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Supreme Court of India
C.K. THAKKER & D.K. JAIN
Abdul Gafur & Another
Versus
State of Uttarakhand & Others
Civil Appeal No. 4982 of 2008 (Arising out of S.L.P. (C) No.8622 of 2007)
Decided on: 11-08-2008
Civil Procedure Code, 1908 - Order 39, Rules 1 & 2 - Land Acquisition Act, 1894 - Section 4 - Construction of public road - Frivolous claim - Leave granted appeal by special leave is directed against order passed by High Court of Uttarakhand in Writ Petition whereby two suits filed by the appellants for perpetual injunction have been dismissed limine - Necessary for the disposal of this appeal are gazette Notification was issued under Section Land Acquisition for short for acquiring land belonging to one Tek Chand respondent herein for construction approach road for Himalayan Institute Hospital Trust Dehradun respondent hereinafter referred as Hospital - Tek objected to said acquisition - In meanwhile alienated part of said land in favour appellants way of gift deeds - Gazette notification Section was published –Held, Court shall have jurisdiction try all suits civil nature excepting suits of which their cognizance is either expressly or impliedly barred - To put it differently per Section of Code all types of civil disputes civil courts have inherent jurisdiction unless part that jurisdiction is carved out from such jurisdiction expressly or by necessary implication by any statutory provision and conferred on other Tribunal or Authority - Thus law confers on every person an inherent right to bring suit of civil nature of ones choice at ones peril howsoever frivolous the claim may be unless it is barred by a statute Court is convinced that plaint read as whole does not disclose any cause of action, it may reject the plaint in terms Order Rule Code - As matter as observed if on meaningful - Not formal -reading plaint it is manifestly vexatious and meritless in sense of not disclosing a clear right to sue court should exercise its power under said provision - And if clever drafting has created an illusion cause action it should be nipped in the bud at the first hearing by examining party searchingly under - Nonetheless remains that suit has disposed of either by the High Court or by the courts subordinate in meaningful manner as per procedure prescribed in Code and not on ones own whims - Case came up for consideration before High Court without passing any order on application preferred by appellants for recall of order - High Court dismissed suits on aforenoted ground issues raised in suits were being examined in the Writ Petition –Court have no hesitation in holding that procedure adopted by High Court is unknown law - Court are conscious of the fact that object of filing of the suits could be a dubious and indirect attempt on the part of Tek Chand respondent derive some undue advantage connivance with plaintiffs yet that was no ground to dismiss suits summarily in aforenoted manner - It must be kept in mind that one of fundamental norms of judicial process is that arguable questions either legal factual should not be summarily dismissed without recording reasoned order - A mere entertainment of Writ Petition which appellants herein were not parties even if involved determination of similar issues in our opinion was not good ground to dismiss two suits without granting opportunity to the parties prove their respective stands - Moreover scope of Writ Petition and the two suits also seems to be different - Appeal allowed
Judgment
D.K. Jain, J.
1. Leave granted.
2. This appeal, by special leave, is directed against the order, dated 29th March, 2007, passed by the High Court of Uttarakhand in Writ Petition Misc. No.272 of 2007 whereby the two suits filed by the appellants for perpetual injunction have been dismissed in limine.
3. Facts necessary for the disposal of this appeal are as follows:
On 2/28th March, 2005, a gazette Notification was issued under Section 4 of the Land Acquisition Act, 1894 (for short ‘the Act') for acquiring 0.6900 Hec. of land belonging to one Tek Chand, respondent No.4 herein, for construction of approach road for Himalayan Institute Hospital Trust, Dehradun, respondent No.3 (hereinafter referred to as "the Hospital"). Tek Chand objected to the said acquisition. In the meanwhile, on 25th May, 2005, he alienated a part of the said land in favour of appellants No.1 and 2 by way of gift deeds. Gazette notification under Section 6 of the Act was published on 16th June, 2005.
4. On 4th July, 2005, Tek Chand (respondent No.4) preferred a Writ Petition challenging the validity of Notifications under Sections 4 and 6 of the Act. It appears that on 27th March, 2006, a clarification was issued by the State Government, respondent No.1, to the effect that the possession of the passage to the Hospital shall remain with them; the Government would be making financial contribution in its construction and the public would be entitled to use the same.
5. In the affidavit filed on behalf of the Government in the Writ Petition it was reiterated that the road was not going to be used exclusively by the Hospital. Ultimately, the Writ Petition was dismissed. Special Leave Petition filed by Tek Chand against the said order was also dismissed on 15th September, 2006. Licence deed in respect of the said land was executed in favour of the Hospital on 16th November, 2006 and construction of the road commenced some time in November, 2006.
6. Apprehending that the Hospital was planning to raise a wall on both sides of the road, obstructing use of the road by the public at large, including the appellants, the appellants filed the aforementioned two suits against the Hospital and Tek Chand for perpetual injunction in the court of Civil Judge (JD), Dehradun, restraining the Hospital from raising construction of any nature in the said property. Applications under Order 39, Rules 1 & 2 of the Code of Civil Procedure, 1908 (for short "the Code") were also filed for grant of interim injunction.
7. The suits were contested by the Hospital. Taking into consideration the written statement filed on behalf of the Hospital and after hearing the parties, the trial court, by detailed orders, dated 2nd February, 2007, granted temporary injunction in favour of the appellants and restrained the Hospital from constructing boundary wall on both sides of the road in question. Being aggrieved, the Hospital, filed appeals to the court of District Judge, Dehradun. Arguments in the appeals were heard and orders were reserved.
8. During the pendency of the appeals, Tek Chand filed yet another Writ Petition on 11th March, 2007, inter alia, alleging that the acquisition was fraudulent. While entertaining the Writ Petition, exercising its power under Section 24 of the Code, vide an ex-parte order dated 20th March, 2007, the High Court transferred both the said suits as well as the civil appeals to itself in order to get the dispute settled between the parties. In the said order, the High Court directed that both the lower courts shall give notices to all the parties in the suit and the appeals, informing them that the suits and appeals stand transferred to the High Court and they were required to appear in person before the Court on 28th March, 2007. On the said order being communicated to the appellants, they filed Misc. Application No. 499 of 2007 in the said Writ Petition seeking recall of order dated 20th March, 2007.
9. When the Writ Petition came up for consideration,
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