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B. Janaradhana Bhat Vs. Lalitha - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal No. 488 of 1981
Judge
Reported inAIR1984Kant120
ActsCode of Civil Procedure (CPC), 1908 - Order 7, Rule 11; Hindu Marriage Act, 1955 - Sections 12(1)
AppellantB. Janaradhana Bhat
RespondentLalitha
Appellant AdvocateK.S. Narayana, Adv.
Respondent AdvocateI.K. Mohan Rai, Adv.
Excerpt:
.....executing court posting the case for adjudication of the claim of the respondent/objector on i.a.no.6 held, justified. - , and it was fixed for best hearing on 2-12-1986 on which date the counsel appearing for. the petitioner husband -submitted to the court that he bad no argument to advance since the court had already made up its mind to reject the petition, thereupon, the learned civil judge proceeded to pass the impugned order on 31-1-1991rejecting the petition of the husband for a decree- of annulment of the marriage. aggrieved by the said judgment and order, the petitioner-husband has instituted like above appeal before this court. it is dangerous to be too good. section 12(1)(c), hindu marriage act, clearly provides for declaring the marriage a nullity on the ground that the..........by the husband is directed against the judgment and order dated 31-1-1981 passed by the i addl. civil judge, mangalore, in m. c., no. 9/78 on his file, dismissing the petition under 0. 7. r. 11, c p. c.2. the husband instituted a petition for obtaining a decree that his marriage with the respondent in the petition was, a nullity as the respondent was -suffering from unsoundness of- mind and that. the marriage was brought about by practicing fraud on him by concealing such fact.3. the case was registered at m. c no. 9/78 and notice was served on the respondent. on entering appearance for counsel filed , the statement, of objection and there after the matter was fixed a evidence. it was adjured from time to time for adducing evidence. on -30-9-1980 the husband's evidence was commenced.....
Judgment:

1. This appeal by the husband is directed against the judgment and order dated 31-1-1981 passed by the I Addl. Civil Judge, Mangalore, in M. C., No. 9/78 on his file, dismissing the petition under 0. 7. R. 11, C P. C.

2. The husband instituted a petition for obtaining a decree that his marriage with the respondent in the petition was, a nullity as the respondent was -suffering from unsoundness of- mind and that. the marriage was brought about by practicing fraud on him by concealing such fact.

3. The case was registered at M. C No. 9/78 and notice was served on the respondent. On entering appearance for counsel filed , the statement, of objection and there after the matter was fixed a evidence. It was adjured from time to time for adducing evidence. on -30-9-1980 the husband's evidence was commenced before the learned Civil Judge. It continued on 1-10-1980, 28-10-1980. and 4-11-1980 and it Was further, adjourned for evidence an 11-4 -1980 on which date be learned Civil Judge stopped further evidence of the petitioner and issued notice to the petitioner why his petition should not be dismissed under 0. 7, Rule 11, C. P. C., and it was fixed for best hearing on 2-12-1986 on which date the Counsel appearing for. the petitioner husband -submitted to the Court that he bad no argument to advance since the Court had already made up its mind to reject the petition, Thereupon, the learned Civil Judge Proceeded to pass the impugned order on 31-1-1991rejecting the Petition of the husband for a decree- of annulment of the marriage. Aggrieved by the said judgment and order, the petitioner-husband has instituted like above appeal before this Court.

4. The learned counsel for the appellant submitted that the learned Civil Judge was not justified in stopping the evidence of the petitioner-husband and proceedings to but on the question of rejection of the petition under Order 7, Rule 11, C P. C. and in rejecting the petition.

5. The sole point, therefore, that arises for out consideration in, this appeal is : Whether the learned Civil Judge. was justified in rejecting the plaint at that stage under 0. 7. R. 11,C. P.C.?

6. Order 7, Rule 11, C. P. C. reads:

'Rejection of plaint :

The plaint shall be rejected in following cases:- (1) (a) Where it does not disclose a cause of action

(b) & (c)...............'

A proviso is also added to this Rule by the Amending Act of 1976.

7. Thus, it is obvious by reading 0. 7. R.11, C. P. C., that a plaintiff shall be rejected among other, things where it does not disclose a cause of action. There is difference of opinion as to the stage at which the plaint should be rejected among different High Courts. In Sadhu v. Dhirendra Nath : AIR1928Cal425 , it is held that it is the duty of the Court under Order 7, Rule 11, C. P. C., to examine die plaint before issuing , summonses and to as certain whether any cause of action is pleaded and whether any relief is claimed against the defendants and. to determine whether the plaint should be rejected or returned for amendment. In Raman Chandra v. Gour. (AIR 1962 Assam 137). It is held that where the plaint was admitted as duty stamped the suit could not be dismissed under. this rule at the stage of, arguments on the ground that the court-fee paid insufficient.

8. In Kishore v. Sabdal ( (1890) ILR 12 All 553) it was held .that the Rule may be applied at an y state of a, suit and plaint could be rejected,: under the Rule even after it has been numbered and registered as a suit. All the same it is necessary that the Power to reject the' plaint or to return, it for amendment should ,not be exercised except in a clear case. , If there is any serious-question to be decided in the suit, proper course is to lot the suit 'proceed atleast till 'the state of written statement and discovery and then determine the matter on a preliminary issue (Vide. Secretary of State v. Golabraj.(1932) ILR 59 Cal 150equivalent to : AIR1932Cal146 . In Kalawati Devi V. chandra Prakash. : AIR1959All37 it is hold on a comparison of language of this Rule with that of Rule X, that rejection under the Rule can only be at the preliminary stage. , In Devnarayan v. State of Bombay : AIR1963Guj79 , it is laid down that the plaint cannot be rejected. after issues are framed.

9. The Supreme Court of India how Ever, in T. Arivandandam v. T. V. Satpal : [1978]1SCR742 Speaking through Krishna Iyer Judge has observed ex. cathedra thus (at P. 2423) :-

'The learned Munsiff must remember that if a meaningful - not formal - reading of the plaint, it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11, C. P. C., taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X. C. P . C. An activist Judge is this answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earlier stage. The Penal Code is also to source full enough to meet such mean. (Chapter XI) and must be triggered against them. In this case, the learned Judge to his cost, realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi.

.'It is dangerous to be too good.'

Thus, the Supreme Court of India has made it clear that if not at the stage of registering the suit, the rejection of the plaint Should be done for want of cause of action, at the first hearing of the suit. by examining the plaintiff if necessary. That does not, how ever, mean that the Court should assume the role of, a disciplinarian instead of deciding the cases on merits. The Court cannot resort to Order 7. Rule 11, C. P. C. un. less as observed by Krishna Iyer J., in. the Judgment quoted above, the plaint is. 'Ratio us and frivolous.. His Lordship, in the cast quoted above, has observed : 'We have not the slightest hesitation in, condemning the petitioner for the gross abuse of ,the process of the Court repeatedly and un.-representedly resorted to'., It is also accessory-to bear in mind, what the Madras High Court in Dr. H. D. Vira Reddi v. Kistamma AIR 1469 Mad 235 in Para 20 of the judgment has stated :

'It is an accepted canon of law as stated by, Bowen. L. J., Cropper' v. Smith, (1884) 26 Ch. D700 'Courts do not exist for the sake of discipline. but for the sake of deciding matters in controversy'.

Thus. while remembering that(O. 7, R. 11 C. P; C., provides for rejection of a plaint where it does not, when meaningfully read, disclose any cause of action. it, is necessary also to remember that under the guise of acting under Order 7, Rule 11, C. P. C., the Court. should not make short working of a suit by rejecting the plaint, acting merely as a disciplinarian rather than as a Judge without carefully applying its mind meaningfully, to find out whether any cause of action is revealed in the plaint.

10. Adverting to the facts of the present can, the plaint does reveal a cause of action. Section 12(1)(c), Hindu Marriage Act, clearly provides for declaring the marriage a nullity on the ground that the consent of the petitioner for the marriage was taken by force or fraud; as to the nature of the ceremony or as to. any material fact and circumstances concerning the respondent. That being so, it cannot be said that there is no cause of action in the petition and the petition is prima facie and manifestly frivolous and vexatious It is no doubt true that the burden lies heavily on the petitioner to show that the lady was suffering from insanity at the time when the marriage was proposed and the fact was concealed from him. That requires production of evidence. The learned Civil Judge, however, being over-enthusiastic to experiment the dictum of the Supreme Court of India in the case quoted above assumed the role of a disciplinarian and even before. The evidence of the husband was concluded stopped the proceeding and proceeded to conclude that what the husband stated was frivolous and vexatious and in that view he rejected the petition which is unwarranted and untenable.

11. In the result, for the foregoing reappear the appeal is entitled to succeed. The impugned judgment and order of the learned Civil Judge are hereby set aside and the matter is sent back to the trial court with a direction that the trial Court shall now afford adequate opportunity to both the parties to adduce evidence and hereafter on hearing the arguments, the learned Civil Judge shall proceed to, Judgment in accordance with law. No costs of this appeal.

12. Parties are directed to be present before the trial Court. on 12-9-1983 for taking further instructions.

13. Send back the records concerned to the trial Court forthwith.

14. Order accordingly.


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