A civil suit cannot be maintained for creating a right, but only for enforcing an existing right or duty or obligation.

The defendant in the suit has taken out this application seeking an order rejecting the plaint on the ground that it does not disclose any cause of action.

2. The plaintiff's case in the plaint is this. He is the General Secretary of ANZ Grindlays Bank Retired Management Staff Pensioners’ Association. He and the members of his association are former members of the Management Staff of ANZ Grindlays Bank that merged into the defendant on or about September 1st, 2002. In terms of Grindlays Bank Limited Indian Staff Pension Scheme Rules, made for implementation and operation of the Grindlays Bank Limited Indian Staff Pension Scheme Trust Deed dated December 27th, 1974, the members of the association are entitled to get pension; and on retirement from service they are getting it. Before its merger ANZ Grindlays Bank increased the rate of pension from time to time. But the defendant wrongfully failed and neglected to increase the rate of pension. Though the pension scheme does not provide for any revision, periodical or otherwise, of the pension linking it to the cost-of-living index, and pension was never increased by linking it to the cost-of-living index, by not increasing the pension periodically, linking it to the cost-of-living index, in due exercise of its discretion and power, the defendant has failed and neglected to discharge its duty and obligation. The pensioners are entitled in law to get their pension periodically revised, linking it to the cost-of-living index. Since by its inaction the defendant has thrown a cloud on their such right, they have become entitled to seek a declaration that the defendant is duty bound to revise the pension, and pay it at the revised rate, with arrears thereof.

3. Making out a case as stated in the preceding paragraph, the plaintiff prayed for leave under Order 1, Rule 8 of the Code of Civil Procedure, 1908 and sought a declaration that he and all the other members of the association are entitled to a periodical review of the rate of pension payable to them, on the basis of rise or fall of the price index. He has also prayed for the consequential reliefs.

4. Mr. Deb, Counsel for the plaintiff, has taken a preliminary objection that in the affidavit-in-support of the master's summons taking out the application the deponent thereof having not stated that she had read the whole of the plaint or part thereof, the affidavit, an incompetent one, cannot be entertained, and hence the application should be dismissed.

5. I am unable to accept the contention. While in para 1 of the affidavit the deponent has said that she made herself acquainted with the facts and circumstances of the case, in para. 3 thereof she has said, “....from the plaint it would appear that the plaintiff is asking for declaration for increasing the amount paid to him as pension not in pursuant to any right of the plaintiff to claim the same but as a benevolent gesture of the defendant bank towards its ex-employees of non-award cadre as such cannot be demanded under any law for the time being in force."

6. I agree with Mr. Sengupta, Counsel for the defendant, that these statements made by the deponent of the affidavit are sufficient to hold that she took out the application after reading the plaint and forming an opinion that it did not disclose any cause of action. Mr. Sengupta is also right in saying that such a hyper-technical objection as raised by Mr. Deb should not be entertained, especially when the provisions of Order 7, Rule 11 of the Code of Civil Procedure, 1908 cast a duty on the Court to reject a plaint in the circumstances mentioned therein.

7. According to Mr. Sengupta, the plaint does not disclose any cause of action for the simple reason that it is the plaintiff's own case that the pension scheme and the rules do not provide for any revision, periodical or otherwise, of the pension payable to the plaintiff and the members of his association, and hence the question of revising the pension, linking it to the c