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2010 (3) GCD 2387 (Guj) (DB)
Hon’ble Mr. Justice Jayant Patel &
Hon’ble Mr. Justice Bankim N. Mehta
Chandrakant Kantilal Jhaveri & Anr.
Versus
Madhuriben Gautambhai & Anr.
First Appeal No. 4676 of 2008—Decided on 19/10/2010
Civil Procedure Code, 1908 (Central Act 5 of 1908) — Order VII Rule 11 and Order VI Rules 2 and 4 — Dismissal of suit — Valid cause of action — Not disclosed — Mere using word collusion and fraud in plaint not sufficient — Dismissal upheld.
Held :
Court found that when the plaint does not disclose any valid cause of action for the relief prayed in the suit/plaint, no useful purpose would be served in entertaining the contention that the Trial Court did not consider the matter in detail on the aspects which we have considered hereinabove or that the Trial Court has not recorded proper valid reason for such purpose. We find that the present proceedings are by way of appeal and therefore appeal being continuous proceedings of the Suit, it would not be outside the jurisdiction of this Court to consider the case on the aspects other than those which are considered by the Trial Court for examining as to whether the order for dismissal of the plaint under Order VII Rule 11 can be maintained or not. We find that such being the position, as referred to hereinabove, our conclusion would be that as no averments are made in the plaint which disclose valid cause of action for the reliefs prayed in the plaint/suit. Hence, the order for rejection of the plaint has to follow under Order VII Rule 11 of the Code of Civil Procedure Code, which ultimately has been passed by the Trial Court. [Para 17]
Law Laid Down :
It is the duty of the Court to reject the plaint which does not disclose the cause of action.
Key Points: - The court held that if the plaint does not disclose a valid cause of action for the relief prayed, the order of dismissal under Order VII Rule 11 is maintainable. (!) - The assessment under Order VII Rule 11 focuses on the averments in the plaint, with the defence not normally considered at this stage. (!) - The plaint must contain material facts constituting the cause of action; mere use of words like "fraud" or "collusion" without particulars is insufficient. (!) (!) - The court may apply statutory law and case law to the averments in the plaint to determine if a valid cause of action exists. (!) (!) - If there is no proper grounding of fraud/collusion with particulars (dates, events, parties, mode), the suit can be dismissed under Order VII Rule 11. (!) (!) - The remedy under Order VII Rule 11 is available even after issues have been framed; timing does not bar consideration of such pleas. (!) - The appellate court may review aspects of the case beyond what the trial court considered, but still bound to assess whether the plaint discloses a cause of action. (!) (!) - The court emphasized the duty to reject a plaint that does not disclose a cause of action and to scrutinize the plaint and annexed documents for this purpose. (!) (!) - Pleadings must state material facts, with particulars when misrepresentation, fraud, breach of trust, etc., are relied upon. (!) (!) - If the plaint or prayers rely on transmitted documents but fail to disclose a valid cause of action, dismissal follows. (!) (!)
Jayant Patel, J.—The present appeal arises against the Judgement and order dated 03.04.2006 passed below applications Exh.19 and 23 under Order VII Rule 11 of the Civil Procedure Code, whereby the Suit has been dismissed.
2. The short facts of the case appears to be that the plaintiff (for the sake of convenience, the parties shall be referred to as per their status in the plaint or in the present appeal) filed the suit being Special Civil Suit No. 23/04 in the Court of the Civil Judge (SD) Ahmedabad Rural for a declaration that the transaction of the Sale Deeds for the land at Survey Nos. 436/1 and 436/2 at village Gota, Taluka Dascroi Ahmedabad as bogus and unauthorised and be quashed and set aside. It was also prayed that the decree be passed for cancellation of the documents referred to in Paras 3 and 4 executed in favour of the defendants 1 and 2. The third prayer in the suit was that the defendant No. 2 be directed to handover the possession of the property to plaintiff. The fourth prayer in the suit was that defendant No. 2 be restrained from transferring or alienating the property by sale, mortgage or gift in any manner.
3. The plaintiff in the said suit submitted an application Exh.5 for interim injunction to restrain the defendant No. 2 from transferring or alienating property by sale, mortgage, gift or otherwise until final disposal of the suit. The learned Judge did not grant any ex parte injunction, but passed the order for issuing notice on 04.02.2002. The defendants appeared in the suit and thereafter, the defendant No. 1 submitted an application for dismissal of the suit being Exh.19 under Order VII Rule 11 of the Civil Procedure Code. Similarly, the defendant No. 2 also submitted an application for dismissal of the suit being Exh.23 under Order VII Rule 11. Both the defendants contended inter alia that the plaintiff is the real brother of defendant No. 1 and a Power of Attorney was also executed in favour of defendant No. 1 and based on such Power of Attorney, the Sale Deeds are executed. It was also stated that the consideration of the sale of the property is transferred in the account of the plaintiff and therefore, the said fact has been suppressed.
4. The learned Judge heard the application Exh.5 for interim injunction as well as the application Exh.19 and 23 for dismissal of the suit under Order VII Rule 11 of the Civil Procedure Code and found that the fact of execution of the Power of Attorney upon which the reliance has been placed by the defendant has been suppressed by the plaintiff in the suit and the so called communication for cancellation of the Power of Attorney is after execution of the Sale Deed. It was found by the learned Judge that the sale consideration is also transferred in the account of the plaintiff and therefore, the learned Judge found that it is not a case for grant of any interim injunction. It was also found by the learned Judge thereafter that the Suit was not maintainable under Order VII Rule 11 of the Civil Procedure Code because there is no lawful valid cause for preferring the suit and ultimately, the injunction application was rejected and the suit was also dismissed under Order VII Rule 11 of the Civil Procedure Code vide order dated 03.04.2006. Under these circumstances, the present appeal before this Court.
5. It is by now well settled that for the purpose of considering the case under Order VII Rule 11 of the Civil Procedure Code, averments made in the plaint are only required to be taken into consideration and the defence may not be taken into consideration. This Court had an occasion to consider the said aspects in the case of Maharaj Shri Manvendrasinhji R. Jadeja vs. Rajmata Vijaykunverba Wd/o. Maharaja Mahendrasinhji reported at 1999 (1) GLR 26 at Paras 14, 15, and 16, which reads as under:—
“14 Having noticed brief summary of the plaint and prayers earlier, it would be relevant to refer to the provisions of Order 7, Rule 11(a) of the CPC and the scope thereof
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