Dismissed

Haji Abduil Hameed Khan v. Bashir Ahmad Bashir

J&K HC11 Dec 2018CR/51/2018

Case brief

AI extract

What is this about?

The High Court in J&K dismissed a civil revision petition challenging a trial court order that refused to reject a plaint under Order 7 Rule 11 CPC. The court held that the trial court did not err in concluding that the plaint disclosed a cause of action.

What did the court decide?

The revision petition and connected interlocutory application are dismissed.

Haji Abduil Hameed Khan Vs Bashir Ahmad Bashir — Civil Procedure and Limitation | J&K HC (2018)

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Serial No.09 Supplementary List

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HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR

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CR No.51/2018 IA No.01/2018

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Date of decision:11.12.2018 Haji Abdul Hameed Khan v. Bashir Ahmad Bashir

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Coram:

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Hon’ble Mr Justice Rashid Ali Dar, Judge.

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Appearance:

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For the Petitioner(s): Mr. J. H. Reshi, Adv. For the Respondent(s): Mr. Z. A. Shah, Sr. Adv. with Mr. Hanan, Adv. i) Whether approved for reporting in Yes/No Law journals etc.: ii) Whether approved for publication in press: Yes/No

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It appears from the perusal of the order called in question in terms of instant revision petition that the suit titled “ Bashir Ahmad Bashir Vs. Welfare Committee & others ” is pending adjudication before the Court of 4^th Additional District Judge, Srinagar. The suit has been instituted in the year 2013 and on filing of the written statement by the defendants, issues too have been framed. The evidence is said to have been led by the parties in the case as is also reflected from the perusal of the order impugned.

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An application came to be filed before the said Court on 18.02.2017 under Order 7 Rule 11 CPC, in terms of which rejection of the plaint was

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sought on the following grounds:

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That the suit is not maintainable in its present form as the plaintiffs are confused with the relief clause as well cause of action of suit;

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That the plaintiff is agitating the matter against the private defendants while as claiming lane no.15 as public lane and without impleading any state authorities as a party;

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That the whole suit is based on subject matter lane no.15 which is long years before acquired by the State authorities and defendants have no claim over said land and the said lane is public lane;

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That the plaintiff/non applicant created illusion with regard to cause of action by merging lane no.15 with the private property of defendant;

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That the issue framed by the Court from the pleadings of the plaintiff/non-applicant is with regard to lane No.15 and thereafter evidence adduced with regard to lane no.15 which is completely a public road and defendants have no role over it;

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That the plaintiff/non-applicant drafted cleverly plaint and under disguise of present suit plaintiff is seeking decree of lane No.15 from private person while as lane No.15 is

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public road;

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That the plaintiff made illusionary cause of action, so that private property of defendants/pathway is grabbed under the disguise of public lane 15;

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That the plaintiff made illusionary pathway to his land and thereafter connected said lane with lane no.15 without mentioning the private property of defendants. It is more important to mention here in case there was a pathway and said pathway was mentioned in the government records, then plaintiff had to implead the State authorities party and claim his pathway but he made confused cause of action to grab the private land of defendants;

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That the averments made in the plaint describes that the plaintiffs have no cause of action against the defendants as plaintiff made false and fabricated averments on the one breath mentioned public road lane no.15 as private road and on the other hand claiming public road from private parties.

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Objections to the application were filed by the respondents herein (plaintiff) wherein he has submitted:

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That the application besides being highly misconceived is also very badly drafted hence is having neither head nor any tail. It seems the defendants are confused very much now and that cause of their frustration is discernible from the

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averments of the application itself that is why they have tried to make a complete U turn in the matter and after such a long trial have now conceded that lane no.15 is a public thorough fare upon which no individual or group of individuals has/have any right to prevent general public from using the same and this way issues 1, 2 and 3 having been conceded have to be decided in favour of the plaintiff and the only issue to be decided after considering the evidence is the quantum of compensation to be awarded to the plaintiff;

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That the cause of frustration of the defendants particularly of defendant no.5 is the statement of the Chief Engineer summoned by defendants who has categorically stated that lane no.15 which is the suit land is a thorough fare developed by the Government after spending huge amount from public exchequer hence neither any individual has any right over the said lane nor any group of individuals, hence nobody can stop any bode from using the said lane;

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That the surprising part is that defendants for the last more than five years have consistently taken the stand that lane 15 is there private property hence plaintiff was stopped from using the same and after the same of the Chief Engineer was recorded, they have made U turn now having realized that they have lost their unwarranted claim;

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That now coming to the other averments made in the application one fails to understand why the defendants have not understood what is meant by cause of action and how is same missing in the plaint. Had it been so, this frivolous application would have been filed on the very first day they received the copy of the plaint, why at the fag end of the trial which lasted for more than five years and not only have the defendants adduced their evidence but sought assistance of the court to produce further evidence also. If they were serious in raising the objection which they have raised now, they should have done the same at the threshold to save the precious time of the court of not their own as well as of the plaintiff but did not do so because this attempt made is vexatious and quite unwarranted;

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That the Hon’ble Supreme Court has impressed upon all the Courts in number of judgments that frivolous litigation should be curbed with heavy hands by imposing exemplary costs so that the delaying tactics are not encouraged and general public does not loose faith and confidence due to delayed justice, hence present application being frivolous and meritless, having been filed only to delay and drag the proceedings, interests of justice will be met by imposing exemplary costs after dismissing the said application;

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That the plaintiff wants to make it clear that he has sought

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decree for using the public thoroughfare which is macadamized being lane no.15 not any bodies private lane or compound which of course will not be macadamized, hence the vexatious and frivolous assertion made that plaintiff wants to use somebodies private land is figment of imagination of the defendants only to delay the proceedings.

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The learned trial court after hearing the parties did not find favour for accepting the prayer made in terms of the application made for rejection of plaint and so dismissed it with the following observations:

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“……The argument of the ld. Counsel for the applicants/defendants that plaint of the plaintiff is without cause of action appears to be without any basis while taking into account the whole plaint. Also the arguments of the ld. Counsel for the applicants/defendants that plaint requires to be shown the door as the plaintiff has suppressed the material fact germane to the controversy that he had earlier also filed a suit against his vendor regarding the pathway which fact plaintiff has admitted but strongly denied any relevance of that suit in the present suit for the reason that the earlier suit was against his vendor regarding the pathway but the present suit is regarding his use of link road/lane no.15, a public land developed by govt. department at the cost of public exchequer, which fact lately has been admitted by the defendants in the instant application. Also

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the argument of ld counsel for the applicants/defendants that suit needs to be dismissed for not arraying State as a party in the suit is baseless as allegedly private persons/defendants are denying access of the plaintiff to the public lane/lane no.15 not the govt. Plaintiff has no grievance with the State, otherwise also this cannot be a ground for rejection of the plaint. The authorities cited by the ld counsel at bar are distinguishable in the given facts and circumstances of the case and did not lend any support to the claim of the defendants. The plaint averments taken as a whole disclose a cause of action. The truthfulness or otherwise of the averments is to be seen at the trial. Consequently, this court is of the considered opinion that plaint discloses a cause of action. Consequently, the instant application is dismissed as being bereft of any merit.”

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The said order is being called in question in terms of the instant petition, inter-alia , amongst others, on the following grounds:

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i. That the lane No.15, admittedly, is a public road but there is no connecting public lane existing between the lane No.15 and the so called land of the plaintiff but in between the two is the proprietary land of the petitioner measuring 1 kanal 15 ½ marlas comprising of Khasra No.2668/1131;

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ii. That the judgment and order of the trial court is without

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jurisdiction as the court, despite of holding that the defendants have conceded and admitted that the lane No.15 which was the bone of contention between the parties is a public road and everybody including plaintiff is free to use the same as claimed by him has chosen to continue with the aforesaid proceedings when the very cause of action to continue, it had come to an end and ceased to exist;

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iii. That there is absolutely no whisper or word about lane 15 in the plaint or the written statement filed in the suit but the plaintiff under the disguise of the suit is trying to usurp the land of the plaintiff comprising of Khasra No.1131 on which the plaintiff or anyone else has got no title, right, interest or claim whatsoever;

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iv. That the plaintiff in a clandestine way and manner has purchased land measuring 1 kanals comprising of Khasra No.1137-min situated at Batamaloo from its erstwhile owner through a void and shame sale deed dated 02.04.1997 without any access to the aforesaid main road i.e. lane No.15;

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v. That the law laid down by the Hon’ble Apex Court and this Court as well on the subject is clear that the litigation for the sake of litigations what are false, vexatious or frivolous and are based on bad faith should be scuttled at the earliest

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possible opportunity as a matter of public policy;

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vi. That the plaintiff is ex-facie guilty of abuse of process of law and court as the two conflicting suits stands filed by him in the capacity of a senior advocate which is improper for a lawyer of his standing to do;

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vii. That in law each and every litigant is to be treated equally and fairly and no one should be allowed to misuse his position or status;

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viii. That the judgment and order impugned is without jurisdiction and has caused material injustice to the petitioner herein, therefore, it is liable to be set aside and suit needs to be dismissed as required under law.

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Mr. Reshi, learned counsel for the petitioner, on being heard, submitted that the Court has to remain alive to the fact that the petitioner herein is a poor tailor who is being vexed for no cause available to the otherside. He has also referred to some order passed in OWP No.619/2016 wherein this Court had directed for expeditious trial of the suit. Certain questions of fact have been also canvassed as put forth in the application wherein it is stated that the respondent/plaintiff has no cause of action available and so either suit is required to be dismissed or decreed in favour of the respondent/plaintiff. In case public road exists on spot as per the description given in the plaint, the respondent/plaintiff may use the same but,

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according to learned counsel for the petitioner, land is owned by the petitioner/defendant cannot be permitted to be used by respondent. There was no document available at the time of filing of suit with the plaintiff on the basis of which he could raise the plea that he owns property or has a right of ingress and egress over the lane named therein, according to him.

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Learned counsel for the petitioner further contended that earlier a decree was passed in a case instituted by the plaintiff/respondent against his predecessor-in-interest. The respondent is making an attempt to execute the said decree though there is no justification or ground for doing so as the person against whom the decree had been passed is dead now.

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On the other hand, Mr. Shah, learned Senior Counsel, appearing for the respondent, submitted that the property over which right is being projected by the plaintiff/respondent is properly described in the site map annexed with the plaint/petition. The answer of the defendant/petitioner herein is clearly suggestive of the fact that the trial is required to proceed and the finding accordingly returned. The argument put forth on behalf of the petitioner/defendant is totally misconceived and the petition is liable to be dismissed, according to him. It would not be the name as given by the petitioner herein to the lane which is material but it is the property as understood and pleaded by the parties to be the subject matter of the lis, is his further submission. According to him, there was nothing bad for the High Court to pass appropriate directions earlier for expeditious trial of the case and the ground now taken by the learned counsel appearing for the petitioner in this regard is also ill conceived. Similarly, filing of suit earlier and getting

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a decree therein would not bar institution of fresh suit as the relief claimed is of injunction in nature. The relief granted therein is to be inferred to be issued against a particular person named in the suit and is not to be treated a decree on a right in rem (being a suit for injunction).

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Considered the rival arguments.

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On perusal of the material before me, it is evident that the suit filed on behalf of the respondent is pending adjudication before the concerned trial court, wherein, respondent has, precisely, pleaded as under:

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(1) That the plaintiff has purchased two kanals of land in survey No.1137 from one Rehman Bhat S/o Rasool Bhat R/o Firdous Abad way back in the year 1997 through registered sale deed;

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(2) That the plaintiff carried all the building material like sand, stone, cement iron, bajri etc. from a link road which is a public thoroughfare without any objection/hitch or hindrance from anyone in the locality including defendants;

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(3) That the plaintiff has been using the same link road to visit his land for the last more than sixteen years. The said link, which has been developed by R&B/Municipality, which ha road is being used by others also being a public thoroughfare;

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(4) That the plaintiff few days before asking one contractor, namely, Zahoor Ahmad Wani, to undertake the work of earth filling the said plot of the plaintiff as well as its approach path but he was prevented by the defendants from using the link road without any reason or justification;

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(5) That the plaintiff approached some of the office bearers of

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Mohalla committee on 6^th Jan, 2013 in presence of the contractor who asked for some time to consult their other members in the mosque and stated that the plaintiff will be intimated of their decision next day through the contractor;

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(6) That on next day the plaintiff was told by the said contractor that defendant No.2 who is styling himself to be the president is asking for ransom money to use the link road and when plaintiff talked on phone with the said defendant No.2, he demanded Rs.30.00/ lacks from the plaintiff on behalf of the Welfare Committee (defendant No.1) for using the said link road which is a public thoroughfare;

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(7) That the defendants have no absolutely no right, much less to say any legal right to prevent the plaintiff from using the said link road which is the only connecting road to the plaintiffs plot of land which the plaintiff has been using for last sixteen years;

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(8) That the link road having been developed by the State functionaries, no one has any right to claim the said road to be personal property, thus cannot prevent anyone from using the same;

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(9) That the defendants having caused undue interference with the plaintiffs right to use the said suit land/link road has forced the plaintiff to suffer damages physically who could not do the earth filling and mentally by causing unwarranted mental torture and harassment to the plaintiff for which wrong the plaintiff wants to sue them for damages by virtue of this suit which are assessed at Rs.2.00/ lacks which the defendants should be asked to pay to the plaintiff jointly and severally.

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On perusal of the material before me, it is also evident that the defendants have filed written statement, chiefly, projecting therein that no approach road existed or exists at present on spot. The fraudulent reflection

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of the site plan as well as reflection in the sale deed of ingress and out gress through a 12 feet vide approach is false and not correct. The suit land falls in the area which was open paddy field. The whole area was approach less and road less. The defendant No.5 holds a plot of land covered under Survey No.1131 which was land locked, through had purchased in the year 1985. The approach roads got developed with the passage of time after the area was in a process of raising construction. The carriage of building material by the plaintiff to the to the site as alleged by the plaintiff in the plaint had taken through open field through adjoining plots. In absence of approach road, how plaintiff can be permitted to crawl over the proprietary plot holdings of other owners who also possess their approachless plots and are landlocked. It is the local welfare committee who coordinated and managed building this part of approach exclusively for the plot holders who have contributed and raised it. This approach terminates in the open field of different land owners. The plaintiff has to acquire landholding for carving out this approach and without proper acquisition, the plaintiff has no right to avail the land of different owners. The defendant No.5 is the resident of Batamaloo and holds land in survey No.1131 purchased much before the plaintiff in the year 1985. This plot of land proceeds the land of the plaintiff and how the plaintiff will be allowed to permit to avail ingress and outgress the permit through the proprietary holding of defendant No.5.

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The learned trial court has framed issues, of which reference has also been made by the learned counsel for the petitioner and in the light of the evidence on record, finding is required to be returned after examining the

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material on record and appreciation of the evidence under law. This Court while hearing a civil revision, wherein legality of an order is to be tested, cannot itself return any finding on any question of fact of which the learned trial court has to take notice and, as stated above, tender the finding accordingly.

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The primary object of Section 115 CPC is to prevent the subordinate courts from acting arbitrarily, capriciously and illegally or irregularly in exercise of their jurisdiction. It clothes the High Courts with the powers necessary to see that the proceedings in the subordinate courts are conducted in accordance with law. Whether the petition herein could sustain the test would be seen hereinafter.

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It appears from the perusal of the impugned order dated 29.09.2018 that learned 4^th Additional District Judge, Srinagar, has declined the prayer made for rejection of the plaint on the count that the cause of action is not disclosed. The observations given by the learned trial court are that the averments of the plaint taken as a whole disclose a cause of action. The truthfulness or otherwise of the averments is to be seen at the trial.

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It is a fundamental principle of civil jurisprudence that the cause of action has to be deduced from the facts put forth in the plaint and at the initial stage. The lis in no case can be thrown in limini on the premise that the defendant gave a different version about the factual matrix narrated in plaint or in defence taken by the other-side, it is being canvassed that the plaint has no merit and the factual pleas taken therein are untrue. The Court cannot

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bracket the case factually put forth by either of the parties as its finding in absence of trial.

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Thus, on the touchstone of the Section 115 CPC, the case put forth by the petitioner has been examined. Vividly, the petition is misconceived. The approach of the petitioner for treating his version as put forth in the application as true while throwing out the case of the plaintiffs/respondents is not supported by any legal provision. It may be apt herein to reproduce para 15 of the judgment of the Hon’ble Apex Court captioned “ Bhau Ram v. Janak Singh & others ” reported in (2012) 8 SCC 701 :

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“15. The law has been settled by this Court in various decisions that while considering an application under Order 7 Rule 11 CPC, the Court has to examine the averments in the plaint and the pleas taken by the defendant in the written statement would be irrelevant. [vide C. Natrajan vs. Ashim Bai , Ram Prakash Gupta vs. Rajiv Kumar Gupta , Hardesh Ores (P) Ltd. vs. Hede and Company, Mayar (H.K.) v. Vessel M.V. Fortune Express , Sopan Sukhdeo Sable vs. Assistant Charity Commissioner and Saleem Bhai v. State of Maharashtra . The above view has been once again reiterated in the recent decision of this Court in Church of Christ Charitable Trust & Educational Charitable Society vs. Ponniamman Educational Trust.”

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I may also be quite apposite to quote following portion from para 8 of the judgment of the Hon’ble Apex Court titled “ C. Natrajan v. Ashim

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Bai and another ” (2007) 14 SCC 183 :

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“8. An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law…………the court would not be entitled to consider the case of the defence.”

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That being so, revision petition being without merit is dismissed along with connected IA.

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Copy of the order be sent to the learned trial court for information.

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(Rashid Ali Dar)
Judge
Srinagar
11.12.2018
“Bhat Altaf, PS”

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Haji Abduil Hameed Khan v. Bashir Ahmad Bashir

Case brief

What is this about?

What did the court decide?

Haji Abduil Hameed Khan v. Bashir Ahmad Bashir

Case brief

What is this about?

What did the court decide?

What the court decided

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