Skip to content


Bhagwan Das Vs. Goswami Brijesh Kumarji and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 117 of 1982
Judge
Reported inAIR1983Raj3; 1982()WLN474
ActsCode of Civil Procedure (CPC) , 1908 - Order 7, Rule 11; Rajasthan Public Trusts Act, 1959 - Sections 38
AppellantBhagwan Das
RespondentGoswami Brijesh Kumarji and ors.
Appellant Advocate B.N. Calla, Adv.
Respondent Advocate R.L. Maheshwari, Adv.
DispositionPetition allowed
Cases ReferredIn Ranjeet Mal v. Poonam Chand
Excerpt:
.....into consideration. - it was urged on behalf of the opposite party that under section 38 the assistant commissioner could give permission or direction to a person to file an application before the court only after giving the working trustees an opportunity of being heard and as it did not appear from the face of the application as well as from the order of the assistant commissioner, devasthan that any such opportunity was given to the opposite party of being heard, the permission given by the assistant commissioner to bhagwandas by his order dated 24-11-1981 was invalid or void and no application could be maintained by bhagwandas before the learned district judge, on the basis of such an invalid permission given by the assistant commissioner. if the argument of the learned counsel..........argued by the learned counsel for the opposite party that at the stage of deciding whether the plaint (application under section 38 of the act filed before the learned district judge) discloses a cause of action or not, the court should proceed to decide the question as to whether the working trustee was given an opportunity of hearing or not and thereby decide the question of the alleged invalidity of the permission granted by the assistant commissioner to bhagwandas under section 38 of the act. if the argument of the learned counsel for the opposite party is accepted, then all questions of law and fact, which relate to the validity of the permission granted by the assistant commissioner to bhagwandas under section 38 of the act, including the question as to whether the working.....
Judgment:
ORDER

Dwarka Prasad, J.

1. In this revision petition, the only question which arises is with regard to the scope of Clause (a) of Order 7, Rule 11, C. P. C.

2. Order 7. Rule 11, C. P. C., so far as it is relevant for the present case, reads as under :--

'Order 7. Rule 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.

3. The argument of the learned counsel for the petitioner is that the question as to whether the plaint discloses a cause of action or not for the purposes of Clause (a) of Order 7, Rule 11, C. P. C. should be decided on the face of the averments made in the plaint. On the other hand the argument of the learned counsel for the non-petitioner is that not only the plaint but the documents filed along with the plaint should be looked into to determine the question as to whether the plaint discloses a cause of action or not. The learned District Judge held that the plaint did not disclose any cause of action and rejected the plaintiff's application filed under Section 38 of the Rajasthan Public Trusts Act, 1959 (hereinafter called 'the Act'). Under the aforesaid provision, a person having interest in a public trust or otherwise, may apply to the Assistant Commissioner, Devasthan Department for permission to apply to the Court for directions and if such an application is made, then the Court shall proceed in accordance with the provisions of Section 40 of the Act. It is not in dispute in the present case that the petitioner Bhagwandas submitted on application before the Asst. Commissioner seeking permission under Section 38 of the Act and that by the order dated 24-11-1981 the Assistant Commissioner granted permission directing Bhagwandas to apply to the Court for such directions, as the Court may give according to Section 40. Bhagwandas submitted an application on 4-12-1981 before the learned District Judge. The opposite party objected to the maintainability of the application filed by Bhagwandas under Section 38 of the Act on the ground that it did not disclose any cause of action. It was urged on behalf of the opposite party that under Section 38 the Assistant Commissioner could give permission or direction to a person to file an application before the Court only after giving the working trustees an opportunity of being heard and as it did not appear from the face of the application as well as from the order of the Assistant Commissioner, Devasthan that any such opportunity was given to the opposite party of being heard, the permission given by the Assistant Commissioner to Bhagwandas by his order dated 24-11-1981 was invalid or void and no application could be maintained by Bhagwandas before the learned District Judge, on the basis of such an invalid permission given by the Assistant Commissioner.

4. Now, what the learned counsel for the opposite party urges is that while looking into the averments made in the plaint, for the purpose of determining the question whether the plaint discloses a cause of action or not, the document, namely, the order passed by the Assistant Commissioner dated 24-11-1981 should also be looked into. Not only that the said document should be looked into, but it is further argued by the learned counsel for the opposite party that at the stage of deciding whether the plaint (application under Section 38 of the Act filed before the learned District Judge) discloses a cause of action or not, the Court should proceed to decide the question as to whether the working trustee was given an opportunity of hearing or not and thereby decide the question of the alleged invalidity of the permission granted by the Assistant Commissioner to Bhagwandas under Section 38 of the Act. If the argument of the learned counsel for the opposite party is accepted, then all questions of law and fact, which relate to the validity of the permission granted by the Assistant Commissioner to Bhagwandas under Section 38 of the Act, including the question as to whether the working trustee was given an opportunity of hearing or not and whether the person who submitted the application before the Assistant Commissioner had any interest in the public trust or not and the like questions, should also be determined before the plaint could be entertained, as disclosing a cause of action.

5. It may be observed that the plea that there is no cause of action for filing the suit is very different from the plea that the plaint does not disclose a cause of action. What the learned counsel urges is that there was no cause of action for filing the suit, as the permission given by the Assistant Commissioner, which is a condition precedent to the filing of an application under Section 38 before the learned District Judge, was invalid or void. But what Order 7, Rule 11, C. P. C. postulates is that at the preliminary stage the Court is only to see from the averments made in the plaint as to whether, on the face of such averments, a cause of action is disclosed or not. As the question which has been raised by the learned counsel relates to the invalidity of the permission granted by the Assistant Commissioner it may raise a question of law or a mixed question of law and fact for determination. It may be open to the petitioner to show that a notice or an opportunity of hearing was given to the opposite party by the Assistant Commissioner. Alternatively, it could be urged that once a person was granted permission by the Assistant Commissioner to seek directions from the Court, then it was not necessary to give fresh opportunity of hearing to the working trustee while granting permission to another person in respect of the same cause of action. In any view of the matter, the question which is to be determined at the present stage of the case is as to whether the plaint discloses a cause of action or not and at such a preliminary stage it cannot be decided as to whether the permission given by the Assistant Commissioner to Bhagwandas under Section 38 of the Act is valid in law or not.

6. Learned counsel for the opposite party relied upon a decision of the Madras High Court in Nithayya Thevar v. Subramaniam Ambalakarar, (1970) I Mad LJ 400. wherein it has been held that if the suit appears from the statement made in the plaint to be barred by limitation, the plaint may be rejected and if the suit is based on a document, in that case a pronote then it would be artificial to divorce the said document from the plaint and to contend that the document, which is filed along with the plaint and forms basis of the plaint, should not be looked into by the Court. It was held in that case, while deciding an application under Order 7, Rule 11, C. P. C. that the suit prima facie appeared to be barred by limitation and that the document, which was the basis of the suit and was filed along with it should also, be looked into. In that case, there was some difference between the English and the Tamil dates given in the plaint and it was held that in such circumstances it was open to the Court to rely upon the date given in the document, a pronote, which formed basis of the suit and was produced along with the plaint.

7. Learned counsel for the opposite party may be right in urging that if the plaint is based on a document, then such a document may be considered as forming part of the plaint itself and the document can also be looked into, while considering the averments of the plaint, for the purpose of deciding the question that the plaint discloses a cause of action or not. But it has to be remembered that the averments made in the plaint as well as the contents of the document which may constitute part of the plaint, can be looked into on the face value thereof and the question relating to the validity or invalidity of the document cannot be considered at the stage of deciding an application under Order 7. Rule 11, C. P. C.

8. In the present case, the Assistant Commissioner passed an order dated 24-11-81 permitting Bhagwandas to file an application under Section 38 of the Act before the learned District Judge. Now, the argument of the learned counsel could be very well understood, if it was urged that the permission was given by the Assistant Commissioner to somebody else and not to Bhagwandas or that Bhagwandas filed the application under Section 38 of the Act before the learned District Judge beyond the period of 30 days. In such an event the order of the Assistant Commr. could have been looked into and the question could have been answered by a bare look at the said document. But objections relating to the validity of the order passed by the Assistant Commissioner on 24-11-81 cannot be heard and determined at the stage of deciding an application under Order 7. Rule 11, C. P. C.

9. Their Lordships of the Supreme Court in T. Arivandandam v. T. V. Salyapal. AIR 1977 SC 2421 held that (para 5) :--

'If on a meaning -- 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 VII, Rule 11. C, P. C, taking care to see that the ground mentioned therein is fulfilled. And if clear (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.'

10. The observations made by their Lordships of the Supreme Court in the aforesaid case were made in the context that mere vexatious actions should not be entertained merely because of clever drafting of the plaint or merely because of camouflage. A person who has no claim whatsoever should not be allowed to harass the opposite parties by dragging them into a fruitless litigation.

11. In Ranjeet Mal v. Poonam Chand (Civil Revision Petition No. 201 of 1982 decided on July 21, 1982): (reported in AIR 1973 Raj 1) it was held that all questions of law raised by the defendant about the maintainability of the suit could not be considered at the stage of deciding thc question as to whether the plaint discloses a cause of action or not. All questions of fact or law raised by either party and denied by In: other party, should be made subject matter of an issue as provided in Order 14, Rule I. Civil P. C. It may be that legal issues may be decided by the Court before proceeding with the trial of issues of fact, but at the initial stage of Order 7, Rule 11, C. P. C. the question whether actually according to law the suit was maintainable or not cannot be decided.

12. In the aforesaid view of the matter, I am unable to agree with the learned District judge that the plaint does not disclose any cause of action. The question relating to the validity at the permission granted by the Asstt. Commissioner under Section 38 of the Act can certainly be raised by the opposite Party in his written statement and the same may be decided as a preliminary issue, but the application cannot be dismissed at this stage on the alleged ground that the averments made therein disclose no cause of action

13. On the result, the revision petition is allowed. The order passed by the learned District Judge dated 26-2-82 is set aside and the learned District Judge is directed to proceed with the application filed by Bhagwandas under Section 38 of the Rajasthan Public Trusts Act, 1959, in accordance with law.

14. The parties are left to bear their own costs of revision petition.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //