HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

RFA No. 34/2022

CM No. 5998/2022

Khalid Yousaf

….Petitioner/Appellant(s)

Through :- Mr. Vishal Sharma, Advocate.

V/s

UT of J&K & ors.

….Respondent(s)

Through :-

Coram:

HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE

ORDER

18.10.2022

CM No. 5998/2022

For the reasons mentioned in the application, the same is allowed.

Delay of 111 days in filing the appeal is condoned.

Disposed of accordingly.

RFA No. 34/2022

1.

The appellant’s inherent right of filing a civil suit by recourse to

section 9 of the Code of Civil Procedure, 1908 has been aborted by

the Court of learned Principal District Judge, Poonch suo moto on the

very conception and inception of the suit itself which came to be filed

on file no. 13/Suit on 03.03.2022 in terms whereof the appellant

(Plaintiff) was seeking a decree for recovery of Rs. 20 lacs on

account of the fact being a victim of malicious prosecution and

harassment at the hands of the defendants/respondents in the present

appeal.

Sr.No. 65

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CM No. 5998/2022

2.

The Court of learned Principal District Judge, Poonch assumed unto

himself the prerogative of being a defendant in the suit to question

the maintainability thereof under Order 7 Rule 11 of the Code of

Civil Procedure, 1908. The Court of learned Principal District Judge,

Poonch literally carried out synthesis of the plaint of the appellant

and come to quote that the plaint is hit by Order 7 Rule 11 (a) and

(d).

3.

A bare perusal of the impugned judgment evidently shows that the

learned Principal District Judge, Poonch was not bearing

understanding much less correct understanding of the expression of a

cause of action and a case having no cause of action. Order 7 Rule

11 of the Civil Procedure Code, 1908 is meant to operate in a case

where the facts are taken as it is and still the Court is not able to find

out as to which cause of action has been disclosed even if the plaint

may be carrying the grievance of a person as a plaintiff whereas in

this case the plaint of the appellant was not only carrying the alleged

grievance of the appellant but also the relief which the appellant was

seeking against the defendants and that completed the requirement of

a plaint to initiate a suit on the basis of a cause of action

notwithstanding as to whether that cause of action will ultimately

sustain to earn a relief as prayed for by the plaintiff/appellant.

4.

The Court of learned Principal District Judge, Poonch was off the

mark in applying order 7 Rule 11 (a) of the Civil Procedure Code,

1908. Insofar as reference to Order 7 Rule 11 (d) of the Civil

Procedure Code, 1908, the Court of learned Principal District Judge,

Poonch has not at all referred to as to which provisions of law ex

3 RFA No. 34/2022

CM No. 5998/2022

facie bars the filing of a civil suit in the case by the plaintiff. Thus,

the judgment of the Court of learned Principal District Judge, Poonch

is nothing but a flight of his own fancies and as such has resulted in

non-suiting the plaintiff/appellant.

5.

In view of the above, the appeal is allowed by dispensing with the

issuance of notice to the respondents given the fact that the rejection

of the plaint had also taken place without defendants being put on

notice for appearance in the civil suit. The Court of learned Principal

District Judge, Poonch is directed to recall the suit file and admit it

for trial in accordance with the provisions of the C