(SUPREME COURT OF INDIA)
Sopan Sukhdeo Sable and Others
Vs
Assistant Charity Commissioner and Others
HON'BLE JUSTICE DORAISWAMY RAJU AND HON'BLE JUSTICE ARIJIT PASAYAT
23/01/2004
Civil Appeal No. 448 of 2004
JUDGMENT
The Order of the Court is as
follows
Hon'ble Justice Arijit Pasayat:
Leave granted.
1. The appellants who were plaintiffs in a suit filed before the learned Civil
Judge, Senior Division, Srirampur have questioned legality of the conclusions
arrived at by the Courts below holding that the plaint filed by them was to be
rejected in terms of order VII Rule 11 of the Code of Civil
Procedure, 1908 (in short the 'Code'). The plaintiffs claimed to be
tenants under respondent No. 2 Shaneshwar Deosthan Trust (hereinafter referred
to as the 'trust'). Its trustees and the Assistant Charity Commissioner (in
short the 'Commissioner') were the other defendants. Plaintiffs claimed that
they were tenants of the trust of which the defendants Nos. 3 to 13 were the
trustees. Alleging that they have been forcibly evicted notwithstanding
continuance of the tenancy, the suit was filed for the following reliefs:
A) Plaintiff No. 1 to 17.. be declared as the tenants of the properties
described in the plaint belonging to temple Trust, of which defendant No. 2 to
13 are trustees.
B) Defendant No. 1 to 13. be permanently restrained by an order of injunction
not to evict plaintiff No. 1 to 13, forcibly with the held of police and also
not to interfere in their business being carried on by them in suit shops, and
not to interfere in any manner-whatsoever, either by themselves or by their
servants, agents, relatives or anybody claiming through or under them.
C) Direct the defendant No. 2 to 13. to pay compensation for the less caused to
the plaintiffs on account of their acts of omission and commission as described
in the plaint. committed by them prior to the filing of the suit and during
pendency of suit for the damage that may be caused to the plaintiffs.
D) Defendant No. 1 be directed to enquire into the illegal acts, committed by
defendant No. 2 to 13, and issue appropriate direction to that effect. *
2. The suit was numbered as R.C.S. No. 160/1997 in the trial Court. The stand
of the plaintiffs-appellants essentially was that the tenancy was for a period
of 11 years and not for 11 months as claimed by the trust. An application was
filed by the trust raising a preliminary plea that the plaint is liable to be
rejected under Order VII Rule 11 of the Code. With reference to Section 80 of
the Bombay Public Trusts Act. 1950 (in short the 'Act') it was used that no
Civil court had jurisdiction to decide or deal with any question which by or
under the Act is to be decided or dealt with by any officer or authority under
the Act and in respect of which the decision or order of such officer or
authority has been made final and conclusive. The trial Judge framed two
preliminary issues, i.e. (a) whether the suit was liable to be rejected under
Order VII Rule 11 of the Code for want of cause of action, and (b) whether the
suit was tenable against all the defendants. Findings in respect of the
preliminary issues were recorded against the plaintiffs. A finding was recorded
that the plaint does not disclose any cause of action and also in view of the
specific provisions of the Act. the jurisdiction vests only with the District
Court to give direction to Commissioner and in any event Section 80 of the Act
took away jurisdiction of the Civil Court and the plaint was rejected,
Challenging the judgment and decree dated 21.10.2000 passed by the learned
Civil Judge, Senior Division, Srirampur, an appeal was preferred before the
District Court which was numbered as Regular Civil Appeal No. 178 of 200. The
Appeal was dismissed and the decree passed by the trial court was confirmed by
II Additional District Judge at Srirampur, Ahmed Nagar District. The matter was
carried in Second Appeal before the High Court which by the impugned judgment
upheld the findings recorded by the Courts below. Before the High Court, it was
contended by the appellants that Sections 50, 51 and 80 of the Act had no
application and the lease being for 11 years, the action of the trust in
dispossessing the plaintiffs forcibly cannot have the approval of law. The
stand of the trust was to the effect that the plaintiffs have not approached
the Court with clear hands. They had tried to get relief from the High Court by
filing a petition under Article 226 of the Constitution of India. 1950 (in
short the "Constitution"). They failed to comply with the interim
directions given by the High Court and before the date posted before the High
Court for consideration of the interim orders, they filed that suit and prayed
for injunction. Subsequently, the writ petition was withdrawn. The plaint filed
by the plaintiffs did not disclose any cause of action and in any event the
relief sought for could not have been granted by the Civil Court in view of the
specific provisions contained in Sections 50, 51 and 80 of the Act. There was
no forcible dispossession as claimed. The Courts below were justified in
rejecting the plaint.
3. The High Court accepted the plea of the trust and dismissed the second
appeal affirming the conclusions arrived by the Courts below.
4. In support of the appeal, Mr. V.A. Mohta, learned senior counsel appearing
for the appellants submitted that the Courts below have lost sight of the
nuances of order VII Rule 11 of the Code. Even if for the sake of arguments it
is conceded that some reliefs were to be dealt with by the authorities under
the Act. the reliefs were severable and Civil Court and jurisdiction to deal
with them. The dispute projected in the suit essentially related to the
question of tenancy and the relationship between the plaintiffs and the
defendant-trust vis-a-vis the question of tenancy, the term of tenancy are
matters intermittently linked with these basic issues. Such issues cannot be
decided by the authorities under the Act. Therefore, the rejection of the
plaint under order VII Rule 11 of the Code cannot be maintained in law. The plaintiffs
were dispossessed illegally and a person dispossessed illegally was entitled to
protection. A person without title but in "settled" possession as
against mere fugitive possession, can get back possession if forcibly
dispossessed or rather if dispossessed otherwise than by due process of law.
5. Per contra, Mr. A.V Savant, learned senior counsel appearing for the
defendant-trust submitted that the Courts below have concurrently fond it as a
matter of fact that the plaint did not disclose a cause of action and the Civil
Court had no jurisdiction to deal with a matter, specifically in view of what
has been statutorily provided in Section 80 of the Act. With reference to the
judgment of the High Court it was pointed out that the plaintiffs had not approached
the Court with clean hands. They had adopted dubious methods, did not comply
with the directions of the High Court for depositing the stipulated amount. By
a ruse, some reliefs have been sought for in the plaint totally out of context
with the main prayers which are to be dealt with in terms of Sections 50 and 51
of the Act. There were no pleadings about alleged forcible dispossession and
wholly untenable plea about the period of tenancy has been rightly rejected by
the Courts below. Causes (a) and (d) of Rule 11 have full application to the
facts of the case. The whole purpose in filing the suit was to somehow $ or
other remains in possession of the shops which were leased out to them for
certain periods. As a result of the actions of the plaintiffs, the trust would
have been put to huge financial loss. All this according to him. disentitle the
appellants from any relief under Article 136 of the Constitution.
6. Order VII Rule 11 of the Code reads as follows:
Order VII Rule 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 claims is properly valued but the plaint is written 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;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provision of rule 9.
Provided that the time fixed by the Court for the correction of the valuation
or supplying of the requisite stamp-paper shall not be extended unless the
Court, for reasons to be recorded, is satisfied that the plaintiff was
prevented by any cause of an exceptional nature for 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." *
7. In the present case the respondent-trust has relied upon clauses (a) and (d)
of Rule 11.
8. Before dealing with the factual scenario, the spectrum of Order VII Rule 11
in the legal ambit needs to be noted.
9. In Saleem Bhai and Ors. v. State of Maharashtra and Ors. 4) it was held with reference to Order VII Rule 11 of the
Code that the relevant facts which need to be looked into for deciding an
application thereunder are the averments in the plaints. The trial Court can
exercise the power at any stage of the suit-before registering the plaint or
after issuing summons to the defendant at any time before the conclusion of the
trial. For the purposes of deciding an application under clauses (a) and (d) of
Order VII Rule 11 of the Code, the averments in the plaint are the germane; the
pleas taken by the defendant in the written statement would be wholly
irrelevant at that stage.
10. In I.t.C. Ltd. v. Debts Recovery Appellate Tribunal and Ors. 3) it was held that the basic question to be decided
while dealing with an application filed under Order VII Rule 11 of the Code is
whether a real cause of action has been set out in the plaint or something
purely illusory has been stated with a view to get out of Order VII Rule 11 of
the Code.
11. The trial Court must remember that if on a meaningful and not formal
reading of the plaint it is manifestly vexatious and meritless in the sense of
not disclosing a clear right to use, it should exercise the power under Order
VII Rule 11 of the Code taking care to see that the ground mentioned therein is
fulfilled. If clever drafting has created the illusion of a cause of action, it
has to be nipped in the bud at the first hearing by examining the party
searchingly under Order X of the Code. (See L. Arivandandam v. T.V. Satyapal
and Anr. ).
12. It is trite law that not any particular plea has to be considered, and the
whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v.
Nachhattar Singh Gill ). Only a part of the plaint cannot be rejected and
if no cause of action is disclosed, the plaint as a whole must be rejected.
13. In Raptas Brett & Co. Ltd. v. Ganesh Property 7) it was observed that the averments in the plaint as a
whole have to be seen to find out whether clause (d) of Rule 11 of Order VII
was applicable.
14. There cannot be an compartmentalization, dissection, segregation and
inversions of the language of various paragraphs in the plaint. If such a
course is adopted it would run counter to the cardinal canon of interpretation
according to which a pleading has to be read as a whole to ascertain its true
import. It is not permissible to cull out a sentence or a passage and to read
it out of the context in isolation. Although it is the substance and not merely
the form that has to be looked into the pleading has to be construed as it
stands without addition or subtraction or words or change of its apparent
grammatical sense. The intention of the party concerned is to be gathered
primarily from the tenor and terms of his pleadings taken as a whole. At the
same time it should be borne in mind that no pedantic approach should be
adopted to defeat justice on hair-splitting technicalities. #
15. Submission of learned counsel for respondent No. 2 trust was that
requirement of law being reading the plaint in its totality, the appellants
cannot take the plea that they would give up or relinquish some of the reliefs
sought for. That would not be permissible. The plea clearly overlooks the basic
distinction between statements of the facts disclosing cause of action and the
reliefs sought for. The reliefs claimed do not constitute the cause of action.
On the contrary, they constitute the entitlement, if any, on the basis of
pleaded facts. As indicated above. Order VI Rule 2 requires that pleadings
shall contain and contain only a statement in a concise form of the material
facts on which the party pleading relies for his claim. If the plea of Mr.
Savant, learned counsel for the respondent-trust is accepted the distinction
between the statement of material facts and the reliance on them for the claim
shall be obliterated. What is required in law is not the piecemeal reading of
the plaint but in its entirety. Whether the reliefs would be granted on the
pleaded facts and the evidence adduced is totally different from the relief
claimed. All the reliefs claimed my not be allowed to a party on the pleadings
and the evidence adduced. Whether part of the relief cannot be granted by the
Civil Court is a different matter from saying that because of a combined claim
of reliefs the jurisdiction is ousted or no cause of action is disclosed.
Considering the reliefs claimed vis-a-vis the pleadings would not mean
compartmentalization or segregation, in that sense. The plea raised by the
respondent-trust is therefore clearly unacceptable.
16. Keeping in view the aforesaid principles the reliefs sought for in the
suit as quoted supra have to be considered. The real object of Order VII Rule
11 of the Code is to keep out of courts irresponsible law suits. Therefore, the
Order X of the Code is a tool in the hands of the Courts by resorting to which
and by searching examination of the party in case the Court is prima facie of
the view that the suit is an abuse of the process of the court in the sense
that it is a bogus the irresponsible litigation, the jurisdiction under Order
VII Rule 11 of the Code can be exercised. #
17. As noted supra, the order VII Rule 11 does not justify rejection of any
particular portion of the plaint, Order VI Rule 16 of the Code is relevant in
this regard. It deals with 'striking out pleadings'. It has three clauses
permitting the Court at any stage of the proceeding to strike out or amend any
matter in any pleading i.e. (a) which may be unnecessary, scandalous, frivolous
or vexatious, or, (b) which may tend to prejudice, embarrass or delay the fair
trial of the suit, or, (c) which is otherwise an abuse of the process of the
Court. #
18. Order VI Rule 2(1) of the Code states the basic and cardinal rule of
pleadings and declares that the pleading has to state material facts and not
the evidence. It mandates that every pleading shall contain, and contain only,
a statement in a concise form of the material facts on which the party pleading
relies for his claim or defence, as the case may be, but not the evidence by
which they are to be proved.
19. There is distinction between "material facts" and
"particulars". The word 'material facts' show that the facts
necessary to formulate a complete cause of action must be stated. Omission of a
single material fact leads to an incomplete cause of action and the statement
or plaint becomes bad. The distinction which has been made between
"material facts" and "particulars" was brought by Scott,
L.J. in Bruce v. Odhams Press Ltd. 1936 (1) KB 697 in the following
passage:
The cardinal provision in Rule 4 is that the statement of claim must state
the material facts. The world "material" means necessary for the
purpose of formulating a complete cause of action; and if any one
"Material" statement is omitted, the statement of claim is bad; it is
"demurrable" in the old phraseology, and in the new is liable to be
"struck out" under R.C.S. Order XXV, Rule 4 (see phillipps [(1878) 4
QBD 127]; or "a further and better statement of claim" may be ordered
under Rule 7.
The function of "particulars" under Rule 6 is quite different. They
are not to be used in order to fill material gaps in a demurrable statement of
claim - gaps which ought to have been filled by appropriate statements of the
various material facts which together constitute the plaintiff's cause of
action. The use of particulars is intended to meet a further and quite separate
requirement of pleading, imposed in fairness and justice to the defendant.
Their function is to fill in the picture of the plaintiff's cause of action
with information sufficiently detailed to put the defendant on his guard as to
the case he had to meet and to enable him to prepare for trial. *
20. The dictum of Scott. L.J. in Bruce case (supra) has been quoted with
approval by this Court in Samant N. Balkrishna v. George Fernandez ), and
the distinction between "material facts" and "particulars"
was brought out in the following terms:
The word 'material' shows that the facts necessary to formulate a complete
cause of action must be stated. Omission of a single material fact leads to an
incomplete cause of action and the statement of claim becomes bad. The function
of particulars is to present as full a picture of the cause of action with such
further information in detail as to make the opposite party understand the case
he will have to meet. *
21. Rule 11 or Order VII lays down an independent remedy made available to
the defendant to challenge the maintainability of the suit itself, irrespective
of his right to contest the same on merits. The law ostensibly does not
contemplate at any stage when the objections can be raised, and also does not
say in express terms about the filing of a written statement. Instead, the word
'shall' is used clearly implying thereby that it casts a duty on the Court to
perform its obligations in rejecting the plaint when the same is hit by any of
the infirmities provided in the four clauses of Rule 11, even without
intervention of the defendant. In any event, rejection of the plaint under Rule
11 does not preclude the plaintiffs from presenting a fresh plaint in terms of
Rule 13. #
22. According to Mr. Mohta appearing for the appellants, as noted above, the
reliefs are separable and merely because some of the reliefs cannot be granted
by the Civil Court it would entail an automatic rejection of the old plaint. In
fact he submitted that some of the reliefs would be given up by the plaintiffs
in the suit itself. It is true as contended by Mr. Savant learned counsel
appearing for the respondent-trust by ingenious drafting a cause of action in
the nature of red herrings cannot be brought into judicial arena. But a
reading of the reliefs shows that some of them can only be considered by the
Civil Court. #
23. Under order II Rule 1 of the Code which contains provisions of mandatory
nature, the requirement is that the plaintiffs are duty bound to claim the
entire relief. The suit has to be so framed as to afford ground for final
decision upon the subjects in dispute and to prevent further litigation
concerning them, Rule 2 further enjoins on the plaintiff to include the whole
of the claim which the plaintiff is entitled to make in respect of the cause of
action. if the plaintiff omits to sue or intentionally relinquishes any portion
of his claim, it is not permissible for him to sue in respect of the portion so
omitted or relinquished afterwards. If the plaintiffs as contended by Mr Mohta
want to relinquish some reliefs prayer in that regard shall be done before the
trial Court. A reading of the plaint and the reliefs along with the contents of
the plaint goes to show that the main dispute relates to the question of
continuance of tenancy and the period of tenancy. They are in essence unrelated
with the other reliefs regarding enquiry into the affairs of the trust. Such
enquiries can only be undertaken under Section 50 of the Act. For instituting
the suit of the nature specified in Section 50, prior consent of the Charity
Commissioner is necessary under Section 51. To that extent Mr. Savant is right
that the reliefs relatable to Section 50 would require a prior consent in terms
of Section 51. If the plaintiffs give up those reliefs claimed in accordance
with law, the question would be whether a cause of action for the residual
claims/reliefs warrant continuance of the suit. The nature of the dispute is to
be resolve by the Civil Court. The question of tenancy cannot be decided
under Section 50 of the Act. Section 51 is applicable only to suits which are
filed by a person having interest in the trust. A tenant of the trust does not
fall within the category of a person having an interest in the trust. Except
relief in Para D of the plaint, the other reliefs could be claimed before and
can be considered and adjudicated by the Civil Courts and the bar or impediment
in Sections 50 and 51 of the Act will have no relevance or application to the
other reliefs. That being so, Sections 50 and 51 of the Act would not have nay
application to that part of the relief which relates to question of tenancy,
the term of tenancy and the period of tenancy. The inevitable conclusion
therefore is that Courts below were not justified in directing rejection of the
plaint. However, the adjudication in the suit would be restricted to the
question of tenancy, terms of tenancy and the period of tenancy only. For the
rest of the reliefs, the plaintiffs shall be permitted within a month from
today to make such application as warranted in law for relinquishing and/or
giving up claim for other reliefs. #
24. Another plea which has been raised with some amount of vehemence by the
appellant is the alleged forcible possession. This plea is strongly disputed by
learned counsel for the respondent-trust who says that the possession was taken
in accordance with law and as noted above, by voluntary surrendering by most of
the tenants. Much of this controversy revolves from the date till the order of
injunction passed by the trial Court operated.
25. There are two different sets of principles which has to be borne in mind
regarding course to be adopted in case of forcible dispossession. Taking up the
first aspect, it is true that where a person is in settled possession of
property, even on the assumption that he has no right to remain in property, he
cannot be disposed by the owner except by recourse of law. This principle is
laid down in Section 6 of the Specific Relief Act, 1963.
That Section says that if any person is dispossessed without his consent from
immovable property other wise than in the true course of law, he or any person
claiming through him may, by suit, recover possession thereof, notwithstanding
any other title that may be set up in such suit. That a person without title
but in "settled" possession-as against mere fugitive possession - can
get back possession if forcibly dispossessed or rather, if dispossessed
otherwise than by due process of law, has been laid down in several cases. # It
was so held by this Court in Yashwant Singh v, Jagdish Singh ). Krishna
Ram Mohate v. Mrs. Shobha Venkata Rao , at p. 136), Ram Ratan v. State of
U.P. ), and State of U.P. v. Maharaja Dharmender Prasad Singh ).
The leading decision quoted in these rulings is the decision of the Bombay High
Court in K.K. Verma v. Union of India 1954 AIR(Bom) 258).
26. Now the other aspect of the matter needs to be noted. Assuming a trespasser
ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963 can the trespasser seek
injunction against the true owner? This question does not entirely depend upon
Section 6 of the Specific Relief Act, but mainly depends upon certain general
principles applicable to the law of injunctions and as to the scope of the
exercise of discretion while granting injunction? In Mahadeo Savlaram Sheike v.
Pune Minucipal Corporation 3), it was held,
after referring to Woodrofe on "Law relating to injunction; L.C. Goyal
'Law of injunctions; David Bean 'Injunction' Jayce on Injunctions and other
leading Articles on the subject that the appellant who was a trespasser in
possession could not seek injunction against the true owner. In that context
this Court quoted Shiv Kumar Chadha v. MCD 3)
wherein it was observed that injunction is discretionary and that:
"Judicial proceedings cannot be used to protect or to perpetuate a
wrong committed by a person who approaches the Court". *
27. Reference was also made to Dalpat Kumar v. Prahlad Singh ) in regard
to the meaning of the word "prima facie case" and 'balance of
convenience' and observed in Mahadeo's case (supra) that:
"It is settled law that no injunction could be granted against the
owner at the instance of a person in unlawful possession." *
28. The question of forcible possession as claimed is also a matter which
can be pressed into service by the parties before the trial Court and if raised
the Court shall deal with it considering its relevance to the suit and accept
it or otherwise reject the plea in accordance with law. We do not think it
necessary to express any opinion in that regard. #
29. Learned counsel for the respondent-trust has urged with some amount of
vehemence about the conduct of the plaintiffs in not depositing the arrears of
money and the effect of 22 of the tenants out of total 44 tenants surrendering
possession. This is a matter which can be considered in the trial itself so far
as it is relevant. It was submitted by learned counsel for the trust that in
any event the District Court was the only Court having jurisdiction and not the
Court where the suit was filed. This aspect does not appear to have been
specifically urged before the Courts below. So we do not think it appropriate
to express our opinion thereon. As regards the question of arrears it shall be
open to the respondent-trust to move the trial Court for such directions as are
available in law. Looking into the nature of dispute it would be appropriate
if the trial Court makes an effort to complete the trial within six months from
the date of the judgment. The parties are directed to cooperate for disposal of
the suit early within the stipulated time. The appeal is allowed to the extent
indicated without any order as to costs. #