The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRP No.10 of 2023 Tarunkanta Mohanty and another Petitioners Mr. S.P. Biswal, Advocate on behalf of Mr. Suvashish Pattanaik, Advocate …. Tusharkanta Mohanty -versus- …. Opposite Party
Decision
CORAM: HON’BLE MR. JUSTICE MURAHARI SRI RAMAN ORDER 10.07.2024 Order No. 13. This matter is taken up through Hybrid Mode. Against the order dated 06.02.2023 passed by the learned 2nd 2. Additional Civil Judge (Senior Division), Bhubaneswar in C.S. No.2385 of 2021 rejecting a petition under Order 7, Rule-11(a) & (d) of C.P.C., the petitioner-defendant has come up before this Court invoking provisions under Section 115 of the Code of Civil Procedure. 3. Learned counsel for the petitioners submitted that the property, which is subject matter of partition suit scheduled property, the opposite party has filed a suit for partition and permanent injunction. He further submitted that the opposite party- plaintiff during the life time of his father he had been allotted flat at Cuttack and received financial benefit from sale proceeds of other properties. Therefore, the suit is liable to be dismissed. It is submitted that the plaintiff having been given his share of property seeking share in further partition in respect of suit Page 1 of 6 scheduled property is imprudent. Hence, he submitted that the petition under Order 7, Rule-11 should have been allowed by dismissing the suit. 4. Mr. B.C. Ghadei, learned counsel for the opposite party submitted that whether the plaintiff has any share in suit scheduled property and has cause of action to file suit is questions of fact which are required to be adjudicated by adducing evidence. At the threshold, it cannot be decided whether the plaintiff-opposite parties has any share in suit scheduled property. Therefore, he submitted that the petition was rightly rejected. 5. In Kum. Geetha Vrs. Nanjundaswamy, [2023] 14 S.C.R. 153 : 2023 INSC 964 the legal position has been enunciated with respect to petition under Order 7, Rule 11 of the Code of Civil Procedure, 1908, which is extracted herein below: “6. *** The relevant principles have been succinctly explained in a recent decision of this Court in Dahiben v. Arvindbhai Kalyanji Bhanusali, 2020) 7 SCC 366 = [2020] 5 SCR 694 as follows: ‘23.2. The remedy under Order 7 Rule 11 is an independent and special remedy, wherein the court is empowered to threshold, without summarily dismiss a suit at 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. the 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, 1986 Supp SCC 315. Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH Page 2 of 6 823] 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 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 Page 3 of 6 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. in the 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 judgment of Saleem Bhai v. State of Court Maharashtra [Saleem Bhai v. State of 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.’ 6. In simple terms, the true test is first to read the plaint meaningfully and as a whole, taking it to be true. Upon such reading, if the plaint discloses a cause of action, then the application under Order VII Rule 11 of the CPC must fail. Page 4 of 6 To put it negatively, where it does not disclose a cause of action, the plaint shall be rejected.” 6. It is, thus, clear from the above ruling that at the stage of consideration of petition under Order 7, Rule 11, it is to be seen whether the plaint discloses any cause of action and the court is not embark upon to find out whether the allegations in the plaint are true. 7. While going by the contents of the plaint (Annexure-1) it is found that the plaintiff and the defendants in the C.S. No.2385 of 2021 are brothers and the plaintiff claims one-third share from the suit schedule property. Whether he had already been given share in other properties and got financial benefit out of sale proceeds of other properties can be adjudicated during the course of the trial in the suit. The approach of the 2nd Additional Senior Civil Judge, Bhubaneswar, is justified in rejecting the petition under Order 7, Rule 11 who has observed as follows: “The fact that the plaintiff has no share in the suit schedule property and that because of the same the plaintiff has no cause of action is completely a question of fact which can only be ascertained after adducing of evidence by both the side. So, in view of the same, as the plaint filed by the plaintiff, is not hit by Order 7, Rule 11 (a) and (d), the present petition stands rejected.” 8. This court, while holding that the substance of suit is matter of trial, the result of which would depend upon the evidence adduced by the parties in the suit, and finds no infirmity in the Order dated 06.02.2023 passed by the 2nd Additional Senior Civil Judge (Senior Division), Bhubaneswar rejecting the petition under Order 7, Rule 11 of Code of Civil Procedure, 1908. Finding no Page 5 of 6 substance calling for interference by entertaining this CRP, the same is, accordingly, dismissed. It is clarified that interim order passed stands vacated. Laxmikant (M.S. Raman) Judge Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Jul-2024 18:56:49 Page 6 of 6