Dismissed

Asmat Khan Gafar Khan and Anr., v. Madina Masjid Trust and 2 Ors.

Bombay HC30 Jun 2021CRA/36/2019

Case brief

AI extract

What is this about?

Single judge of Bombay High Court at Goa dismissed revision applications challenging the trial court's refusal to reject a plaint under Order 7 Rule 11 CPC. The court held that mere expulsion of a plaintiff does not negate cause of action, and procedural issues like non-joinder or alleged defalcation are matters for trial.

What did the court decide?

Revision applications challenging the dismissal of the application under Order 7 Rule 11 CPC were dismissed. Records to be sent to trial court within two weeks.

Asmat Khan Gafar Khan and Anr., Vs Madina… — Civil Procedure and Limitation | Bombay HC (2021)

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CRA 36 2019

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IN THE HIGH COURT OF BOMBAY AT GOA

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ASMAT KHAN GAFAR
KHAN AND ANR., …...... APPLICANT

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VS

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MADINA MASJID TRUST
AND 2 ORS., …........ RESPONDENT

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 WITH
 CA/147/2019
 IN
 CRA/36/2019

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ASMAT KHAN GAFAR
KHAN AND ANR., …........ APPLICANT

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VS

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MADINA MASJID TRUST
AND 2 ORS., …....... RESPONDENTS

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Ms. Amira A. Razaq, Advocate for the Applicant.
None for the Respondents.
 CORAM: M. S. SONAK, J.
 DATE: 30th June 2021.
P. C. :

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Heard Ms. Amira Razaq, the learned counsel for the petitioner.

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2.These revision applications challenge the order below exhibit D-15 in

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Regular Civil Suit No.28/2019/D by which the petitioner's application under

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Order 7 Rule 11 of CPC came to be dismissed by the learned Trial Judge.

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CRA 36 2019

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3. Ms. Razaq submits that the impugned order is purported to have been
made on 27/5/2019. However, in reality, the said order was never made on the
said date. She points out that the record bears out this position and the record
comprises inter alia, a report called by this Court itself. She submits that from
the report it is clear that at least up to 29/5/2019 no order dated 27/5/2019 was
uploaded on the official website. She submits that this revision had to be filed on
an urgent basis even without a copy of the order, which in any case was not
uploaded because the learned trial Judge had placed the matter for hearing the
application on the injunction on 30/5/2019. She submits that as result, the
petitioner was deprived of an effective opportunity to challenge the impugned
order. She submits that it is only because the records and proceedings were called
by this Court, the injunction application could not be heard and the suit could
not proceed further. She relies on Balalji Baliram Mupade and anr Vs. State of
Maharashtra and ors. 2020 SCC Online SC 893, to submit that no Court
should pronounce orders unless the orders were, in fact, ready and reasons could
be supplied to the affected party.

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4.Ms. Razaq then pointed out that the records available indicate that the
Court Superintendent was not available on a particular date since he was on
leave and yet, the signatures of that Court Superintend appear on certain
records. She refers to the affidavit filed by Ms. Maria Lourdes Carvalho, the

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CRA 36 2019

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Advocate on record appearing on behalf of the petitioner before the trial Court
to submit that the affidavit bears out what is now submitted and this is an
additional ground to interfere with the impugned order.

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5.Ms. Razaq, on the merits of the impugned order submits that this is a
clear case where no cause of action is disclosed, but an illusion of the cause of
action is sought to be created. She elaborates by submitting that the statements
in the plaint as also the documents annexed to the plaint establish that plaintiff
nos. 2 was expelled as trustee of the plaintiff no.1 Trust. Admittedly, no
proceedings were have been taken out to question such an expulsion. Despite
the same, the plaint is sought to be filed by Plaintiff no. 2 in the name of the
trust and alleged causes of action which are entirely personal to plaintiffs nos. 2
and 3 are sought to be masqueraded, as causes of action accrued to the trust. She

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submits that this is a clear case of failure to disclose the cause of action which
entails a rejection of the plaint.

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6.Ms. Razaq submits that the bank, in respect of whom certain incidental
reliefs are applied for has not even been impleaded as a defendant to the suit.
She submits that there is an issue of defalcation of over Rs.3.00 lakhs of the trust

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property involved and despite the same, the suit is filed for the relief of
declaration and injunction and valued for only Rs.1000/-. She submits that this
is a case of undervaluation of the suit and, therefore, some opportunity could

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have first be given to the plaintiffs to value the suit correctly, failing which, the

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CRA 36 2019

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plaint was required to be rejected in terms of Order 7 Rule 11 of C.P.C.

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7. In so far as the first two contentions are concerned, the records to some

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extent bear out that possibly the order was pronounced on a particular date, but
the same was not uploaded for the next two or three days. From this, it is
possible to urge that the order in its entirety was not ready on the date on which
the same was pronounced. In terms of the ruling in Balaji (supra), this is
required to be avoided. However, the fact situation in Balaji (supra) was entirely
different from the fact situation in the present case.

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8.At times, orders are pronounced even though the final draft is may not be
ready in all respects. The Court may have reached its conclusion and even
formulated its reasoning, yet there can for several bonafide reasons, be a slight
delay between the pronouncement and the actual uploading of the order. Even
this, is required to be avoided to the extent possible. Mainly this is because the
party who is affected by the order should have an effective opportunity to
question the same before the appellate or revisional forum or by way of a writ
petition. If orders are not uploaded and reasons are not discernible, then, this
right and opportunity may, in a given case, be affected.

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9. The petitioner, in this case, was possibly justified in rushing to this Court and raising the aforesaid contentions, particularly as the application for injunction filed by the plaintiff was ordered to be taken on 30.5.2019. Ms.

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Razaq is quite justified in her submission that the petitioner ought not to have

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CRA 36 2019

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compelled to argue on the application for a temporary injunction even before
some reasonable opportunity was granted to question the impugned order dated
27/5/2019 which was not even uploaded up to 29/5/20219. As a result, the

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records and proceedings had to be called due to which, the application for an
injunction could not be taken up immediately.

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10.Having said all this at least in the facts of the present case, there is no
necessity to set aside the impugned order on the aforesaid grounds. This is
because, within two to three days, the impugned order was ultimately uploaded
on the website and made available. The petitioner was also granted liberty to
amend the petition and to raise grounds once the petitioner, obtained thee copy
of the impugned order and came to know about the reasons set out therein. This
is not a case where the order was pronounced and after some unreasonable delay,
the copy was made available as was the position in Balaji (supra)

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11.The allegation about the superintendent been on leave on a particular
date, but yet signing certain documents, according to me, are irrelevant. Based
upon such allegations, there is no case made out to interfere with the impugned
order. The two issues have no nexus with one and another. Besides, based upon
the affidavit filed by the Advocate on procedural and ministerial issues, there is
no case made out to interfere with the judicial orders. No case of prejudice has
been made out. The prejudice, if any, was on account of the slight delay in

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uploading the order. This was redressed by this court by calling records and

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CRA 36 2019

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granting the Petitioners leave to amend. Therefore, based on the material on
record and even after perusing the affidavit of the advocate on record for the
petitioner no case is made out to interfere with the impugned order based on
some allegations against the Court Superintendent.

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12.Now on the merits of this revision application, reference is required to be
made to the application under Order 7 Rule 11 of C.P.C made by the
petitioners. In paragraph 2 of this application, there is a reference to the creation
of an illusion of a cause of action. This is elaborated by submitting that plaintiff
no.2 has already been expelled as a trustee and his status, therefore, remained
under a cloud. It was urged that plaintiff no.2 was not a trustee and, therefore,
could not claim to represent the trust. On this ground, in para 2, the petitioners
had not urged, and perhaps rightly, that the plaint should be rejected. The
petitioners had urged that the suit “is totally misconceived” and is to be “
dismissed “ at the threshold.

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13.Now, there is a clear distinction between rejection of plaint at the
threshold by resort to the provisions under Order 7 Rule 11 of C.P.C and
dismissal of the suit because the same is misconceived or otherwise lacks merit.

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While considering an application under Order 7 Rule 11 of C.P.C there is no
question of the trial court dismissing the suit. At the highest, if the parameters of
Order 7 Rule 11 are satisfied, the Court can reject the plaint at the threshold.
Therefore the request to dismiss the suit was itself misconceived.

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CRA 36 2019

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14.Even if some latitude is shown to the pleadings in para 2 of the
petitioner's application, this is surely not a case where it can be said that only an
illusion of a cause of action has been created. From the reading of the plaint in
its entirety, the cause of action has been disclosed. Whether such cause of action
can ultimately be proved or not or whether based on such cause of action
ultimately the plaintiff will succeed in obtaining a decree or not are matters
which cannot be gone into while deciding an application under Order 7 Rule 11
of C.P.C. The plaint can be rejected only if the same fails to disclose a cause of
action. There is also a fine distinction existence of a cause of action and the
disclosure ofcause of action. Whether the cause of action indeed exists or not is
a matter which is to be considered after the trial. But, if there is a failure to
disclose any cause of action, then the plaint can be rejected Order 7 Rule 11 of
CPC.

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15.The plaint, in this case, has been instituted by the Trust as well as the two
plaintiffs. The issue as to whether one of the plaintiffs has been expelled or not

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or whether such expulsion is valid or not are matters which can ultimately be
decided after the trial. At this stage, there is no question of looking to the
defense which any of the defendants might have on merits. On reading of the
plaint in its entirety, it cannot be said that there is no failure to disclose a cause
of action or that an illusion of a cause of action has been created only on account

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of some clever drafting. Therefore, no case is made out for the exercise of powers

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CRA 36 2019

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under Order 7 Rule 11 to reject the plaint on the ground that there was a failure

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to disclose a cause of action or that only an illusion of a cause of action was

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sought to be created by clever drafting.

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16.The objection based upon non-joinder of the bank is not an objection
which can be gone into while deciding an application under Order 7 Rule 11 of
C.P.C. If at all, there is non-joinder of any necessary party, that might affect the
ultimate decree which will have to be made against the party which has not been
joined. However, this is not an objection that can be ordinarily for the rejection
of the plaint.

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17.The objection as regards undervaluation has already been raised in the
vaguest terms in the petitioner's application. The petitioners simply stated that
the suit has been undervalued. The only reason given for this statement was that
plaintiff no.2 had unauthorizedly withdrawn Rs. 3,12,000 from the Trust
account in the Indian Overseas Bank. There was a suggestion that such
withdrawal amounts to defalcation and therefore, the suit should have been
valued at least to the extent of Rs.3,12,230/-. Such a contention is misconceived.

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In any case, such a contention cannot be considered while deciding an
application under Order 7 Rule 11 of CPC. Such contention presupposes not
only the withdrawal of this amount but also that such withdrawal was
unauthorized and constituted defalcation. Accordingly, based on the objection

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raised, there was no question of rejecting the plaint.

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18.For all the aforesaid reasons there is no error whether jurisdictional or

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otherwise in the impugned order made by the learned trial Judge dismissing the
petitioner's application for rejection of the plaint under Order 7 Rule 11 of
CPC.

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19. These revision applications are required to be dismissed and are hereby
dismissed. The Registry to ensure that the records and proceedings are sent to
the trial Court as early as possible and in any case within two weeks from today.

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20.Miscellaneous application, if any, stand disposed of.

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 M. S. SONAK, J.

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MARIA Digitally signed Ap/- by MARIA AURA AURA PEREIRA Date: 2021.07.01 PEREIRA 14:36:18 +05'30'

Asmat Khan Gafar Khan and Anr., v. Madina Masjid Trust and 2 Ors.

Case brief

What is this about?

What did the court decide?

Asmat Khan Gafar Khan and Anr., v. Madina Masjid Trust and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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