The power to strike out a plaint as an abuse of the process of the Court is one that must be exercised with utmost caution and only when the Court is absolutely sure that the plaintiff does not have an arguable case at all.

JUDGMENT - V.V. VAZE, J.:---'To no man we shall deny justice', promised King John at Runnymede, beside the River Thames, on 14th June, 1215 which promise along with others became the great Chapter of English liberty. The spacious promise drafted in general terms opened the doors of the English Court to each and every person but like all over-inclusive promises, this one from the Monarch could flood the courts with frivolous and vexatious claims resulting in the abuse of the process of Court. To stem such a possible tide, the courts of Record assumed to themselves certain powers to block at the early stages plaints which if allowed to proceed to trial would result in abuse of the process of the Court which power was continued by Article 215 of the Constitution as respects High Court. It is one such exercise of the power to order a plaint to be struck out that forms the subject matter of this appeal.

2. Munchershaw Pherozeshaw Mistri was one of the Settlers as well as a Trustee of a Deed of Settlement dated 17th March, 1951. His son Bomi Munchershaw Mistry-the plaintiff-appellant claims to be the beneficiary and a reversioner in reminder of a moiety share of the corpus of the trust and in view of deaths of various other persons mentioned in the Deed of Settlement, now claims that the corpus of the Trust property and estate has become divisible between the heirs of Munchershaw Pherozeshaw Mistri viz., Bomi Mistry (himself), Shernavaj Munchershaw Mistri and Geeta (alias Dhun) Hari Chainani.

3. C.S. No. 2/590 and C.S. No. 2A/590 of Malabar and Cumballa Hill Division as the distinctive sub-dividing alphabet A suggests belonged to one owner, Ratanchand Hirachand. C.S. No. 2-A/590 was purchased by a Trust created by the Deed of Settlement on which stands a building known as “Maneck Abad”. Formerly on C.S. No. 2A/590 existed a bungalow known as 'Ratan Villas Bungalow', out houses, servant quarters and garages. The height of the garages was about 13 feet 1½ inches Ratanchand Hirachand the original owner of C.S. No. 2/590 sold the former property by a Conveyance dated 20th March, 1951 to Munchershaw P. Mistry and the Trustees of the Deed of Settlement. Ratanchand Hirachand covenanted not to build any structure at any time higher than the existing garages, on his remaining land. Later on, i.e. on 31st March, 1967 the remaining property which later on was numbered C.S. No. 2A/590 as well as C.S. No. 2/590 was sold to Kesharwani Co-operative Housing Society. Bomi Mistry discovered that the Society which has purchased the adjoining land has encroached upon a strip of land shown in yellow hatch line on the map Exhibit 'B' and filed Suit No. 891 of 1970 in the Ordinary Original Civil Jurisdiction of this Court, making the Society, the Trustees of the Deed of Settlement and other heirs of Munchershaw Mistry as party defendants.

4. Thereafter Bomi Mistry filed Suit No. 942 of 1973 (in which the present Notice of Motion was taken out) in this Court in its Ordinary Original Civil Jurisdiction against the Society. A receiver was appointed by this Court in another Suit No. 304 of 1954 filed by Ratanchand Hirachand the vendor of the Conveyance dated 20th March, 1951 by which C.S. No. 2-A/590 was sold to the Trustees of the Deed of Settlement and one Zaveri who had acted as a confirming party of a Conveyance purporting to be dated 31st March, 1967 executed by one Lalchand Hirachand in favour of the Society. Bomi Mistry alleges in Suit No. 942 of 1973 that the Society is not entitled to build in breach of the covenant limiting construction to a height of 13 x 1 1/2 ", and alleges that a Conveyance actually executed in November 1967 was fraudulently ante-dated to 31st March, 1967 with a view to evading payment of capital gains tax. Plaintiff Bomi Mistry apprehends that the Conveyance dated 31st March, 1967, if left outstanding, will cause him serious injury and cast cloud upon and impair the title of the trust property and prayed that the Conveyance may b

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