1. This revision is from an interlocutory order passed by Shri V. S. Pyasi, 2nd Additional District Judge, on a preliminary objection raised by the plaintiff.
2. The learned trial Judge rejected the plaintiffs objection that (1) paragraphs 11, 12, 13, 14, 15, 17, 18, 19, 20, 23, 24 and 28 be struck out as being unnecessary, irrelevant and frivolous, (2) likewise, paragraphs 2 and 27 of the written statement be also directed to be struck out.
3. The plaintiff has been described as 'Singhai Karelal Kundanlal Trust, through managing trustee Balchand Malaiya''. It is averred in the plaint that the trust has been carrying on business of Kachchi Adhat (Commission agency) from October 24, 1930. By resolution dated December 28, 1972, the trust committee has appointed Bal Chand Malaiya, managing trustee to institute the present suit.
4. The defendants in their written statement disputed the plaintiffs competence to sue. They have given different reasons-It is said inter alia in paragraph 27 that the trust was cancelled by a registered deed dated March 31, 1959.
5. In the plaintiff's application to strike out these pleadings certain facts to support the plaintiffs competence to sue have been alleged.
6. It is abundantly clear that the dispute about the plaintiff's competence to sue has to be tried. It cannot be said that the defendants cannot challenge the plaintiff's competence to sue. It must, therefore, be said that the learned trial Judge was right in rejecting that part of the plaintiff's application. To that extent this revision must be dismissed,
7. As regards the second part of the plaintiffs application dated October 12, 1973, it is contended by the learned counsel for the petitioner that the question as to the refund of Sales-tax and the defendants' right of retention is a frivolous pleading, which is not available to the defendants. It is aimed at mere harassment of the plaintiff by unnecessarily protracting litigation. These paragraphs of the written statement must, therefore, be ordered to be struck out. Shri Verma learned counsel for the defendants tells me that the substance of those paragraphs is as follows: The plaintiff recovered from the defendants certain sums on account of Sales-tax which the plaintiff paid to tbe Sales-tax Department. But now the plaintiff has claimed refund of the Sales-tax from the Sales-tax Department If that Sales-tax is refunded by the Sales-tax Department to the plaintiff, the defendants will be entitled to that amount. Moreover, the defendants may be made liable to pay Sales-tax. Therefore, the defendants are entitled to retain the amount claimed in the suit.
8. It is clear from the plaint that the suit claim is in respect of two items. It is averred in the plaint that the defendant's firm purchased from cultivators in the plaintiffs Kachchi adhat (i) 31 bags of Masoor for Rs, 4748-74 on November 23, 1972 and (ii) 47 bags of Masoor for Rs. 6939.63 on November 25, 1972. The plaintiff trust paid the amount on behalf of the defendants to the cultivators (vendors). The defendants were liable to repay the amount within seven days. But they did not so repay in spite of repeated demands. Total of these two items is Rs. 11,688.37 Ps., on which the plaintiff has claimed interest Rs. 536,94 and in the result a decree for Rs. 12,225-31 Ps. Thus the suit is for re-imbursement of the amount paid by the plaintiff on behalf of the defendants in respect of two specified transactions.
9. In the impugned paragraphs of the written statements, see tor instance paragraph 15, the defendants have alleged that from the year 1963-64 to 1972-73, the plaintiff recovered from the defendants firm Rs. 18,617.88 Ps. on account of Sales-tax, This follows other allegations, the substance of which has been stated above.
10. Even according to the defen-dants' allegation, the plaintiff has merely claimed refund of Sales-tax. One does not know whether that claim will be allowed or not; or when will it be allowed. The defence is merely about the contingent expectancy, No cause of action has arisen to the defendants as yet for making any claim against the plaintiff. No demand has been made against the defendants to pay any Sales-tax. That they may become liable to pay any Sales-tax is merely an apprehension to-day, The defendants have not made any counter claim, nor have they claimed any set-off. Furthermore, the possible claim does not arise from the suit transactions. It is not the defendants' case that in respect of the said transaction, they have paid any Sales-tax to the plaintiff.
11. It is thus quite clear that the paragraphs in the written statement to which the plaintiff has taken exception do not make out any defence to the suit. The plaintiff's contention is right that this part of the pleading is unnecessary, irrelevant, frivolous and embarrassing. The only obvious purpose is to confuse and protract the trial,
12. Order 6, Rule 16 of the Code of Civil Procedure provides that the Court may at any stage of the proceeding order to be struck out or amended any matter to any pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit. This rule enables a party to apply to strike out any part of opponent's pleadings which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit. In Davy v. Carrett 1877 CD 473, it was held that although the Court of Appeal will not readily interfere with the discretion of the Court of first instance in a matter of procedure, it is its duty to exercise its own discretion as to whether a pleading is so framed as to embarrass the opposite party. In a case, therefore, where a statement of claim was in the opinion of the Court of appeal calculated to embarrass the defendants by reason of its stating immaterial facts, and setting out at great length documents which could not be material except as evidence by way of admission, it was ordered to be struck out, though amotion for that purpose had been dismissed with costs by the Court below,
13. It is clear law that where any allegation cannot offer a defence to the action and which if not struck out would unnecessarily delay the suit, it must be struck out.
14. The learned counsel for the petitioner asks my attention to paragraphs 3 and 4 of the plaint and the corresponding paragraphs 3 and 4 of the written statement and contends that the transactions and amounts due being admitted a decree should forthwith be passed on the admission under Order 12, Rule 6 of the Code of Civil Procedure. Among others, reliance has been placed on Shikar-chand v. Ran Bai, AIR 1974 Madh Pra 75 = 1974 MPLJ 126. The argument is that decree must be passed in favour of the plaintiff on the defendants' admission and the liability must not be deferred even for a day. I have no doubt that the trial court will duly consider this objection,
15. The revision is partly allowed. Paragraphs 11, 12, 13, 14, 15, 17, 18, 19, 20, 23, 24 and 28 of the written statement shall be struck out. The other part of the revision is dismissed. Parties shall bear their own costs in this revision.