MANU/BH/1668/2010

Equivalent/Neutral Citation: AIR2010Pat189, 2013(1)PLJR738

IN THE HIGH COURT OF PATNA

C.R. No. 2143 of 2009
Decided On: 24.06.2010
Bhagirath Prasad Sigh Vs. Ram Narayan Rai and Ors.
Hon'ble Judges/Coram:
Dr. Ravi Ranjan, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Shiv Nandan Roy and Dronacharya
For Respondents/Defendant: Ganesh Chandra Thakur and Ajay Kumar Singh
ORDER
Ravi Ranjan, J.
1 . This civil revision is directed against the order dated 5.11.2009 passed by Munsif,
Danapur, in Title Suit No. 46 of 2008, whereby the application filed by the defendant-
petitioner under Order VII Rule 11 of the Code of Civil Procedure had been rejected.
Heard learned counsel for the defendant-petitioner and the plaintiffs-opp. party nos. 1
and 2.
2. This revision is being disposed of at this stage with the consent of the parties.
3 . Plaintiffs-opp. parties did not raise any issue with regard to maintainability of this
civil revision. However, in view of the law laid down by the Division Bench in Civil
Revision No. 1067 of 2009 and other referred matters, it is held that this civil revision is
maintainable.
4. Now, I proceed to consider this revision on its merit.
5. The defendant-petitioner had filed Title Suit No. 125 of 1969 for declaration of title
and confirmation of possession and alternatively for recovery of possession with respect
to open space of land and for other ancillary reliefs. The suit was dismissed by the
learned Munsif-II, Patna, by judgment dated 31.3.1979 against which the defendant-
petitioner (plaintiff in the aforesaid suit) preferred Title Appeal No. 78 of 1979, which
was allowed by learned Additional District Judge-XIII, Patna by judgment dated
23.12.1987. Against the said judgment and decree the plaintiffs-opposite parties
(defendants in the Title Suit No. 125 of 1969) preferred Second Appeal No. 78 of 1988.
In the Second Appeal an order dated 11.1.2000 was passed by this Court on the
application of the decree holders-opposite parties, who claimed that the judgment
debtors taking advantage of order of ad-interim injunctions were making certain
constructions over the suit property upon which it was ordered that though there was
no reason to restrain the judgment debtors from making new construction but if
construction is made over the suit land the same shall be subject to result of the Second
Appeal and the judgment debtors shall not be entitled to claim any equity. Ultimately
the aforesaid Second Appeal was finally dismissed and the plaintiffs-opposite parties

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(Judgment debtors in the earlier suit) moved to the Hon'ble Apex Court but there also
they lost and finally execution proceeding was initiated. During the execution
proceeding a Pleader Commissioner was appointed, who submitted a report with
specific finding that the constructions made on the land in question were new and, thus,
in view of the earlier order passed in Second Appeal No. 78 of 1988 and upon
consideration of the report of the Pleader Commissioner, the Executing Court passed an
order dated 20.11.2006 directing the building in question to be demolished and
possession be given to the plaintiffs-decree holders, who are defendant-petitioner
herein.
6 . The aforesaid order was challenged by the defendants-judgment debtors of the
earlier suit who are the plaintiffs-opposite parties herein by filing C.R. No. 61 of 2007.
That civil revision was dismissed by this Court by reasoned order dated 1.5.2008, a
copy of which has been appended as Annexure-2. Thereafter, it had been submitted on
behalf of the defendant-petitioner that the building in question in fact was demolished.
However, the plaintiffs-opposite parties filed a fresh Title Suit No. 46 of 2008 for
declaration that the order dated 20.11.2006 passed by the Executing Court and all
actions in pursuance thereof were fraudulently obtained by the defendant. The
defendant appeared and filed a petition under Order VII Rule 11 of the Code of Civil
Procedure stating all the facts as aforesaid including the factum of order passed in Civil
Revision No. 61 of 2007 and made a prayer for rejection of the plaint on the ground
that no cause of action has arisen as the matter had finally been set at rest by this Court
by order dated 1.5.2008 passed in the aforesaid civil revision which had attained finality
on not having been challenged. Therefore, the subsequent suit was barred by res
judicata also. Lastly it was contended that the defendants (the plaintiffs-opposite parties
in present revision) having lost all along up to the Apex Court and subsequently even in
the execution proceeding and the civil revision as aforesaid, the fresh suit was merely a
vexatious litigation for harassing the defendant-petitioner.
7 . Learned counsel for the defendant-petitioner submitted that when the order dated
20.11.2006 had been held to be valid by this Court vide Annexure-2, it is not open to
the court concerned to decide the issue as to whether the same was obtained by playing
fraud upon the court. Learned counsel submitted that very cleverly the plaintiff had
deliberately suppressed the fact of filing of civil revision by him against the order dated
20.11.2006 passed by the Execution Munsif and its dismissal by a reasoned order dated
1.5.2008. It had been contended that the factum was brought to the notice of the court
below by stating the relevant facts in the petition filed under Order VII Rule 11 of the
Code of Civil Procedure (which has been brought as Annexure-4), however, the court
below had decided that the subsequent suit is not barred by res judicata and
erroneously held that the issue requires to be heard and disposed of after appreciation
of evidence. Learned counsel further submitted that it is well settled that all the order
passed by the Court below upon adjudication by the superior court merges into the
same. In support of the submissions, learned counsel for the petitioner placed reliance
upon a decision rendered by the Apex Court in Shankar Ramchandra Abhyankar vs.
Krishnaji Dattatraya Bapat [MANU/SC/0456/1969 : AIR 1970 1]. The Apex Court had
held that once a revisional jurisdiction was invoked against the order of the appellate
court and the High Court dismissed the revision after hearing both the parties, the order
of the appellate court merged in the order passed in revision and, thereafter, the
appellate order cannot be challenged and adjudicated in the High Court under Articles
226 and 227 of the Constitution. It was urged that, thus, court below was not
competent to entertain a fresh suit for declaration that the order dated 11.1.2000 was
obtained by fraud upon the Court. It had further been contended that in view of the
above it could safely be construed that no cause of action actually had arisen and by

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using the word "fraud" upon the Court, the plaintiffs-opposite parties have made an
endeavour to create an illusionary cause of action, which is not permissible under law.
In support of his submission learned counsel had placed reliance upon a decision of the
Apex Court rendered in I.T.C. Limited vs. Debts Recovery Appellate Tribunal and Others
[MANU/SC/0968/1998 : (1998) 2 SCC 70]. In its aforesaid decision the Apex Court has
held that the power of rejection of the plaint can be exercised even after framing of
issues and matter is posted for evidence and has further held that it was incumbent
upon the concerned court to look into the matter as to whether real cause of action has
been set out or something illusionary has been stated with a view to get out the Order
VII Rule 11 of the Code of Civil Procedure. Learned counsel submitted that the
defendant had only supplied the material facts which the plaintiffs were bound in law to
disclose but they had deliberately not disclosed.
8 . On the other hand the learned counsel appearing for the plaintiffs-opposite parties
contended that it is well settled that in terms of Order VII Rule 11 of the Code of Civil
Procedure for the purpose of rejection of plaint the pleading as made in the plaint can
only be looked into. Even written statement is not required to be gone into. Since there
is no statement in the plaint admitting the aforesaid facts, the trial court concerned was
within its jurisdiction to held that the subsequent proceeding is not barred by res
judicata and it requires proper trial after framing of issues. Whatever is brought on
record by the defendant would be matter of adjudication at the time of deciding the suit
finally. The plaintiffs may loose the suit on merit but in the aforesaid circumstances
certainly the plaint cannot be rejected in terms of Order VII Rule 11 of the Code of Civil
Procedure.
9. I find no force in the submission raised on behalf of the plaintiffs-opposite parties.
No doubt, as per the provisions of Order VII Rule 11 of the Code of Civil Procedure, for
the purposes of determining the question of rejection of plaint on the other grounds
mentioned therein, it is the plaint that has to be looked into, but the question is that if
the plaintiffs have deliberately suppressed the material facts, the disclosure of which is
required by law to be made in terms of Order VI Rule 2 of the Code of Civil Procedure,
whether it was open for the court concerned to proceed with the trial and decide the
suit after framing issues. The order dated 20.11.2006 was challenged by the plaintiffs-
judgment debtors themselves before this Court and the civil revision was dismissed by a
reasoned order dated 1.5.2008. Thus, this fact was well known to the plaintiffs and they
were duty bound in law to disclose the same which they have not done. Order VI Rule
2(1) of the Code of Civil Procedure clearly stipulates that the pleadings should contain
the material facts. It has been observed by the Apex Court in Sopan Sukhdeo Sable and
Others vs. Assistant Charity Commissioner and Others [MANU/SC/0071/2004 : (2004) 3
SCC 137] that omission of a single material fact leads to an incomplete cause of action
and the statement or plaint becomes bad. Order VII Rule 11 of the Code of Civil
Procedure lays down an independent remedy made available to the defendant to
challenge the maintainability of the suit itself, irrespective of his right to contest the
same on merits. The real object of Order VII Rule 11 of the Code of Civil Procedure is to
keep out of courts irresponsible law suits and in case Court is prima facie persuaded of
the view that the suit is an abuse of the process of the court, in the sense that it is a
bogus and irresponsible litigation, the jurisdiction under Order VII Rule 11 of the Code
of Civil Procedure can be exercised.
10. Law is well settled that dexterity of the draftsman whereby the material facts are
camouflaged in a cleverly drafted plaint and illusionary cause of action is set out,
cannot defeat the right of the defendant to get the plaint rejected. In this regard it
would be pertinent to quote the relevant passage of the observation of the Apex Court

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in T. Arivandandam vs. T.V. Satyapal [MANU/SC/0034/1977 : (1977) 4 SCC 467] (SCC
p. 470, para 5 as under):--
We have not the slightest hesitation in condemning the petitioner for the gross
abuse of the process of the court repeatedly and unrepentantly resorted to.
From the statement of the facts found in the judgment of the High Court, it is
perfectly plain that the suit now pending before the First Munsif's Court,
Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints.
The learned Munsif must remember that if on a meaningful--not formal--
reading of the plaint it is manifestly vexatious, and merit less, in the sense of
not disclosing a clear right to sue, he should exercise his power and Order 7
Rule 11 CPC, taking care to see that the ground mentioned therein is fulfilled.
And, if 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 10 CPC.
An activist judge is the answer to irresponsible law suits.
11. From the aforesaid decisions of the Apex Court rendered in T. Arivandandam vs.
T.V. Satyapal (supra) as well I.T.C. Limited vs. Debts Recovery Appellate Tribunal and
Others (supra) it would emerge that the gross abuse of process of Court would be
condemned. Further, the reading of plaint for the purposes of Order VII Rule 11 of the
Code of Civil Procedure would be meaningful reading and not only the formal reading of
the same. If real cause of action has not been set out in the plaint rather something
illusionary has been stated with a view to get out the scope of Order VII Rule 11 of the
Code of Civil Procedure, such clever drafting and suppression of material facts are not
permitted in law and hence such action should be nipped at the bud. Similar view has
been taken by learned single Judge of this Court in Vikash Singh & Anr. vs. Sri Krishna
Prasad Sinha and Others (C.R. No. 1044 of 2006) disposed of on 27.9.2007.
12. In the present case it has to be held that in view of the suppression of the material
fact by the plaintiffs by cleverly omitting to state regarding the factum of challenging
the order dated 20.11.2006 in Civil Revision No. 16 of 2006, which has been dismissed
by a reasoned order dated 1.5.2008, the subsequent suit challenging the same order on
the ground of fraud is not at all maintainable and plaint was liable to be rejected on this
ground. The court below has committed serious error by holding that the suit is not
barred by res judicata and, thus, the plaint is not required to be rejected rather the suit
is to be tried after framing of issues. Continuance of the suit, for the aforesaid reasons,
in my opinion, would amount to abuse of process of court.
13. In above view of the matter the impugned order dated 5.11.2009 passed in Title
Suit No. 46 of 2008 is set aside and it is held that in this case there was not only clever
drafting but also suppression of material facts and somehow or other the plaintiffs-
opposite parties want to carry on the litigation that had been set at rest by the decision
rendered in C.R. No. 61 of 2007, which cannot be permitted. Thus, it is held that the
plaint is liable to be rejected and the same is rejected. This civil revision is,
accordingly, allowed.
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