 18th September 2018. Plaintiff in his subsequent suit has averred that he sent a legal notice to defendants on 11th September 2018 and demanded amount as damages. It is by his own showing that plaintiff had first issued notice RFA no.62/2024 upon defendants on 11th September 2018 and thereafter filed a suit before the court of Municipal Magistrate. In both the suits, reliance is being made on compromise/ agreement made/executed in the year 2006. In second suit, plaintiff sought decree for compensation to be paid by defendant no.1, namely, Ghulam Hassan Khan, in the amount of Rs.2.00 Lacs along with interest from the date of compromise for non-performance and violation of the terms and conditions of the compromise deed entered into between the parties way back in the year 2006, in favour of plaintiff. Decree for awarding plaintiff Rs.2.00 Lacs on account of legal expenses, together with interest at the market lending rate for the expenses incurred by plaintiff as litigation charges for pursuing the case in the court of law is also sought for. Such a relief was available to him and could have been sought for by him in his earlier suit, which he omitted to do, so the provisions of Order II Rule 2 CPC apply and has rightly and correctly been applied by the Trial Court while passing judgement impugned, which, as such, does not call for any interference.

16. For the reasons discussed above, the instant appeal fails and is, accordingly, dismissed with connected CM(s). Interim direction, if any, shall stand vacated. Srinagar 30.08.2024 Ajaz Ahmad, Secretary Whether approved for reporting? Yes/No (Vinod Chatterji Koul) Judge RFA no.62/2024