In this respect Mr. Usgaonkar has also rightly contended that preliminary issues can be framed by the Court only in two cases, namely on the ground of lack of jurisdiction and secondly on the quest ion of a bar of the suit created by any law in terms of Order 14, Rule 2(2) of C.P.C. No preliminary issue can thus be framed on the ground of non-disclosure of cause of action and the preliminary issue can be framed only on a pure question of law and not on a mixed question of law and facts. It is discretionary on the part of the Court to try any preliminary issue when an occasion arises either at a preliminary stage or at the time of the final decision on merits. I am entirely inclined to agree with this contention of the learned counsel which seems to find full support in the law.
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Bombay High Court
P.R. Sukeshwala And Another vs Dr. Devadatta V.S. Kerkar And ... on 10 August, 1994
Equivalent citations: AIR 1995 Bom 227, 1995 (4) BomCR 89, (1994) 96 BOMLR 15
Bench: . E Silva
1. The petitioners challenge in this Writ Petition under Art. 227 of the' Constitution of India the Order of the learned Civil Judge, Senior Division, Panaji, dated 10-4-1990in Special Civil Suit No. 174/89/A.
2. By the aforesaid Order the learned Civil Judge has dismissed with costs two applications made by the petitioners under O. 7, Rule 11 of Civil Procedure Code seeking the rejection of the plaint in the suit filed against them by the respondents.
3. The respondents had filed this suit for damages in respect of the petitioners' alleged negligence in making proper arrangements with regard to supply of air tickets sold to the respondents by the petitioners for a trip to foreign countries. The petitioner No. 1 is the District Sales Manager of KLM Royal Dutch Airlines based in Bombay while the petitioner No. 2 is the Manager of Air Travels Agency known as Thakkar Travel Services in, Goa.
It is the case of the respondents in the suit that they had travelled by the air flight of KLM Royal Dutch Airlines and because no proper service was rendered to them recovery of damages is required to be sought. It appears that after the petitioners were served with the summons for the purpose of filing their written statement they made, on three occasions, applications praying for adjournment to file their written statement on the ground that they had to collect information from several places to which the respondents had travelled to prepare their pleadings. The record shows that the petitioners received the summons in the month of September 1989 to file their written statement on 19-10-1989 and-the applications for adjournment are dated 19-10-1989, 6-12-1989 and 17-1-1990. On the last date the matter was adjourned by the Court for the petitioners to file their written statement on 19-2-1990. However, on that day the trial Judge was on leave and the matter was again fixed for petitioners' written statement on 10-4-1990. On that day the petitioners moved an application before the trial Court purported to be under Order 7, Rule 11 of C.P.C. for rejection of the plaint on the ground that the plaint was disclosing no cause of action against the petitioners. However, the trial Court by the impugned Order dismissed the application on the same day holding that such objection ought to have been raised by the petitioners in their written statement itself and Order 7, Rule ! 1 could not be invited by them on the basis of more allegation. By the aforesaid Order the trial Court has taken no decision on the merits of the petitioners' application and the same was only found as non-maintainable.
Thus the point for consideration of this Court is to find out whether the petitioners who are the defendants in the suit could make such application under Order 7, Rule 11 even before filing of their written statement. In other words the point to be decided is at what stage such a defence can be raised by the defendants in a suit.
4. Mr. Usgaonkar, the learned counsel for the petitioners, has invited my attention to the provisions of Order 7, Rule 1 of the C.P.C., namely, its clause (e) which provides that the plaint shall contain, amongst other particulars, the facts constituting the cause of action and when it arose. The learned counsel emphasized the word "shall" used in the provision and submitted that the same suggests that there must be an express cause of action pleaded by the plaintiff in the plaint. My attention was also drawn to Rule 11(a) of the said Order 7 which reads as follows:--
"Order 7, Rule 11. The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action."
It was urged by the learned counsel that here also the word "shall" has been used by the Legislature which points out to the fact of the rejection of the plaint in case the cause of action is not disclosed being mandatory and has to be ordered by the Court itself suo motu thus casting a duty on the Courts to examine the plaint and reject the same in all four cases as provided in Clauses (a), (b), (c) and (d) of the said Rule 11. The learned counsel has made it clear that it is a case of rejection of plaint and certainly not of dismissal of the suit and Rule 11 did not carve out any restriction or lay down any limitation as to at what stage such rejection ought to be made. It does not say that such objection shall be raised by the defendant only while filing the written statement. The learned counsel contended that Rule 11 is included in Order 7 which deals with the plaint and not with the written statement. A perusal of Rule 11 would show that the trial Court suo motu can reject the plaint if any of the predicates of Rule 11 are satisfied and also that this rejection can be done at the instance of the defendant who while doing so is only alerting or assisting the Court to seek a specific compliance of the legal requirements.
5. There is considerable merit in this submission of the learned counsel. A bare reading of Rule 11 of Order 7 shows chat this is a provision which enables the defendant to raise like a preliminary objection against the very maintainability of the suit on account of a formal defect of the plaint consequent upon the lacking of a substantial requirement prescribed by the law for the purpose of drafting a plaint in a suit. The defendant appears thus entitled by virtue of the said provision to raise the objection even before he chooses to contest the suit by leading his defences against the plaintiff. As rightly submitted by Shri Usgaonkar in doing so the respondent is only bringing to the notice of the Court that the plaint suffers from a fatal infirmity with regard to a requirement which the plaintiff was expected to include in his plaint so as to make it maintainable in the eye of law. This being the position it is obvious that Rule 11 of Order 7 lays down an independent remedy made available to the defendants to challenge the maintainability of the suit itself irrespective of his right to contest the same on its merits by filing his written statement. It thus stands to reason that the defendant is bound to file his written statement only in case his application under Rule 11 of Order 7 is not allowed by the trial Court. The law ostensibly does not contemplate any stage wherein such type of objection shall be raised and also does not say in express terms that it should be raised along with the written statement itself. Instead by using the word "shall" the provision clearly implies that it casts a duly on the Court to perform its obligation in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11 even without intervention of the defendants. Besides, the rejection of the plaint under Rule 11 does not preclude the plaintiff from presenting a fresh plaint with the same cause of action as provided in Rule 13. On the contrary, as submitted by Mr. Usgaonkar, if objection is raised by the defendant in the written statement and the same is disposed of and rejected by the Court after framing of the issues any decision passed in this regard would amount to a decree dismissing the suit which would debar the plaintiff to file a fresh suit on the same cause of action. In this respect Mr. Usgaonkar has also rightly contended that preliminary issues can be framed by the Court only in two cases, namely on the ground of lack of jurisdiction and secondly on the quest ion of a bar of the suit created by any law in terms of Order 14, Rule 2(2) of C.P.C. No preliminary issue can thus be framed on the ground of non-disclosure of cause of action and the preliminary issue can be framed only on a pure question of law and not on a mixed question of law and facts. It is discretionary on the part of the Court to try any preliminary issue when an occasion arises either at a preliminary stage or at the time of the final decision on merits. I am entirely inclined to agree with this contention of the learned counsel which seems to find full support in the law. Besides admittedly in the instant case the petitioners' application raising objections against the plaint was not decided by the trial Court on its merits and instead they were thrown out merely on the ground that such application was not maintainable. Therefore Mr. Usgaonkar has submitted that in case the petitioners succeed in this petition a direction may be given to the trial Court to decide the application. For that matter the plaint need not be rejected at this stage and it is for the trial Court to decide whether the plaint is to be rejected or not.
6. Mr. Prabhudessai, learned counsel for, the respondents, although fairly conceding that such direction may be given if this Court takes the view propounded by the learned petitioners' counsel has however, made some grievance that the petitioners while filing the application under Rule 11, Order 7, that also after several adjournments seeking time to prepare the written statement, have only indulged in an exercise of protracting the litigation to the detriment of the respondents. It was also his grievance that the objection was not raised by the petitioners at the first available opportunity and on this count alone this Court should not interfere with the decision of the trial Judge in the exercise of its supervisory jurisdiction under Article 227 of the Constitution.
7. The argument of the learned counsel appears to be not tenable. When the law itself does not expressly provide that such type of objection should be raised by a defendant at a given time or stage of the proceedings and instead the power to seek the rejection of the plaint has been incorporated in the Code in Order 7, Rule 11 it is not permissible for the learned respondent's counsel to contend that because such objection was raised by the petitioners after several adjournments the same should have been discarded and as such no writ Would lie against an order of the Court refusing to entertain the application.
8. The learned counsel has further submitted that the petitioners were bound to file their objection against the plaint in the written statement itself because without filing the written statement it would be difficult to the Court to gather any material to make up its mind as to whether the plaint in itself would disclose or not a cause of action. According to the learned counsel the cause of action does not merely mean the joining or non-joining of the parties, the addition or deletion of the parties and regard must be had to the totality of the circumstances of the case as a whole and the relationship between the plaintiff and the defendant at the time of the filing of the plaint. It was also submitted that while ascertaining the validity of the cause of action the vinculum juris can be only applied to a series of transactions and events supported by documents attached Jo the plaint as well as on the pleadings contained therein. Therefore the maintainability of the cause of action should always be assessed with reference to the defences, if any, pleaded by the defendants in their written statement at a given stage.
9. It is difficult to appreciate the submissions of the learned counsel in this regard bearing in mind that the same may become relevant only in case the petitioners' application had been disposed of by the trial Court on its merits. Admittedly in the instant case the application filed by the petitioners was not on the ground of non-maintainability of the cause of action but instead on the ground of non-disclosure of the cause of action in terms of clause (a) of Rule 11 of Order 7, C.P.C. Being so all the submissions advanced by the learned counsel on the point are to be discarded as devoid of any substance. The further submission of Mr. Prabhudessai that any grievance relating to non-disclosure of the cause of action in the respondent plaint would amount to their raising a preliminary issue which ought to have been taken in their written statement because it is a part of their defence is also bound to be summarily rejected as it goes against the very letter and spirit of Order 13, Rule 2(2) of the C.P.C. I have already held on the basis of such provision that a preliminary issue would be only an issue of law which has to be tried as such only in respect of a point of lack of jurisdiction of the Court or with regard to a bar to the suit created by any law for the time being in force. Such defence pleas and to be raised in the written statement while an application under Order 7. Rule 11 deals only with an infirmity arising in the plaint. Therefore the right sought to be exercised by the defendant white raising the objection under the said Rule 11 cannot be equaled or held as a defence plea although it may turn into a remedy which the law enables him to avail of to challenge the plaint and indirectly the very maintainability of the suit. It was also submitted by Mr. Prabhudessai that the petitioners' application purported to have been moved by them under Order 7, Rule 11 is hit by Order 8, Rule 2 read with Rule 7. According to the learned counsel, pleadings include a plaint and written statement and Rule 2 of Order 8 specifically provides that the defendant must raise all his defences in his pleadings including the ones regarding the non-maintainability of the suit. This means that the objections against the non-maintainability of the suit must be necessarily raised in the-written statement. It was contended that an application under Order 7, Rule 11 cannot be considered either as written statement or for that matter a pleading. Similarly Rule 8 also prescribes that any ground of defence which has arisen after the institution of the suit or the presentation of the written statement claiming a set-off may be raised by the defendant or plaintiff, as the case may be, in his written statement. In other words the said Rule provides that any ground of defence subsequent to the institution of the suit must be raised by the defendant in his written statement. Therefore the learned counsel contended that the petitioners' submission that an application under Order 7, Rule 11 could be moved in lieu of the written statement, that is to say, even before the written statement was filed cannot be accepted unless this course of action was permitted in law and not on the basis of a mere inference. The learned counsel, however, conceded that such application could also be permissible on the strength of the law laid down either by the High Courts or by the Supreme Court. It was precisely on account of these practical difficulties which could arise that a Division Bench of this Court has laid down the law on this point in the case of Nishit M. Prabhu Verlekar v. Chandranath Vinayak Dhume, which according to the learned counsel is still a valid authority supported by sound reasons which therefore this Court is bound to follow as a good law.
10. Before dealing with this last submission of the respondents' learned counsel, 1 may advert to the authorities relied by Mr. Usgaonkar in support of his proposition that the remedy of Rule 11 of Order 7 is a totally independent remedy available to the defendant to challenge the plaint on account of lacking of any of the legal requirements prescribed in Rule 1 of Order 7 of C.P.C. irrespective of his right to contest the suit and that the law does not contemplate at what stage such objection should be raised or does not say that it should be raised only along with the written statement. The learned counsel has firstly invited my attention to the case of Smt. Patasibhai v. Ratanlal, (1990) 3 JT (SC) 68 which while dealing with Order 7, Rule 11 and rejection of the plaint on the ground that no cause of action was disclosed has held that mere issuance of summons by the trial Court does not require that the trial should proceed even when no triable issue is shown to arise. The question involved in the case was the maintainability of the suit which had given rise to the appeal. The appellants contended that the suit was not maintainable even on the plaint averments. The trial Court held the suit to be maintainable and the High Court dismissed the appellants' revision affirming that view. The Supreme Court, however, observed that on the admitted facts appearing from the record itself the counsel for the respondent was unable to show that all or any of the averments in the plaint disclose a cause of action giving rise to a triable issue or to dispute the inevitable consequence that the plaint was liable to be rejected under Order 7, Rule 11 on these averments. All that the counsel contended was that the Court did not in fact reject the plaint under Order 7, Rule 11 and since summons had been issued the trial must proceed. The Court then held that in its opinion it would make no difference that the trial Court failed to perform its duty and proceeded to issue summons without carefully reading the plaint and the High Court also over looked this fatal defect. Since the plaint was suffering from this fatal defect the mere issuance of summons by the trial Court did not require that the trial should proceed even when no triable issue was shown to arise because permitting the continuance of such a suit would be tatamount to licensing frivolous and vexatious litigation which should not be allowed. This ruling clearly, shows that the rejection of a plaint on account of infirmities consequent upon lacking of legal requirements is the primary duty of the trial Court and the fact of the summons having been issued makes no difference. Being a fatal defect it should be dealt With by the Court suo motu. If it is so, that is to say, if the Court itself can reject there is no need that the defendant who is alerting the Court for that purpose should do it in any written statement to be filed by him. In the instant case it is seen that the petitioners had moved their application even before the filing of the written statement and therefore this move appears to be very well covered within the purview of the ratio of the decision relied by Mr. Usgaonkar.
The learned counsel has also placed reliance in two other rulings of the Supreme Court being one in the case of Dhartipakar Madanlal Agarwal v. Shri Rajiv Gandhi, and the other in the ease of
Samar Singh v. Kedar Nath, . Although these two
decisions have been "passed in a case of Election Petition under the Representation of the People Act, however, the point adjudicated by the Supreme Court is directly on the question of the applicability of Order 7, Rule 11 of C.P.C. In the first case of Dhartipakar Agarwal, the Supreme Court has observed that it is the duty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defect. If the Court on examination of the plaint finds that it does not disclose any cause of action it would be justified in striking out the pleadings. Order 6, Rule 16 itself empowers the Court to strike out the pleadings at any stage of the proceedings. It may even be before the filing of the written statement by the defendant. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarass and delay the proceedings, the Court need not wait for the filing of the written statement. Instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the Court finds that no triable issues remain to be considered, it has power to reject the election petition under Order 7, Rule 11. Thus after striking out the pleadings, if the Court finds that no cause of action remains to be tried it would be duty bound to reject the petition under Order 7, Rule 11, C.P.C. If a preliminary objection is raised before the commencement of the trial the Court is duty bound to consider the same and need not postpone the consideration for subsequent stage of the trial.
In the case of Samar Singh, the Supreme Court again reiterated that Order 7, Rule 11 does not place any restriction or limitation on the exercise of Court's power. It does not either expressly or by necessary implication provide that power under Order 7, Rule 11, C.P.C. should be exercised at a particular stage only. In the absence of any restriction placed by the statutory provision it is open to the Court to exercise that power at any stage. The Court further observed that normally when the suit is instituted the Court has to satisfy itself that the suit is maintainable and it discloses cause of action and only thereafter the Court may issue summons to the defendant. But merely because the summons are issued the defendant's right to raise preliminary objection for rejection of plaint on the ground that it discloses no cause of action is not affected. If the plaint does not disclose any cause of action it does not stand to reason as to why the defendant or the respondent should incur costs and waste public time in producing evidence when the proceedings can be disposed of on the preliminary objection.
11. These two judgments undoubtedly appear to lay down the law on the matter to the extent that it was held that the filing of the written statement is not necessary to enable the Court to reject the plaint under Order 7, Rule 11.
12. Indeed the Division Bench of this Court in the aforesaid case of Nishit M. Prabhu Verlekar v. Chandranath Vinayak Dhume, has held that rejection of a plaint under Order 7,
Rule 11 after the summons to settlement of issues were served without the filing of the written statement is improper. In this regard the Court observed that once the summons for settlement of issues is served on the defendants they are bound to file their written statement and there is no provision whatsoever in the Code which provides that the defendant can raise any objection to the maintainability of the suit by any application before filing his defence. The Court was of the view that if by piecemeal application a defendant is permitted to take objection even assuming that such course does not contravene any provision of law it may however lead to undesirable result and the cantankerous defendant may go on filing one application after other in raising all sorts of objections and inviting the trial Court to decide those applications without filing his written statement. However, a bare perusal of this judgment indicates that the same was passed on the peculiar facts of the case, namely, the non-maintainability of the suit on the ground that the notice required to be issued under Section 281A of the Income-tax Act was defective and not in accordance with law. Admittedly none of these predicates are demanded in Rule 11 of Order 7 of C.P.C. and therefore the decision does not appear to be attracted in the instant case. Besides this ruling is to be held as overruled by the judgments of the Supreme Court cited above which in express words have made it clear that no written statement was required to be filed by the defendant so as to avail of the remedy and raise objection against the non-maintainability of the suit and seek the rejection of the plaint under Rule 11 of Order 7 of the C.P.C. Further it is also nobody's plea that in the instant case the petitioners had challenged the plaint on the ground of non-disclosure of cause of action. Thus it seems that the Bombay ruling relied by the learned respondents' counsel is not to be applied in the instant case to the extent that it has held that there is no authority in law for the defendant to make an application under Rule 11 of Order 7 when summons had been issued and therefore the defendant was bound to file a written statement once such summons had been served on him.
13. This by itself answers the last submission of Mr. Prabhudessai when he contends that the judgments of the Supreme Court relied by Mr. Usgaonkar do not overrule by implication the authority of the Bombay judgment of 1976. According to the learned counsel there is no such thing as implied overruling and the overruling must be always express or explicit. Besides there is also no question of the Supreme Court judgment overruling the Bombay judgment because the Supreme Court has not considered the Bombay judgment nor the same was placed before it. Hence Mr. Prabhudessai said that the ratio of the Bombay judgment is still to be held good in the facts and circumstances of the case. Mr. Usgaonkar has rightly joined issue with such a submission made by the learned respondents counsel. It was urged that when a decision is challenged before the Supreme Court and the same is set aside that amounts to a reversal of the decision. However, if the decision is merely cited before the Supreme Court as an authority and the Supreme Court takes a view different from the one taken by the High Court then it is a case of direct overruling.
The learned counsel argued that the doctrine of per incuriam does not apply to the Supreme Court in respect of a judgment of the High Court. Hence when any decision of the Supreme Court is against the ratio of the judgment of the High Court in that case there is an implied overruling of that decision. The learned counsel urged that it is inconceivable that when the Supreme Court lays down a proposition and there are decisions of different High Courts on the contrary out of which some of them are placed before the Supreme Court thus resulting in its overruling the remaining decisions of the High Court taking similar view of the ones which were overruled and which were not brought to the notice of the Supreme Court should be deemed as still holding a good law. In that case the learned counsel submitted that the decisions of the High Court cited before the Supreme Court shall be held as having been expressly overruled and the decisions which were not placed before the Supreme Court should be held also as impliedly overruled by the Supreme Court.
14. There is indeed a valid point in this submission by the learned counsel and therefore, in my view, I do not think that I am required to follow in this case the 1986 Bombay judgment which seems to have been clearly overruled by the aforesaid decisions of the Supreme Court relied by the learned petitioners' counsel.
15. Besides Mr. Usgaonkar has also submitted that a cause of action is always to be seen in the context of the plaint itself and on a mere perusal of its pleadings assuming that the facts averred in the pleadings are true. Therefore it is not necessary for the defendant to file a written statement nor raise an objection under Rule 11 of Order 7 since this type of objection goes to the root of the very maintainability of the suit.
16. In my judgment the submission is perfectly sound and I find myself in full agreement with the learned counsel in this regard also. In the case of Dodsal Private Ltd. v. Narmada Seaways Ltd., this Court has already held that the sustain-ability of the cause of action has to be decided on the averments made in the plaint and for the purpose of deciding whether any cause of action arises one has to treat every averment in the plaint as factually true. As such treating the plaint averments as true if they do not disclose any cause of action the plaint will have to be rejected under Order 7, Rule 11.
17. In view of the above discussion I am of the firm view that Order 7, Rules 10 and 11 come into play at any stage of the suit right from the presentation of the plaint and even after the filing of the written statement. Thus Order 7, Rule 11 of the C.P.C. confers the power to reject a plaint on certain grounds mentioned in its 4 clauses. The trial Court is always free to entertain an application from the defendants even before they file their written statement and no grievance can be made against the Court if such course of action has been followed. Therefore if such power of rejection is given to the Court even before summons are issued to the defendant the power may be used after the summons are issued and no question regarding the maintainability of an application by the defendants bringing to the notice of the trial Court any ground on which the plaint is liable to be rejected can arise. If the Court can reject a plaint suo motu and that too before admitting the plaint it certainly can do it at a later stage before the defendants have filed their written statement.
18. In the result the petition is bound to succeed and thus the Order dated 10-4-1990 of the trial Court is hereby quashed and set aside. The learned Civil Judge is directed to entertain the petitioners' application under Order 7, Rule 11 on its merits and dispose it of as per the law, at the earliest, preferably within 8 weeks from the date of the receipt of this judgment since already a long period of time has elapsed after the filing of the suit.
Rule accordingly made absolute, in the above terms with however no order as to costs.
19. Order accordingly.
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