Allowed

Surendar Singh S/O Umrav v. Saroj W/O Jaisingh

Rajasthan HC4 Apr 2024CR/61/2023

Case brief

AI extract

What is this about?

This revision petition challenged the dismissal of an application to dismiss a civil suit under Order 7 Rule 11 CPC. The High Court found that the respondent-plaintiff lacked standing as her husband was the actual right-holder, no authorization was filed, and she had no independent cause of action. The High Court allowed the revision and rejected the suit.

What did the court decide?

Revision petition allowed; impugned order set aside; suit dismissed for want of cause of action.

Surendar Singh S/O Umrav Vs Saroj W/O Jaisingh — Property and Title | Rajasthan HC (2024)

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[2024:W-JP:16461]

FOR WASTHAN

HIGH COURT OF 4

S.B. Civil Revision Petition No. 6112023

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Surendar Singh S/o Umrav, Aged About 50 Years, R/o Dunawas, Tehsil Mundawar, District Alwar(Raj.).

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Raghuveer Singh S/o Amarsingh, R/o Dunawas, Tehsil Mundawar, Distirct Alwar(Raj.).

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----Petitioners

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Versus

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Saroj W/o Jaisingh, Aged About 42 Years, R/o Dunawas, Tehsil Mundawar, District Alwar(Raj.)

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----Respondent

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For Petitioner(s) : Mr. Sukhdev Singh Solanki For Respo.ndent(s)

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HON'BLE MR..3USTICE ASHOK KUWAR JAIN

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Order

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04/04/2824

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Instant civil revision petition is preferred aggrieved from Order dated 09.12.2021 in civil suit No. 34/62/2020 by Learned Civil Judge Mundawar, District Alwar whereby application of petitioner defendants under Order 7 Rule 11 read with Section 151 CPC was dismissed.

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Learned counsel for petitioner while relying upon the grounds of revision would submitted that respondent-plaintiff has filed a civil suit for mandatory injunction on behalf of her husband who is serving in Army. He further submitted that no power of attorney or authority letter was filed with the plaint but the siit was filed in the name of respondent claiming right of her husband. He also submitted that without disclosing the date of encroachment on socalled right of way by petitioners-defendant, instant suit is filed

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without disclosing a proper caG1:'of action. He further submitted that only on hypothetical refusal by the petitioner-defendants the suit was filed on the basis of no cause of action. He also submitted that no cause of action was accrued to the plaintiff, therefore, the suit is just as an abuse of the process of law. He also submitted that.the right claimed by the plaintiff was neither established from the copy of plaint nor supported with any document with plaint and the suit of plaintiff is not maintainable for want of cause of action..At last he submitted that plaintiff has no right to institute a suit in her name as no civil right of plaintiff was infringed by the petitioners-defendants.

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3. None present for the respondent plaintiff despite service of notice upon respondent plaintiff.

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Heard learned counsel for petitioners-defendants and perused the material available on record.

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A suit for mandatory injunction was instituted by the plaintiff-respondent Saroj claiming that her husband is serving in CRPF (Indian Army) and there is dire necessity to institute the suit. According to plaintiff'last year when she visited her plot mentioned in para No.2 of the plaint then there was a 8 feet road and since then plaintiff was enjoying the use of that road. It was further mentioned that the husband of plaintiff is in Army and not able to get leave therefore the plaintiff is instituting the suit.' In para No. 8 of the plaint, further stated that on 19th August, 2020 after refusal to remove wall and latrine or bathroom a cause of action had accrued.

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6. The plaintiff has sought mandatory injunction and thereafter permanent injunction against the petitioner defendant. After filing

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[CR-61120231

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[2024:RJ-JP:16461]

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of application under Order 1 CPC the Trial Court has dismissed the application on the ground that the objections are not covered under Order 7 Rule 11 of CPC therefore the facts will be decided after framing the issues and the evidence. 7. A status report is called from Learned Trial Court and the report dated 21st July, 2023 indicated that after .completiop of pleadings of the parties the matter was fixed for disposal of application and settling of issues. Thereafter the application under Order 6 Rule 17 CPC was filed and now same is pending at the stage of issues.

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Order 7 Rule 11 CPC provides that after institution of suit by the plaintiff, same can be rejected on specific grounds as mentioned under Order 7 Rule 11 CPC without resorting to full trial. The basic principle for disposal of Order 7 Rule 11 CPC is that the court is under an obligation to determine ihether the suit is maintainable or not and if same is not 'maintainable the power lies on the Court to reject the same at the earliest so as to avoid unnecessary protraction of trial.

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The power to abort civil suit at the very beginning without proceeding to record the evidence or conducting a trial is a special protection to the defendant to save himself from the ordeal to face a lengthy trial. At the stage of disposal of application under Order 7 Rule 11 CPC the Courts are required to look into the content of the plaint and the documents annexed with the plaint but it cannot enter into defence or written statement of the defendant. A meaningful reading ,of the plaint means that every care and caution is required for disposal of application under Order 7 Rule 11 of CPC. The Court cannot say that the objection.raised by the

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defendant by way of applicatiof'-hder Order 7 Rule 11 CPC will be decided after evidence particularly when only a question of law was raised. The Court has to opine that the objections raised by defendant are either question of law or a mixed question of law and facts required to be adjudicated only after recording the evidence and it is not possible for the Court to go into the facts at the stage of disposal of the application.

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Very recently Hon'ble Supreme Court in case of Dahiben vs Arvindbhai Kallyanji Bhanusali (2028) 7 SCC 366 while referring the judgement in the case of Azhar Hussain vs Rajiv Gandhi 1986 Suppli. SCC 315, Sopan Sukhdeo Sable & Ors vs Assistant Charity Commissioner & Ors. (2004) 3 SCC 137 has clearly laid down that if in a suit, there is no cause of action or suit is barred by limitation then the Court would not permit the plaintiff to unnecessarily protract the proceedings iri the suit. The remedy is an independent. and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceedings to record evidence and conduct a trial, if the Court is satisfied that the action should be prevented on any of the grounds contained under Order 7 Rule 11 of CPC.

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According to judgment in case of M/S South East Asia Shipping Co. htd vs M/S Mav Bharat Enterprises Pvt. Ltd., (1996) 3 SCC 443 Hon'ble Supreme Court has held that cause of action is essentially a bundle of facts which led to the genesis of the dispute and to the plaintiff obtaining a right in law to approach the Court for redressal of his or her legal rights. The cause of action must include foul-play or a wrong act of the defendant and

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[CR-61120231

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[2024:W:JP:16461]

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encroachment on any of the SVF1 or constitutional right of the plaintiff.

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In simple words the cause of action means a set of facts on the basis of which the foundation of suit is built by the plaintiff or his counsel by filing a written petition in form of complaint after observing provision of Order I1 Rule 2 and Order VII Rule 1 CPC. The plaintiff is required to include his or her right and encroachment of the same and further the actionable wrong on the basis of which the complaint is filed.

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When we come to the instant case, then the plaintiff has filed this civil suit on the basis of right accrued to her husband and her husband is serving in Indian Army and available in the country. Herein during pendency of civil suit, no authority letter or power of attorney was filed on behalf of husband of plaintiff. The statement narrated in the plaint clearly indicate that the right relating to property in the name of her husband was infringed by the petitioner-defendants. No right, whatsoever of plaintiff Saroj was ever infringed or encroached by the petitioners-defendant. Not a single word is mentioned in the entire plaint. Unless right to sue accrue to plaintiff, she cannot file a suit against the petitionersdefendants. The plaintiff has not established any authority on behalf of her husband to sue defendants. Therefore, the right which was accrued to her husband in a proper manner is required to be addressed legally or lawfully. The plaintiff has not claimed that she was authorized by her husband to file the suit. The suit was filed in the 'name of Saroj and not as authorized representative of her husband. Moreover, on the basis of refusal to remove wall and laterine bathroom on 19.08.2020 the cause of

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[2024:FU1~~:16461] '

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[CR-61120231

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action was accrued to file the SaiY'but nowhere it was specifically mentioned that how this refusal came to be communicated to the plaintiff. Thus, the plaint was filed without a cause of action to the plaintiff-respondent.

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. The Trial Court without considering the provisions of Order 7 Rule ll(a) of CPC has not only dismissed the application without observing the legal provisions but it also ruled that objections be determined only afte; settling of issues and recording of evidence. 14. Considering aforesaid, the plaintiff has no right to institute a suit on the facts narrated in the plaint. Therefore, the plaint is just a misuse of authority of Civil Court and same is required to be dismissed for want of cause of action to the respondent-plaintiff. 15. In view of aforesaid, the instant revision petition is allowed and 'order dated 09.12.2021 in civil suit No. 34/62/2020 is hereby set aside. As a result, the application under Order 7 Rule 11 read with Section 151 CPC filed by the petitioners-defendants is allowed and the suit preferred by respondent-plaintiff before Learned Civil Judge, Mundawar District Alwar is hereby rejected for want of cause of action.

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No order as to costs.

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Misc. application, if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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MONU 1530

Surendar Singh S/O Umrav v. Saroj W/O Jaisingh

Case brief

What is this about?

What did the court decide?

Surendar Singh S/O Umrav v. Saroj W/O Jaisingh

Case brief

What is this about?

What did the court decide?

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