Mitarani Pati Vs Sudhakar Pati

been filed by the petitioner challenging an order of rejection to her petition dated 03.11.2023 under Order 7 Rule 11(d) of the CPC, 1908 by the learned District Judge, Khurda at Bhubaneswar on dated 07.03.2024

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in C.S. No.13 of 2016.

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2 . The petitioner and O.P. Nos.4 to 11 are the defendants and O.P. Nos.1 to 3 are the plaintiffs in the suit vide C.S. No.13 of 2016 pending in the Court of learned District Judge, Khurda at Bhubaneswar.

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3 . The factual backgrounds of this revision, which prompted the petitioner (defendant No.9 in the suit vide C.S. No.13 of 2016) for filing of the same is that, the O.P. Nos.1 to 3 in this revision being the plaintiffs filed the suit on dated 19.09.2016 against the trustees of the trust i.e. Neelachal Mission Trust including defendant No.1 in the Court of learned District Judge, Khurda at Bhubaneswar under Section 92 of the CPC, 1908 praying for several reliefs including a relief i.e. for formation of a scheme for the proper administration of the trust i.e. Neelachal Mission Trust alleging the mismanagement of the properties of the said trust against the defendants stating in the said plaint that, the trust i.e. Neelachal Mission Trust is a public charitable trust, for which, interference of the Court with the same is necessary for its proper administration through formulation of a scheme for the same by the Court.

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In order to institute that suit under Section 92 of the CPC, 1908 in the Court of learned District Judge, Khurda at Bhubaneswar, the plaintiffs sought for leave of the learned District Judge, Khurda at Bhubaneswar under Section 92 of the CPC, 1908 and after hearing from the plaintiffs,

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as per order dated 02.11.2016, the learned District Judge, Khurda at Bhubaneswar granted leave to the plaintiffs for the institution of that suit. Accordingly, the suit vide C.S. No.13 of 2016 filed by the plaintiffs was instituted.

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Thereafter, the defendant No.9 filed a petition under O.7 R.11(d) of the CPC, 1908 on dated 03.11.2023 praying for rejection of the plaint of

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the plaintiffs under the following grounds i.e.

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(i) When the leave for the institution of the suit vide C.S. No.13 of 2016 has been granted on 02.11.2016 and the suit was filed on 19.09.2016, then the filing of the suit without the leave of the Court is barred under Section 92 of the CPC, 1908, for which, the plaint thereof liable to be rejected .

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(ii) Neelachal Mission Trust is not a public charitable trust and the same is not coming within the purview of Section 92 of the CPC, 1908 .

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(iii) The suit of the plaintiffs is not maintainable in absence of the necessary party i.e. Neelachal Mission Trust as the suit has been filed in respect of the administration of such trust .

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(iv) The suit of the plaintiffs is liable to be rejected on the ground of non-payment of adequate Court fees, as the recovery of money has been prayed for in the suit .

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(v) The plaint of the plaintiffs is to be rejected as the plaint of the plaintiffs does not disclose cause of action against the defendants .

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To which, the plaintiffs objected by filing written objection stating

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that, the petition dated 03.11.2023 under O.7 R.11(d) of the CPC, 1908 of

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the defendant No.9 for rejection of the plaint of the plaintiffs has no merit for its consideration. Because, leave under Section 92 of the CPC, 1908 for institution of the suit was granted on dated 02.11.2016 by the learned District Judge, Khurda, for which, as per law, the suit vide C.S. No.13 of 2016 has been instituted under Section 92 of the CPC, 1908 after the leave was granted on 02.11.2016 and such leave was granted as the suit has been filed with a prayer for formulation of a scheme by the Court for the proper administration and management of the trust i.e. Neelachal Mission Trust, as the said Trust is a public charitable trust. Therefore, the institution of the suit vide C.S. No.13 of 2016 is not improper. That apart, the averments made in the plaint of the plaintiffs are not justifying its rejection under O.7 R.11(d) of the CPC, 1908. For which, the petition dated 03.11.2023 under O.7 R.11(d) of the CPC, 1908 of the defendant No.9 is liable to be rejected.

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4 . After hearing from both the sides, learned District Judge, Khurda at Bhubaneswar rejected to the petition dated 03.11.2023 under O.7 R.11(d) of the CPC, 1908 of the defendant No.9 as per Order dated 07.03.2024 assigning the reasons that,

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“ the suit vide C.S. No.13 of 2016 was filed by the plaintiffs in the year 2016. The High Court had targeted for its final disposal within a stipulated period. Thereafter, the petition for rejection of the plaint under O.7 R.11(d) of the CPC, 1908 was filed by the defendant No.9 on dated

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03.11.2023 in a belated stage for no other reason, but only in order to delay the trial of the suit. For which, the petition under O.7 R.11(d) of the CPC, 1908 of the defendant No.9 for rejection of plaint is not entertainable under law .”

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5 . On being dissatisfied with the aforesaid order of rejection to the petition under O.7 R.11(d) of the CPC, 1908 of the defendant No.9 passed on dated 07.03.2024 in C.S. No.13 of 2016 by the learned District Judge, Khurda at Bhubaneswar, she (defendant No.9) has challenged the same by filing this revision being the petitioner against the plaintiffs arraying them (plaintiffs) as O.P. Nos.1 to 3 and also arraying other defendants as O.P. Nos.4 to 11.

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6 . I have already heard from the learned senior advocate for the petitioner (defendant No.9) and learned counsel for O.P. Nos.1 to 3 (plaintiffs).

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7 . During the course of hearing, in order to assail the

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impugned order, the learned senior advocate for the petitioner

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relied upon the decisions i.e.

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(i) (2004) 5 SCC 56, State of Orissa Vrs. Dhaniram Luhar; (ii) (2008) 15 SCC 711, State of Rajasthan Vrs. Rajendra Prasad Jain;

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(iii) 2023 SCC Online (Bom) 3015, Mukund S/O Manohar Wazalwar Vrs. Eknath S/O Bajirao Hatwar (Dead) Through His LRs Durwas Eknath Hatwar and others ;

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(iv) 2022 LiveLaw (Ori) 158, Bijaya Manjari Satpathy Vrs. State of Orissa and others;

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(v) 2024 SCC OnLine Mad 5418, S. Srinivasan Vrs. Assistant Director, Director of Enforcement;

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(vi) Crl. Rev. Pet No.1149 of 2019, Prana Educational and Charitable Trust Kochoth House & Ors. Vrs. State of Kerala & Ors.;

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(vii) S.B. Civil Revision Writ Petition No.19265 of 2024, Ambalal Dhakad S/o Jaichand Dhakad Vrs. Assistant Commissioner, Devasthan Department, Jaipur and Ors.

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On the contrary, in support of the impugned order, the learned counsel for O.P. Nos.1 to 3 (plaintiffs) relied upon a decision between

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Duli Chand Vrs. Mahabir Pershad Trilok Chand Charitable Trust reported in 1983 SCC Online (Del) 270.

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8 . In order to ascertain the sustainability and justifiability of the impugned order dated 07.03.2024 passed by the learned District Judge, Khurda at Bhubaneswar, the five grounds indicated above in Para 3 of this judgment raised by the petitioner (defendant No.9) in her petition dated 03.11.2023 under O.7 R.11(d) of the CPC, 1908 for the rejection of the plaint of the plaintiffs(O.P. Nos.1 to 3 in this revision) are required to be discussed and analyzed serially and chronologically one after another hereunder.

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9 . So far as the 1^st ground raised on behalf of the defendant No.9 for rejection of the plaint of the plaintiffs vide C.S. No.13 of 2016 i.e. when the leave for the institution of the suit vide C.S. No.13 of 2016 has been granted on 02.11.2016 and the suit was filed on 19.09.2016, then the filing of the suit without the leave of the Court is barred under Section 92

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of the CPC, 1908, for which, the plaint thereof liable to be rejected is concerned ,

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it is the settled propositions of law that, if a plaint is filed without leave, there is no bar under law to grant leave under Section 92 of the CPC, 1908 subsequent to the filing of the plaint and in case leave under Section 92 of the CPC, 1908 is granted for the institution of the suit subsequent to the filing of plaint, in that case, plaint can be taken to have been instituted as per Section 92 of the CPC, 1908 on the date of grant of leave, but not prior to that.

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On this aspect, the propositions of law has already been clarified in the ratio of the following decision:-

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In a case between Kintali China Jaganadham and others Vrs. K. Laxmi Naidu and others reported in 1987 (II) OLR 262 & AIR 1988 Orissa 100 , after grant of leave, the plaint can be treated as a valid plaint instituted on the date of grant of leave. (Para 8)

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So, in view of the propositions of law enunciated in the ratio of the

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above decision, the plaint of the plaintiffs cannot be rejected on the ground that, the leave for the institution of the suit has been granted subsequent to the filing of the plaint.

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10 . So far as the 2^nd ground, the trust i.e. Neelachal Mission Trust is not a public charitable trust and the same is not coming within the

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purview of Section 92 of the CPC, 1908 is concerned ,

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in Para 4 of the petition dated 03.11.2023 under O.7 R.11(d) of the

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CPC, 1908 filed by the defendant No.9, she (defendant No.9) has stated

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that, the suit has been filed by the plaintiffs in respect to the administration of the trust.

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The averments made in the para 3 of the plaint by the plaintiffs is clearly and unambiguously going to show that, Neelachal Mission Trust is a public charitable trust, for which, it cannot be held that, there is no material in the plaint of the plaintiffs to show that, the Neelachal Mission Trust is not a public charitable trust and Section 92 of the CPC, 1908 is not applicable for the institution of the suit .

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The conclusion drawn above finds support from the ratio of the following decision of the Apex Court:-

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In a case between Charan Singh and another Vrs. Darshan Singh and others reported in AIR 1975 (SC) 371 that, the maintainability of the suit under Section 92 of the CPC, 1908 depends upon the allegations in the plaint and does not fall for decision with reference to the averments in the written statement. (Para 8)

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11 . So far as the 3^rd ground raised on behalf of the defendant No.9 (petitioner) for rejection of the plaint of the plaintiff i.e. the suit of the plaintiffs is not maintainable in absence of the necessary party i.e. Neelachal Mission Trust as the suit has been filed in respect of the administration of such trust is concerned ;

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it is the settled propositions of law that, the plaint cannot be rejected under O.7 R.11(d) of the CPC, 1908 on the ground of nonimpletion of necessary party. Because, the said matter regarding the impleation of party is a curable defect, as the law authorizes the plaintiffs as well as Court to implead any party in the suit after its institution, if impleadment of any left out party or parties is required.

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On this aspect the propositions of law has already been clarified in the ratio of the following decisions:-

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(i) In a case between M/s. Sai Polyplast & Ors. Vrs. Santosh Jain reported in 2024(1) Civil Court Cases 513 (Rajasthan) , nonimpleadment/non-joinder of a necessary party is not a ground for rejection of plaint. (Para 6)

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(ii) In a case between Silvermaple Healthcare Services Pvt. Ltd. Vrs. Dr. Tajinder Bhatti reported in 2022 SCC OnLine 3674 (Del), plaint cannot be rejected at the threshold for non-joinder of necessary party under O.7 R.11(d) of the CPC. Even assuming that, the plaintiff has not impleaded a necessary party, opportunity can be given to the plaintiff for impleadment under O.1 R.10 of the CPC.

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(iii) In a case between Soyal Infra Vrs. Smt. Rameez Bee in Civil Revision Petition No.3026 of 2019, non-joinder of necessary parties is not one of the grounds for rejection of plaint in any one of the stance under O.7 R.11 of the CPC. Because, plaintiffs can be afforded opportunity at appropriate stage of the suit by framing additional issue for impleading necessary parties, if required.

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(iv) In a case between P. Govindasamy Vrs. Manickam and others (DB) reported in 2015 SCC OnLine (Madras) 13147, Prem Prakash Dhawan Vrs. Aman Dhattarwal and others reported in 2021 SCC OnLine (Del) 2547 & Ramesh Shriram Sule Vrs. Dillipraj Niranjan

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Kumar Goenka reported in 2008 SCC OnLine (Bombay) 1118, a plaint cannot be rejected based on the principle of non-joinder of a necessary parties. The same is to be determined in the suit on the basis of evidence to be adduced by both the parties to the suit at the time of trial.

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(v) In a case between Gajinder Pal Singh Vrs. Mehtab Singh and others reported in 2001 SCC OnLine (Delhi) 1682 & Motoi Mia Vrs. Abdul Haque reported in 1983 SCC OnLine Gauwahati 20, non-joinder of necessary party is not covered by any of the clauses (a) to (d) of Rule 11 of Order 7. This is matter, which will have to be considered at the appropriate stage after framing of the issues including the issue on this aspect.

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(vi) In a case between Mumbai International Airport Pvt. Ltd. Vrs. Regency Convention Centre and Hotels Pvt. Ltd. reported in (2010) 7 SCC 417 (SC), Court to strike out or add parties at any stage of a proceeding. The discretion under the Order 1 Rule 10 of the CPC, 1908 can be exercised either suo motu or on the application of the plaintiff or the defendant. The Court can add anyone as a plaintiff or as a defendant if it finds that, he is necessary party or proper party.

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12 . So far as the 4^th ground raised on behalf of the defendant No.9 (petitioner) in this revision for rejection of the plaint i.e. , the suit of the plaintiffs is liable to be rejected on the ground of non-payment of adequate Court fees, as the recovery of money has been prayed for in the suit is concerned ;

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On this aspect the propositions of law has already been clarified in the ratio of the following decisions:-

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(i) In a case between A. Nawab John & Ors. Vrs. V.N. Subramaniyam reported in 2012 (2) OJR 255 (SC) that, question of Court fees is a matter between the plaintiff and Court only. Legislature did not intend to give any

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advantage to the defendants on account of the payment of the inadequate Court fee by the plaintiffs. A defendant is entitled to bring it to the notice of the Court that, the amount of Court fee paid by the plaintiff is not in accordance with law. But, the defendant cannot succeed in the suit only on that count. (ii) In a case between Bharpoor Singh and another Vrs. Lachhman Singh reported in I (2017) Civ.LT 457 (Punjab & Haryana) that, payment of Court fees is for the collection of revenue for the benefit of State. Question involving Court fee would be between plaintiff and State and hardly grant any right to contesting parties to challenge alleged inadequacy of Court fee either paid or to be paid by the plaintiff. Unless trial is concluded, Trial Court would not be in a position to ascertain exact amount to be granted to petitioner because that would depend on evidence led by the parties. For which, the plaint cannot be rejected at the instance of the defendant through a petition under O.7 R.11 of the CPC, 1908 as the said matter regarding the payment of inadequate Court fees is to be left upon the Court to be decided at the conclusion of the trial of the suit.

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In view of the above clarified propositions of law, the plaint of the plaintiffs cannot be rejected on the ground of non-payment of adequate Court fees.

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13 . So far as the 5^th and last ground raised by the defendant No.9 i.e., the plaint of the plaintiffs is to be rejected as the plaint of the plaintiffs does not disclose cause of action against the defendants is concerned ;

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it is the settled propositions of law that, at the time of consideration of petition under O.7 R.11 of the CPC, 1908 filed by the defendant No.9 for rejection of the plaint, only the averments made in the plaint is to be seen.

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The plaintiffs have specifically indicated/stated in para No.31 of their plaint about the cause of action for filing of the suit.

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It is the settled propositions of law that, the plaint of the plaintiffs

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can be rejected for non-disclosure of cause-action, but, when the plaint discloses cause of action, the said plaint can never be rejected on that ground.

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On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:-

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(i) In a case between Dahiben Vrs. Arvindbhai Kalyanji Bhanusali (D) thr. LRs. & Others reported in 2021 (1) Civ.C.C. 210 (SC) that, whether a plaint discloses a cause of action or not is essentially a question of fact, but, whether it does or does not must be found out from reading the plaint itself.

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(ii) In a case between Kishore Kumar Vrs. Ishar Dass reported in 2024 (4) CCC 123 (J & K) that, there is distinction between “non-disclosure of cause of action” and “non-existence of cause of action”. Non-disclosure of cause of action in a plaint would fall within ambit of Order 7 Rule 11 of the C.P.C. for rejection of the plaint, but, non-existence of cause of action would not fall within ambit of Order 7 Rule 11 of the C.P.C. for rejection of the plaint.

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(iii) In a case between Jageshwari Devi & Others Vrs. Shatrughan Ram reported in 2007 (15) SCC 52 that, there is distinction between “nondisclosure of cause of action” and “non-existence of cause of action”. Nondisclosure of cause of action in a plaint would fall within the ambit of Order 7 Rule 11 of the C.P.C. for rejection of the plaint, but, non-existence of cause of action would not fall within the ambit of Order 7 Rule 11 of the C.P.C. for rejection of the plaint.

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(iv) In a case between Niharkanti Mishra Vrs. Nihar Ranjan Patnaik & Others reported in 2025 (2) CCC 37 (Orissa) , plaint can never be rejected for non-existence of cause of action, but a plaint can be rejected for nondisclosure of cause of action.

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(v) In a case between Kailash Mundra Vrs. Rinku Mundra & another reported in 2024 (3) Civil Court Cases 724 (Rajasthan) , rejection of plaint—nondisclosure of cause of action—plaint discloses cause of action which must be tried for substantial justice between parties—Success of cause of action is a matter of trial—Application rightly dismissed. (Paras 6 & 7)

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14 . Here in this matter at hand, when the plaint of the plaintiffs are disclosing cause of action in para 31 of their plaint, then at this juncture, the plaint of the plaintiffs cannot be rejected on the ground of nondisclosure of cause of action.

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For which, as per the discussions and observations made above, none of the grounds raised above by the petitioner (defendant No.9) in her petition dated 03.11.2023 for rejection of the plaint of the plaintiffs is legally sustainable under law.

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So, the rejection to the petition dated 03.11.2023 under O.7 R.11(d) of the CPC, 1908 of the defendant No.9 by learned District Judge, Khurda at Bhubaneswar through the impugned order dated 07.03.2024 cannot be held as erroneous. For which, the question of interfering with the same through this revision filed by the petitioner (defendant No.9) does not arise.

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So, the decisions relied upon by the learned counsel for the petitioner indicated in Paragraph No.7 of this judgment are not applicable to this revision for the reasons assigned above.

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