Dismissals for abuse of process are impermissible without considering claims of ownership and associated factual disputes, necessitating full trial for resolution.

JUDGMENT :

Jitendra Jain, J.

1. This appeal is filed challenging an order dated 28 June 2007 whereby Suit No.3325 of 2005 was dismissed by the learned Single Judge on the ground that filing of such suit amounts to abusing the process of law.

2. The appellants were the original plaintiffs in Suit No.3325 of 2005. The said suit was filed by the guardian since the original plaintiffs were minors. The suit was filed for declaration that the plaintiffs be declared as co-owners of the suit property to the extent of their shares along with defendant nos.1 to 7 and further declared that the original defendants nos.8 to 15 are not entitled to attach or sale the suit property in the proceedings arising out of loan borrowed by the original defendant no.1.

3. After the suit was instituted, the original plaintiffs filed a notice of motion seeking interim relief. The said notice of motion was numbered as ‘3907 of 2005.’ At the hearing of the said motion, the learned Single Judge observed that the plaintiffs do not have any right, title or interest in the suit property and the suit has been filed only to delay the recovery of loan taken by defendant no.1 thereby abusing the process of law and, therefore, dismissed the suit itself.

4. Mr. Almeida, learned counsel for the appellants, submitted that in the suit, a specific averment has been made that the suit property is a HUF property in the hands of the plaintiffs and defendant nos.1 to 7 and, therefore, they have a locus to file the said suit. In the plaint, it is specifically averred that defendant no.1 in collusion with the officers of defendant nos.8 to 15 have fabricated various documents for obtaining the loan and, therefore, the loan transactions are not legal transactions which can be enforced in law. There is also a specific averment in the plaint that without original deposit of original title deeds, no legal mortgage could have been created by defendant no.1. It was on the basis of this averment that the learned counsel for the appellants submitted that the observation made in the impugned order that original plaintiffs have no right, title or interest is erroneous. He further submitted that none of these averments have been considered in the impugned order. He submitted that the learned Single Judge was not justified in dismissing the suit at the threshold while hearing the notice of motion on the ground that the appellants have no right, title or interest in the property. He submitted that the issue of right, title and interest of the original plaintiffs and the act of fraud averred in the plaint would be a subject matter of trial by leading evidence. He, therefore, submitted that the impugned order be set aside.

5. Mr. Ghosalkar appearing for respondent no.1 submitted that only an averment in the plaint is not enough for asserting the right, title or interest in the property. Similarly, he submitted that merely making an allegation of fraud in the plaint would not entitle the plaintiffs to challenge the recovery proceedings. He submitted that no prima facie case was made out by the original plaintiffs and, therefore, the learned Single Judge was justified in dismissing the suit on the ground of abuse of process of law. The learned advocate for respondent no.1 relied upon the decision of the Supreme Court in the case of Uttam Vs Saubhag Singh and Ors., (2016) 4 SCC 68 . He, therefore, prayed for dismissal of the appeal.

6. We have heard learned counsel for the appellants and the respondents. The impugned order appears to have been passed in exercise of inherent jurisdiction under Section 151 of the Code of Civil Procedure, 1908 (CPC). Admittedly, none of the respondents had filed any application under Order