1. Present First Appeal has been preferred by the appellantoriginal plaintiff being aggrieved with the impugned order passed below Exh.31 in Special Civil Suit No.90 of 2010 by the Additional Senior Civil Judge, Morbi dated 29.09.2012 on the grounds stated in the memo of Appeal inter alia that the impugned order is contrary to the provisions of Order VII, Rule 11(a) of the Civil Procedure Code, 1908. It is contended that the Court below has committed jurisdictional error in passing the impugned order. It is contended that the Court below has failed to appreciate that while exercising power under Order VII, Rule 11 of the Civil Procedure Code, the Court is required to look only plaint without any additional material and the Court has erred in considering the defence or other material. It is contended that the Court below has given direction to the District Collector, Rajkot, who is not a party to the suit to investigate into the matter and, therefore, the impugned order is erroneous.
2. Heard learned counsel, Shri S.P. Majmudar for the appellantoriginal plaintiff.
3. Learned counsel, Shri Majmudar has referred to the impugned order and pointedly emphasized the observations made in para no.6 and submitted that the Court below was not required to consider other material and documents. He submitted that the cause of action whether the right or wrong is mentioned and the Court has to consider whether the cause of action is made out or not and, therefore, the Order VII, Rule 11 of the Civil Procedure Code would not be attracted. In support of his submissions, he has referred to number of authorities including the judgment of the Hon’ble Apex Court in case of Popat and Kotecha Property Vs. State Bank of India Staff Association, reported in (2005) 7 SCC 510 and also judgment in case of Sopan Sukhdeo Sable & Ors. Vs. Assistant Charity Commissioner & Ors., reported (2004) 3 SCC 137. He has also referred to and relied upon the judgment of the Hon’ble Apex Court in case of C. Natarajan Vs. Ashim Bai & Anr., reported in AIR 2008 SC 363 more particularly para no.18 of this judgment and submitted that the contention or the issue with regard to the limitation could be decided on the basis of the evidence and, therefore, the Court below has committed an error. Similarly, he has also submitted that fraud cannot be a ground for the exercise of jurisdiction under Order 7, Rule 11 of the Civil Procedure Code and has referred to and relied the judgment in case of Sangramsinh P. Gaekwad & Ors. Vs. Shantadevi P. Gaekwad (dead) Through Lrs. & Ors., reported (2005) 11 SCC 314 and also judgment in case of Commissioner of Central Excise, Pune Vs. Kripa Chemicals (P) Ltd., reported in (2005) 1 SCC 12. He has also referred to and relied upon the judgment of the Hon’ble Apex Court in case of State of Orissa & Anr. Vs. Mamata Mohanty, reported in (2011) 3 SCC 436 and pointedly referred to para no.55 to support his submission. He emphasized that the decision cannot be based on the ground outside the pleadings of the parties. He has also referred to and relied upon the judgment of the Hon’ble Apex Court in case of Kamala & Ors. Vs. K.T. Eshwara Sa & Ors., reported in AIR 2008 SC 3174 and pointedly referred to the observations made in para no.16 and submitted that the issue on merits of the matter would not be considered at the stage of Order VII, Rule 11 and, therefore, it could not be attracted. He has also referred to and relied upon the judgment in case of State of Orissa Vs. Klockner and Company & Ors., reported in AIR 1996 SC 2140 as well as in case of Mayar (H.K.) Ltd. & Ors. Vs. Owner & Parties, Vessel M.V. Fortune Express & Ors., reported in AIR 2006 SC 1828 and submitted that only plaint has to be seen and not other evidence. He has also relied upon the judgment of the Hon’ble Apex Court in case of Alka Gupta Vs. Narender Kumar Gupta, reported in (2010) 10 SCC 141 (Head Note – J).
4. Though the submissions have been made at length referring to various authorities, it is well accepted that the authorities and the observations made have to be considered in background of the facts of each case and it has to be read in the context of the discussion made in the judgment.
5. The first aspect, which is required to be considered, is the Order VII, Rule 11 of the Civil Procedure Code and the scope for exercise of discretion for rejection of the plaint under Order VII, Rule 11 of the Civil Procedure Code. However before that brief facts which have also discussed in the impugned order are required to be considered. As it transpires from the impugned order itself, the appellantoriginal plaintiff is claiming right on the land in question based on Lekh/writing by his highness Maharaja Lakhdhirsinhji Bahadursinhji on 31.10.1947 without bringing it on record. In fact the disputed plots of land were actually allotted to one Bhanaji Jadavji Kansara by his highness Maharaja Lakhdhirsinhji Bahadursinhji on 31.10.1947 and copy of which is also available on the record of the office of Morbi. Therefore on one hand, the writing, which is claimed by the plaintiff is based on Lekh No.139 dated 06.05.1949, however, no such document is available on record. On the other hand, another Lekh in favour of another person is found on record. It is in this background, the discussion has been made at length by the Court below and there is also discussion about amalgamation in Saurashtra State and the Saurashtra State executed sale deed in favour of some other person. There is also specific finding that three documents create cloud of suspicion on the claim made by the plaintiff and there is discussion as to possession of the disputed plots from 1947 to 2010 in the record of City Survey Office. It is in this background, the aspect of silence and delay has been considered. Having considered this, the discussions have been made in para no.10 and it has been observed that the property would vest in the Government. It is in this background, the direction has been given with a clear cut finding that taking the plaint of the appellantplaintiff at the face value, no cause of action can be said to have been even prima facie supported by any material or evidence. The submission, which has been made with much emphasis that the Court has misdirected in exercise of discretion under Order VII, Rule 11 of the Civil Procedure Code and also required to see plaint only for cause of action for the purpose of Order VII, Rule 11 of the Indian Penal Code, is required to be considered.
6. Therefore, whether the cause of action is to be found prima facie or not has to be gathered while considering the claim of the appellantplaintiff. The Court would be justified in examining the plaint prima facie for the purpose of deciding the claim made by the plaintiff and if it is not supported by any material and if there is any other material purpose or hidden motive, the Court would be justified in making some scrutiny. It cannot be said that the Court has considered the evidence. In fact the Court is required to examine the plaint visavis the material produced and has to first find out with regard to the claim whether it is prima facie made out or whether the claim made by the plaintiff is genuine or it is not genuine but it is frivolous etc. It is in this background, the observation made by the Hon’ble Apex Court in a judgment in case of T. Arivandandam Vs. T.V. Satyapal & Anr., reported in AIR 1977 SC 2421 is required to be considered, which reads as under : “The learned Munsif must remember that if on a meaningful – note formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII R. 11, C. P. C. taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under O. X, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage.”
7. It is also further observed referring to George Bernard Show remarked on the assasination of Mahatma Gandhi that “It is dangerous to be too good”.
8. Further, the Hon’ble Apex Court in a judgment in case of Sopan Sukhdeo Sable (supra) again referring to the scope under Order VII of the Civil Procedure Code has clearly observed as under: “Order 7 Rule 11 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 – the trial court can exercise the power at any stage of the suit, that is, before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial – and also does not say in express terms about the filing of a written statement. ................ Order 7 Rule 11 casts a duty on the court to perform its obligation in rejecting the plaint when the same is hit by any of the infirmities provided the four clauses of Order VII, Rule 11.
9. The observation has been made that the basic question to be decided while dealing with an application filed under Order 7 Rule 11(a) CPC 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 around Order 7 Rule 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 sue, it should exercise the power under Order 7 Rule 11(a) 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 10 of the Code. It is true that by ingenious drafting a cause of action in the nature of red herrings cannot be brought into the judicial arena.
10. Thus, the Hon’ble Apex Court has referring to the provisions of Order 7 Rule 11 emphasized with regard to meaningful reading with material to ascertain and see whether genuinely cause of action is made out or not. It has also been served that word ‘shall’ is used, which implies that it also castes a duty on the court to perform its obligations in rejecting the plaint when it suffers from the infirmities. The discussion is also made with regard to the particulars and material facts. Moreover in this very judgment, reference is made to the material facts and particular and quoting from earlier judgment of the Hon’ble Apex Court in case of Samant N. Balkrishna Vs. George Fernandez, reported in (1969) 3 SCC 238, it has been observed that “The words ‘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.” Thus, it is necessary for the plaintiff, who comes forward with the plaint making out prima facie case that it should be supported with some material and mere assertion would not by itself sufficient without any other material. In the facts of the case though a claim is made based on Lekh of 1949, it is not produced nor it is found in the revenue records, which has been discussed at length by the Court below. Therefore, it cannot be said that the impugned order is erroneous or there is any jurisdictional error. Therefore, the submission made by learned counsel, Shri Majmudar is misconceived.
11. Therefore, present First Appeal deserves to be dismissed and accordingly stands dismissed.
12. In view of dismissal of main First Appeal, Civil Application for stay does not survive and stands disposed of accordingly.
Sd/ (RAJESH H. SHUKLA, J.) Gautam