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Sivananda Roy Vs. Janaki Ballav Pattnaik and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 295 of 1983
Judge
Reported inAIR1985Ori197
ActsCode of Civil Procedure (CPC) , 1908 - Sections 80 - Order 6, Rule 2 - Order 7, Rule 11
AppellantSivananda Roy
RespondentJanaki Ballav Pattnaik and ors.
Appellant AdvocateS. Misra No. 1, Adv.
Respondent AdvocateG. Rath and ;N.C. Panigrahi, Advs.
DispositionRevision dismissed
Cases Referred(T. Arivandandam v. T.V. Satyapal
Excerpt:
.....of the other established principlesof law relevant to the point under consideration. 4 in the suit) relies upon the authoritative treatise of the law of tort by winfield and folowicz where the subject has been well discussed. it is well established in law that in suit against public officer notice under this section is necessary only if the suit is in respect of any act done by such public officer, or in respect of any act purported to :be done by such public officer, in his official capacity......board and the assistant care taker, orissa state electricity board guest house, (impleaded in the suit as defendants nos. 1 to 3) had broken the promise at the instance of defendant no. 4, shri j.b. patnaik, who is the present chief minister of orissa, and the said lady, namely, smt. sebarani das, who as already stated, has been impleaded as defendant no. 5 in the suit. the plaintiff alleges that defendant no. 4 has been impleaded in the suit in his individual capacity for which notice under section 80, c.p.c. is not necessary. the plaintiff has confined his relief to re. 1/- saying that the said amount is claimed as token damage. 3. that the plaint was presented on 12-4-1983 and the court registered the suit on that very date. the suit was posted to next date, i.e. 13-4-1983, for.....
Judgment:
ORDER

P.C. Misra, J.

1. This revision is directed against an order dated 13-4-1983 passed by the Munsif, Bhubaneswar, in M.S. No. 38 of 1983. The learned Munsif has, by the impugned order, refused to admit the aforesaid suit against defendant No. 4 and directed his name to be struck of f the records, at the stage of admission of the plaint. The plaintiff, who is the petitioner in this revision challenges the legality of the said order in this revision.

2. The petitioner as plaintiff filed the aforesaid suit in the Court of the Munsif, Bhubaneswar, praying for a decree to be passedagainst the defendants jointly and severally for a token sum of Re. 1/-. The plaintiffs case in the plaint, in short, is as follows : --

(a) That the plaintiff is an Advocate who ordinarily carries on his profession at Bhubaneswar.

(b) That the plaintiff wanted to book a suite in the Guest House of the Orissa State Electricity Board (impleaded in the suit as defendant No. 1) at Bhubaneswar for 28-10-1980 for one of his friends who was scheduled to come from Balasore with his wife and two minor children and stay at Bhubaneswar on the night of 28-10-1980 from where they were to go to Puri on the next day.

(c) The plaintiff went to the Guest House for the aforesaid purpose and contacted the Assistant Care Taker of the Guest House for booking a suite for the night of 28-10-1980. The Assistant Care Taker after contacting his authorities over phone assured the plaintiff that he would get suite No. 2 of the said Guest House and took a deposit of Rs. 227- as rental for 2 days at the rate of Rs. 11/- per day. According to the plaintiff, the Assistant Care Taker did not grant any receipt acknowledging the deposit of the aforesaid amount and made the plaintiff to understand that the receipt would be granted at the time when the suite is occupied.

(d) The plaintiffs friend and his family members along with the plaintiff came to the Guest House during the night of 28/29-10-1980 for the purpose of occupying the aforesaid suite in the Guest House. At that time the Sub-divisional Officer, Revenue, Bhubaneswar, came with a lady and disclosed before an officer of the Guest House that the said lady was the guest of the Chief Minister. The S.D.O. who had accompanied the said lady had a talk to the Secretary of defendant No. 1 and the P.A. to the Chairman of defendant No. 1 over phone whereafter the suite No. 2 which was fixed to be occupied by the plaintiffs friend was opened to accommodate the said lady and the amount deposited earlier by the plaintiff was returned to him. The said lady has been impleaded as defendant No. 5 in the suit.

(e) The plaintiff alleges that he had suffered inconvenience and humiliation due to the wilful breach of the promise to allot suite No. 2 or any other suite to him and he alleges that the State Electricity Board, the Sub-divisionalOfficer, Major Buildings Sub-division, Orissa, the State Electricity Board and the Assistant Care Taker, Orissa State Electricity Board Guest House, (impleaded in the suit as defendants Nos. 1 to 3) had broken the promise at the instance of defendant No. 4, Shri J.B. Patnaik, who is the present Chief Minister of Orissa, and the said lady, namely, Smt. Sebarani Das, who as already stated, has been impleaded as defendant No. 5 in the suit. The plaintiff alleges that defendant No. 4 has been impleaded in the suit in his individual capacity for which notice under Section 80, C.P.C. is not necessary. The plaintiff has confined his relief to Re. 1/- saying that the said amount is claimed as token damage.

3. That the plaint was presented on 12-4-1983 and the Court registered the suit on that very date. The suit was posted to next date, i.e. 13-4-1983, for office note and admission of the plaint. While admitting the plaint on 13-4-83, the learned Munsif found that notice under Section 80, C.P.C. should have been sent prior to the institution of the suit or at least the leave of the Court should have been taken as per the provision of Section 80, C.P.C. in absence of which the suit was incompetent as against defendant No. 4. The learned Munsif also found that no cause of action had been disclosed in the plaint against defendant No. 4. The learned Munsif rejected the plaint so far as defendant No. 4 is concerned and directed that the name of defendant No. 4 should be struck off the cause title of the plaint.

4. Even though the learned Munsif has not referred to the provision of the law under which the plaint was rejected as against defendant No. 4, there is no dispute that the power under Order 7, Rule 11 C.P.C. was exercised in that behalf by the learned Munsif. In the impugned order, the learned Munsif has expressed that the suit abates against defendant No. 4 instead of saying that the plaint is rejected as against him. Some comments were made by the learned counsel for the petitioner that the word 'abate' is thoroughly inappropriate but much importance need not be given to this part of the argument. The word 'abatement' is more often used while dealing with the question of substitution as provided in Order 22, C.P.C. and also in connection with some other statutes where specific provision has been made for abatement of a suit, but the said word always carries its ordinary dictionary meaning at all such places to mean that thesuit is put to an end or ceased to proceed. What was really meant by the learned Munsif was that the plaint is rejected as against defendant No. 4.

5. O. 7, Rule 11, C.P.C. provides for rejection of the plaint under certain circumstances. The said rule runs as follows : --

'11. Rejection of plaint : -- The plaint shall be rejected in the following cases : --

(a) Where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law.

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.'

The learned Munsif appears to have exercised the jurisdiction vested in her by the Code in Clauses (a) and (d) of the aforesaid rule. Order 7, Rule 11, C.P.C. enumerates the particulars to be contained in the plaint. Besides the other requirements provided in the said rule, the plaint should contain the facts constituting the cause of action and when it arises. The words 'cause of action' have not been defined in the Code. What it means is well understood from the analysis made in the decision reported in AIR 1960 SC 1309, State of Madras v. C. P. Agencies. Their Lordships of the Supreme Court have referred to the decision reported in Read v. Brown, (1888) 22 QBD 128, and the decision of Brett, J. in Cooke v. Gill, (1873) 8 CP 107, which the Privy Council also referred in the decision reported in AIR 1949 PC 78 (Mohamed Khalil Khan v. Mahbub Ali Mian).In (1888) 22 QBD 128, Lord Esher M.R., defined 'cause of action' to mean 'every fact which it would be necessary for the plaintiff to prove, it traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.'

Fry L.J., agreed and said : --

'Everything which, if not proved, gives the defendant an immediate right to judgment, must be part of the cause of action.'

The aforesaid passages have received the approval of the Privy Council in AIR 1949 PC 78 and also of the Supreme Court in the decision referred to above. To put it in a concise form, the words 'cause of action' means the whole bundle of material facts which are necessary for the plaintiff to prove, in order to entitle him to the reliefs claimed in the suit. Order 7, Rule 11 requires the plaintiff to incorporate in the plaint the facts constituting the cause of action. Thus, the plaintiff has to plead all material facts upon which his right to relief is based and from which court can arrive at a conclusion in his favour.

6. Order 6, Rule 2 C.P.C. requires that every pleading shall contain and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved. Reading Order 6, Rule 2 and Order 7, Rule 11, C.P.C. together-it is clear that the words 'material facts' occurring in Order 6, Rule 2, C.P.C. with reference to a plaintiff means the facts necessary to form a complete cause of action. The language of Order 7, Rule 11, C.P.C. makes it imperative that the facts constituting the cause of action must find place in the plaint. Thus, the conclusion is irresistible that all the facts and not the evidence, which are necessary to be proved in order to entitle the plaintiff to the relief claimed must find place in the plaint. A plaint which does not conform to the aforesaid requirement can be said to be one which does not disclose a cause of action within the meaning of Order 7, Rule 11(a) C.P.C.

7. Before discussing as to whether the plaint in question discloses a cause of action against defendant No. 4. I would like to make a mention of the other established principlesof law relevant to the point under consideration.

8. The application of Rule 11 of Order 7, C.P.C. is not restricted to any particular stage of the suit. The Court may examine the plaint before admitting the same or at any time thereafter. The Supreme Court in a decision reported in AIR 1977 SC 2421 (T. Arivandandam v. T.V. Satyapal) has emphasised that the Court where a plaint is presented should exercise the power under Order 7, Rule 11, C.P.C. where on a meaningful reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue. In the language of their Lordships, where the plaint creates an illusion of the cause of action, it should be nipped in the bud. Another principle should also be kept in mind that for rejection of a plaint under Order 7, Rule 11, C.P.C, the Court should examine the plaint and no other material for finding out if the plaint discloses a cause of action.

9. As already stated, the plaintiff claims damages of Re. 1/- only from the defendants jointly and severally. In para 7 of the plaint it has been alleged that defendants Nos. 1, 2 and 3 broke their promise at the instance of defendants Nos. 4 and 5 and, therefore, all the defendants are liable to compensate the plaintiff for the inconvenience, humiliation that has been caused to the plaintiff. Thus, according to the plaintiff, the right to relief against defendants Nos. 1 to 3 is based on the alleged breach of a contract whereas defendants Nos. 4 and 5 have been sued on the allegation that defendants Nos. 1 to 3 broke their promise at the instance of defendants Nos. 4 and 5. Paras Nos. 5 and 6 of the plaint allege that defendant No. 5 came with the S.D.O., Revenue, Bhubaneswar, to the Guest House where the latter asserted before an officer of the Guest House that defendant No. 5 was the guest of the Chief Minister. He then telephoned to the Secretary of the Orissa State Electricity Board and to the P.A. attached to the Chairman of the Electricity Board whereafter suite No. 2 which was reserved for the plaintiff was opened to accommodate defendant No. 5. It is also alleged that defendant No. 5 remained in the said suite for 57 days giving her address as c/o. Chief Minister, Orissa, and did not pay the bill for her stay there, saying that the bill be sent to the Chief Minister for payment. There hasbeen no allegation as to what part was played by defendant No. 4 for breach of the promise between the Assistant Care Taker of the Guest House and the plaintiff.

10. In this revision we are not concerned with the liability of defendants Nos. 1 to 3 and defendant No. 5, if any, on account of the inconvenience and humiliation said to have been caused to the plaintiff on the breach of the alleged promise. The only question for consideration is whether there is any cause of action against defendant No. 4 in support of the relief claimed in this suit. The learned counsel appearing for the opposite party No. 1 (defendant No. 4 in the suit) relies upon the authoritative treatise of the Law of Tort by Winfield and Folowicz where the subject has been well discussed. (Vide Chapter 20 at page 478). The principles enunciated in various decisions may be summarised thus : --

(i) If one induces another intentionally and without lawful justification to interfere with a contract made between two others, the same is actionable.

(ii) The plaintiff must prove that he has suffered damage as a result of the breach of the contract.

(iii) The person who has procured the breach of contract must have acted with the knowledge of existence of the contract.

(iv) The means adopted to bring about the breach of contract may be direct persuasion or may be by indirect methods.

11. Various decisions both English and Indian were cited at the Bar in support of the principle that procurement of a breach of contract without lawful justification is an actionable wrong. The said decisions need not be discussed in detail as the learned counsel for both the parties agreed that the aforesaid principle has all through been followed by the courts in England and equally applies and has been accepted by the Courts in India.

12. Now coming to the question as to whether there is cause of action against defendant. No. 4, it may be noted that defendant No. 4 is not a party to the alleged contract nor he had the duty to ensure due performance thereof. The liability of defendant No. 4, if any, would arise only, if he has procured the breach of the contract said to have been subsisting between the plaintiff anddefendants Nos. 1 to 3. The material facts which require to constitute a complete cause of action against defendant No. 4 in this case, according to me, are as follows : --

(i) That there was a valid contract between the plaintiff on one hand and defendants Nos. 1 to 3 on the other.

(ii) Defendant No. 4 had the knowledge of the said contract.

(iii) That defendant No. 4 brought about the breach of the said contract.

(iv) That defendant No. 4 intervened directly or indirectly as a consequence of which defendants Nos. 1 to 3 did not perform their part of the contract.

13. In the plaint filed by the plaintiff there is absolutely no mention of the aforesaid material facts except a vague allegation in para 7 thereof to the effect that defendants Nos. 1 to 3 broke their promise at the instance of defendants Nos. 4 and 5 and, therefore, all the defendants are jointly and severally liable' to compensate the plaintiff. As already stated, the plaint need not plead the evidence which is necessary to prove each fact pleaded, but it must incorporate every fact which is necessary to be proved. The bald statement in the plaint that defendants Nos. 1 to 3 broke the promise at the instance of defendants Nos. 4 and 5 falls far short of the said requirement.

14. On a consideration of the materials disclosed in the plaint, I am unable to persuade myself to accept that the material facts necessary to constitute a cause of action against defendant No. 4 have been pleaded by the plaintiff. The learned Munsif was justified in rejecting the plaint under Order 7, Rule 11 C.P.C. for want of cause of action disclosed in the plaint as against defendant No. 4.

15. The other ground on which the plaint has been rejected as against defendant No. 4 is want of notice under Section 80, C.P.C. A notice under Section 80, C.P.C. is a condition precedent for a suit against the Government or against a public officer in respect of any act done or purporting to be done by such public officer in his official capacity. Admittedly, defendant No. 4 has been described in the cause title of the plaint as Sri Janaki Ballav Patnaik. As he is holding the office of the Chief Minister of Orissa, it has been so described in the cause title of the plaint. In para 9 of the plaint it hasbeen specifically pleaded that the part played by defendant No. 4 in this matter is in his individual capacity. It is well established in law that in suit against public officer notice under this section is necessary only if the suit is in respect of any act done by such public officer, or in respect of any act purported to : be done by such public officer, in his official capacity. The plaint does not allege that defendant No. 4 had procured the breach of the contract by any act done or purported to have been done in his official capacity as the Chief Minister. The learned counsel for O.P. No. 1 has argued at length that the business of the Orissa State Electricity Board is regulated under an Act and the Rules framed thereunder and the defendant No. 4 could not in his official capacity as the Chief Minister of the State, interfere in the matter of reservation of a suite by the plaintiff. I have already indicated that while considering the question as to whether the plaint should be rejected under Order 7, Rule 11. C.P.C. at the stage when it has been done in this case, the Court is not entitled to look into any other materials other than those disclosed in the plaint. As already stated the plaint does not allege that the defendant No. 4 procured the breach of the contract to which the plaintiff was a party as a public officer or by any act purporting to be done in the capacity of a public officer. I am, therefore, to hold that the plaint allegations do not make out a case where notice under Section 80, C.P.C. would be pre-requisite. Non-compliance of the requirement of Section 80, C.P.C., where it is necessary, may be a ground for rejection of a plaint under Order 7, Rule 1 l(d) C.P.C. But this is hot a case where the plaintiff can be found fault with in that behalf. I am. therefore, of the opinion that the rejection of the plaint for non-compliance of the mandatory provision of Section 80, C.P.C. is not supportable.

16. In the result, this revision is dismissed on merits inasmuch as one of the grounds on which the plaint has been rejected by the learned Munsif as against defendant No. 4 is sound in law. There would be. however, no order as to costs.


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