The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 301 of 2007 Susila Dibya Appellant Mr. G.N. Mishra, Advocate …. -Versus- Surendranath Singh and Another …. Respondents Mr. P.K. Rath, Senior Advocate for respondent No.1 CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:18.12.2023 1. Instant appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter refer to as ‘the C.P.C.’) is filed by the appellant assailing the correctness of the judgment dated 26th April, 2007 promulgated in RFA No.2/117 of 2005/2004, whereby, order dated 19th July, 2004 passed in C.S. No.376 of 2003 by the learned Civil Judge (Senior Division), Puri in rejecting the plaint in terms of Order 7 Rule 11 C.P.C was confirmed. 2. The appellant instituted the suit in C.S. No.376 of 2003 against the respondents for a declaration that the sale deeds executed on 11th October, 1965 and 25th March, 1970 in favour of respondent No.1 to be illegal and void and not binding to her and for
Legal Reasoning
permanent injunction. The respondents challenged the suit and claimed for rejection of plaint as per Order 7 Rule 11 C.P.C. on the ground of absence of any cause of action and limitation to challenge the sale deeds. The learned Civil Judge (Senor Division), Puri examined the plaint and considered objection of the respondents and found the claim of the appellant to be false and also the relief to declare the sale deeds as void to be grossly RSA No. 301 of 2007 Page 1 of 8 Susila Dibya Vrs. Surendranath Singh & Another barred by limitation. With the above findings, the plaint was rejected under Order 7 Rule 11(a) C.P.C. Being aggrieved of, the
Decision
appellant filed an appeal which was disposed of and dismissed by judgment dated 26th April, 2007 in RFA No. 2/117 of 2005/2004 with the same conclusion that there is falsity in the claim of the appellant so also the relief to be barred by limitation. As against the dismissal of appeal, the appellant approached this Court in second appeal primarily on the ground, such as, the plaint when disclosed a cause of action could not have been rejected under Order 7 Rule 11(a) C.P.C. 3. This Court by order dated 14th January, 2008 formulated the following substantial questions of law, such as: (i) Whether the learned courts below were justified in rejecting the plaint on the finding of false cause of action on the basis of death certificate filed by defendant No.2 without any opportunity to the plaintiff to rebut the presumption attached to it? (ii) Whether the learned Lower Appellate Court was justified in rejecting the plaint as barred by limitation when fraud was alleged with reference to the date of knowledge of execution of the impugned sale deeds and particularly, when such a point is a mixed question of fact and law? 4. Heard Mr. Mishra, learned counsel for the appellant and Mr. Rath, learned Senior Advocate appearing for respondent No.1. 5. Mr. Mishra, learned counsel for the appellant submits that at the initial stage, the plaint which disclosed a cause of action to institute a suit not to be rejected under Order 7 Rule 11(a) C.P.C. morefully when the Civil Court issued summons on being satisfied about the same. In support of such an argument, Mr. Mishra referred to a decision in the case of Jyotsnarani Padhi and others Vs. Smt. Susila Padhi and others 2008(II) OLR 243. RSA No. 301 of 2007 Page 2 of 8 Susila Dibya Vrs. Surendranath Singh & Another 6. On the other hand, Mr. Rath, learned Senior Advocate for respondent No.1 justifies the impugned judgment in appeal confirming order dated 19th July, 2004 passed in C.S. No.376 of 2003. It is submitted that on a bare reading of the plaint, falsehood is revealed since defendant No.1 had expired much before the date of cause of action and furthermore, the appellant could not have challenged the sale deeds which she herself executed after having obtained permission in connection with Misc. Case No.25 of 1969 and when it was after a gap of more than 30 years to declare it void. Against the aforesaid backdrop, when the suit was instituted, considering the plaint and objection of the respondents, according to Mr. Rath, learned Senior Advocate, the order dated 19th July, 2004 was correctly passed in C.S. No.376 of 2003 rejecting the plaint under Order 7 Rule 11(a) C.P.C. and was rightly confirmed by the learned Lower Appellate Court which, therefore, does not call for any interference. To buttress the argument, Mr. Rath, learned Senior Advocate for respondent No.1 relied upon the following decisions, such as, S.P. Chengalvaraya Naidu Vrs. Jagannath & others (1994) 1 SCC 1; Indian Bank Vrs. Satyam Fibres (India) Pvt. Ltd. (1996) 5 SCC 550; and Ram Chandra Singh Vrs. Savitri Devi and others (2003) 8 SCC 319 contending that falsity is clear and apparent by looking at the plaint since defendant No.1 had expired long before the cause of action shown by the plaintiff. Apart from above, Mr. Rath placed reliance on T. Arivandam Vrs. T.V Satyapal & another (1977) 4 SCC 467; Shakti Bhog Food Industries Ltd. Vrs. Central Bank of India & another (2020) 17 SCC 260; Dahiben Vrs. Arvindbhai Kalyanji Bhanusali & others (2020) 7 SCC 366 stating that a plaint may be rejected under Order 7 Rule-11 C.P.C. if the same is manifestly vexatious and meritless. Referring to the following citations, namely, Cuttack Municipality Vrs. Shyamsundar Behera AIR 1977 Ori 137 and Ashok Transport Agency Vrs. Awadhesh RSA No. 301 of 2007 Page 3 of 8 Susila Dibya Vrs. Surendranath Singh & Another Kumar and another (1998) 5 SCC 567, it is contended that a suit against a dead person, namely, defendant No.1 to be a nullity. On the point of limitation, the decision of the Apex Court in Union of India and another Vrs. Punjab Singh and another (2003) 10 SCC 36 is cited and hence pleaded that there is no error or illegality committed by the learned courts below while rejecting the plaint under Order 7 Rule 11(a) C.P.C. 7. As per Order 7 Rule 11 C.P.C., a plaint may be rejected on following grounds, namely, (a) where it does not disclose a cause of action; (b) where the relief claim is undervalued and the plaintiff failed to correct the valuation within a time fixed by the court; (c) where a relief claim is properly valued but plaint is insufficiently stamped and the plaintiff failed to supply the deficit duty within the time stipulated; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; and (f) where the plaintiff fails to comply with the provision of Rule 9 thereof. If one or more of the above conditions is or are fulfilled, the plaint shall be rejected. In so far as the present case is concerned, rejection of plaint was allowed due to absence of a cause of action on account of falsity in the claim vis-a-vis defendant No.1. 8. In Chengalvaraya Naidu (supra), it was held that a judgment or decree obtained by fraud is a nullity when there is non-disclosure of relevant and material documents with a view to obtain advantage. In the said case, a preliminary decree was managed without disclosing execution of a release deed which was realized during the final decree proceeding and under such circumstances, the Apex Court held that the conduct of the decree holder amounts to fraud. The decision in Satyam Fibres (India) Pvt. Ltd. (supra) is about exercise of inherent power to prevent abuse of process of court when fraud is committed. Similarly, in Ram RSA No. 301 of 2007 Page 4 of 8 Susila Dibya Vrs. Surendranath Singh & Another Chandra Singh (supra), the Apex Court held that inherent power may be exercised when a preliminary decree is found to be obtained by practising fraud. The decision in T. Arivandam (supra) is dealing with the power of a court under Order 7 Rule 11 C.P.C., wherein, it has been held that plaint may be rejected when on a reading of the same, it is found to be manifestly vexatious and meritless in the sense of not disclosing a clear right to sue. The aforesaid decision is heavily relied upon to contend that the plaint in the present case on account of a false claim with the cause of action against defendant No.1 since found to be false was to be rejected which was correctly held so by learned courts below. In the above decision, it has been held that a court should exercise power under Order 7 Rule 11 C.P.C. by taking cognizance of the fact that a clever drafting could create illusion of a cause of action. The other decision in Shakti Bhog Food Industries Ltd. (supra) is with regard to rejection of plaint under Order 7 Rule 11(d) C.P.C., referring to which, it is claimed that the suit is barred by limitation since it relates to cancellation of sale deeds. 9. The death of defendant No.1 had taken place prior to the date of cause of action and by stating that the suit is vexatious or stands on a false foundation, in the considered view of the Court, the plaint could not have been rejected. The basis of cause of action against the contesting defendants as against death of defendant No.1 after 16th March, 2001 though found to be not correct, that by itself cannot be a ground to non-suit the plaintiff, who thereafter moved the learned Trial court for impletion of the LRs of the deceased defendant. The expression of ‘cause of action’ as appearing in Order 7 Rule 11(a) C.P.C. is to be understood to mean a situation or a state of facts that entitles a party to maintain an action in a court which is not limited to the actual infringement of right but includes all the material facts on which it is founded. The facts pleaded are to be collectively examined to RSA No. 301 of 2007 Page 5 of 8 Susila Dibya Vrs. Surendranath Singh & Another find out and ascertain existence of a cause of action. In the case at hand, though defendant No.1 was dead, when the cause of action was alleged held to be incorrect, considering the other circumstances leading to the institution of the suit with defendant No.2 alive may have to be considered and hence, it would not be proper and justified to reject the plaint at the threshold. The decisions on fraud relied on are based on facts and circumstances distinguishable in nature for the reason that fraud was detected having been perpetuated to take advantage of by non-disclosure of relevant material while obtaining relief from a court with such suppression. 10. Admittedly, defendant No.1 was dead by the time, the suit was instituted, hence, therefore impletion of LRs of the said defendants was applied for by the plaintiff, who cannot, therefore, be non-suited by claiming that it was against a dead person, more so when, cause of action stands against defendant No.2 as well. So the contention on such ground seeking rejection of plaint cannot be sustained. The decision in Cuttack Municipality (supra) has upheld rejection for substitution on the ground that the original defendant was dead on the date of institution of the suit which was instituted for recovery of the arrears of municipal taxes and while exercising revisional jurisdiction concluded that Order 22 Rule 4 C.P.C. does not apply nor impletion in terms of Order 1 Rule 10 C.P.C. is permissible. However, the above ratio which is in respect of a sole defendant is inapplicable to the present set of facts, where the challenge is to the validity of the sale deeds alleged to have been obtained by fraud with the involvement of the husband of defendant No.1 and the suit land being sold to defendant No.2 later on. In Ashok Transport Agency (supra), a decree was challenge on the ground that the same is against a dead person and hence, was held a nullity and therefore, not executable. Such is not the case at hand. RSA No. 301 of 2007 Page 6 of 8 Susila Dibya Vrs. Surendranath Singh & Another So considering the facts pleaded in the plaint, notwithstanding the cause of action against defendant No.1 found to be incorrect or false, defendant No.2 being on record and LRs were sought to be impleaded in terms of Order 1 Rule 10 C.P.C. and having been applied for, the plaint could not be rejected on the premise that it was against a dead person although substitution is impermissible. 11. As to the sale deeds, it is challenged by the plaintiff on the ground of fraud. The same is again opposed with the contention that the suit is barred by limitation. However, considering the pleading on record, the knowledge about the fraud has led the plaintiff to institute the suit. Even though, the alleged transactions are more than 30 years old, since the knowledge regarding the fraud is the basis of cause of action, the suit cannot be held as barred by law of limitation. Furthermore, the contention that the deeds carry a presumptive value being more than 30 years old apparently executed by the plaintiff cannot as well be a ground to reject the plaint as against the plea of fraud, which is by alleging that the husband of defendant No.1, who was authorized to look after the properties and to manage the same with a power of attorney executed in his favour, with the trust being broken on execution of the sale deeds, which was revealed some time before the suit was instituted. Whether the permission was obtained in connection with Misc. Case No.25 of 1969 with or without the knowledge or involvement of the plaintiff is a matter of fact to be examined by the learned Trial court. As regards the legal presumption vis-à-vis the sale deeds, the same is rebuttal in nature which is again for a limited purpose to the extent described in Section 90 of the Indian Evidence Act and not to the truthfulness of the contents thereof. Taking a plea of such presumptive value attached to the alleged sale deeds, it cannot also be a ground to reject the plaint. With the above reasoning, the substantial questions of law stand answered. RSA No. 301 of 2007 Page 7 of 8 Susila Dibya Vrs. Surendranath Singh & Another 12. Having considered the facts on record and submissions of learned counsel for the appellant and Mr. Rath, learned Senior Advocate for respondent No.1, it has to be held that both the learned courts below erred in rejecting the plaint when a cause of action was disclosed considering the pleading in its entirety leaving correctness of the facts alleged to be examined during trial, hence, therefore, the suit has to be restored for its disposal on merit. 13. Accordingly, it is ordered. 14. In the result, the appeal is allowed with the suit in C.S. No.376 of 2003 restored to file for its disposal by the learned Civil Judge (Senior Division), Puri in accordance with law preferably within six months from the date of commencement of trial. As a necessary corollary, the impugned judgment dated 26th April, 2007 promulgated in RFA No.2/117 of 2005/2004 by the learned 2nd Additional District Judge, Puri is hereby set aside. The parties are directed to bear their respective costs. (R.K. Pattanaik) Judge Rojina Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 22-Dec-2023 17:38:20 RSA No. 301 of 2007 Page 8 of 8