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CASE NO.:

Appeal (civil) 448 of 2004

PETITIONER:

Sopan Sukhdeo Sable & Ors.

RESPONDENT:

Assistant Charity Commissioner & Ors.

DATE OF JUDGMENT: 23/01/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

(Arising out of SLP (Civil) No. 20366/2002)

ARIJIT PASAYAT,J

Leave granted.

The appellants who were plaintiffs in a suit filed

before the learned Civil Judge, Senior Division, Srirampur

have questioned legality of the conclusions arrived at by

the Courts below holding that the plaint filed by them was

to be rejected in terms of Order VII Rule 11 of the Code of

Civil Procedure, 1908 (in short the 'Code'). The plaintiffs

claimed to be tenants under respondent No.2, Shaneshwar

Deosthan Trust (hereinafter referred to as the 'trust'). Its

trustees and the Assistant Charity Commissioner (in short

the 'Commissioner') were the other defendants. Plaintiffs

claimed that they were tenants of the trust of which the

defendants Nos. 3 to 13 were the trustees. Alleging that

they have been forcibly evicted notwithstanding continuance

of the tenancy, the suit was filed for the following

reliefs:

A) Plaintiff no. 1 to 17, be declared as the

tenants of the properties described in the

plaint belonging to temple Trust, of which

defendant No.2 to 13 are trustees.

B) Defendant No.1 to 13, be permanently

restrained by an order of injunction not to

evict plaintiff No.1 to 13, forcibly with

the help of police and also not to

interfere in their business being carried on

by them in suit shops, and not to interfere

in the possession of suit shops in any

manner-whatsoever, either by themselves or

by their servants, agents, relatives or

anybody claiming through or under them.

C) Direct the defendant No. 2 to 13, to

pay compensation for the loss caused to the

plaintiffs on account of their acts of

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omission and commission as described in the

plaint, committed by them prior to the

filing of the suit and during pendency of

suit for the damage that may be caused to

the plaintiffs.

D) Defendant No.1 be directed to enquire

into the illegal acts, committed by

defendant No.2 to 13, and issue appropriate

direction to that effect.

The suit was numbered as R.C.S. No.160/1997 in the

trial Court. The stand of the plaintiffs-appellants

essentially was that the tenancy was for a period of 11

years and not for 11 months as claimed by the trust. An

application was filed by the trust raising a preliminary

plea that the plaint is liable to be rejected under Order

VII Rule 11 of the Code. With reference to Section 80 of the

Bombay Public Trusts Act, 1950 (in short the 'Act') it was

urged that no Civil court had jurisdiction to decide or deal

with any question which by or under the Act is to be decided

or dealt with by any officer or authority under the Act and

in respect of which the decision or order of such officer or

authority has been made final and conclusive. The trial

Judge framed two preliminary issues, i.e. (a) whether the

suit was liable to be rejected under Order VII Rule 11 of

the Code for want of cause of action, and (b) whether the

suit was tenable against all the defendants. Findings in

respect of the preliminary issues were recorded against the

plaintiffs. A finding was recorded that the plaint does not

disclose any cause of action and also in view of the

specific provisions of the Act, the jurisdiction vests only

with the District Court to give direction to Commissioner

and in any event Section 80 of the Act took away

jurisdiction of the Civil Court and the plaint was rejected.

Challenging the judgment and decree dated 21.10.2000 passed

by the learned Civil Judge, Senior Division, Srirampur, an

appeal was preferred before the District Court which was

numbered as Regular Civil Appeal No.178 of 2000. The appeal

was dismissed and the decree passed by the trial Court was

confirmed by II Additional District Judge at Srirampur,

Ahmed Nagar District. The matter was carried in Second

Appeal before the High Court which by the impugned judgment

upheld the findings recorded by the Courts below. Before the

High Court, it was contended by the appellants that Sections

50, 51 and 80 of the Act had no application and the lease

being for 11 years, the action of the trust in dispossessing

the plaintiffs forcibly cannot have the approval of law. The

stand of the trust was to the effect that the plaintiffs

have not approached the Court with clean hands. They had

tried to get relief from the High Court by filing a petition

under Article 226 of the Constitution of India, 1950 (in

short the 'Constitution'). They failed to comply with the

interim directions given by the High Court and before the

date posted before the High Court for consideration of the

interim orders, they filed the suit and prayed for

injunction. Subsequently, the writ petition was withdrawn.

The plaint filed by the plaintiffs did not disclose any

cause of action and in any event the relief sought for could

not have been granted by the Civil Court in view of the

specific provisions contained in Sections 50, 51 and 80 of

the Act. There was no forcible dispossession as claimed. The

Courts below were justified in rejecting the plaint.

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The High Court accepted the plea of the trust and

dismissed the second appeal affirming the conclusions

arrived by the Courts below.

In support of the appeal, Mr. V.A. Mohta, learned

senior counsel appearing for the appellants submitted that

the Courts below have lost sight of the nuances of Order VII

Rule 11 of the Code. Even if for the sake of arguments it is

conceded that some reliefs were to be dealt with by the

authorities under the Act, the reliefs were severable and

the Civil Court had jurisdiction to deal with them. The

dispute projected in the suit essentially related to the

question of tenancy and the relationship between the

plaintiffs and the defendant-trust vis-`-vis the question of

tenancy, the term of tenancy are matters intermittently

linked with these basic issues. Such issues cannot be

decided by the authorities under the Act. Therefore, the

rejection of the plaint under Order VII Rule 11 of the Code

cannot be maintained in law. The plaintiffs were

dispossessed illegally and a person dispossessed illegally

was entitled to protection. A person without title but in

'settled' possession as against mere fugitive possession,

can get back possession if forcibly dispossessed or rather

if dispossessed otherwise than by due process of law.

Per contra, Mr. A.V. Savant, learned senior counsel

appearing for the defendant-trust submitted that the Courts

below have concurrently found it as a matter of fact that

the plaint did not disclose a cause of action and the Civil

Court had no jurisdiction to deal with a matter,

specifically in view of what has been statutorily provided

in Section 80 of the Act. With reference to the judgment of

the High court it was pointed out that the plaintiffs had

not approached the Court with clean hands. They had adopted

dubious methods, did not comply with the directions of the

High Court for depositing the stipulated amount. By a ruse,

some reliefs have been sought for in the plaint totally out

of context with the main prayers which are to be dealt with

in terms of Sections 50 and 51 of the Act. There were no

pleadings about alleged forcible dis-possession and wholly

untenable plea about the period of tenancy has been rightly

rejected by the Courts below. Clauses (a) and (d) of Rule 11

have full application to the facts of the case. The whole

purpose in filing the suit was to somehow or other remains

in possession of the shops which were leased out to them for

certain periods. As a result of the actions of the

plaintiffs, the trust would have been put to huge financial

loss. All this according to him, disentitle the appellants

from any relief under Article 136 of the Constitution.

Order VII Rule 11 of the Code reads as follows:

Order VII Rule 11: Rejection of plaint. \026

The plaint shall be rejected in the

following cases :-

(a) where it does not disclose a cause of

action;

(b) where the relief claimed is

undervalued, and the plaintiff, on being

required by the Court to correct the

valuation within a time to be fixed by the

court, fails to do so;

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(c) where the relief claims is properly

valued but the plaint is written upon paper

insufficiently stamped, and the plaintiff,

on being required by the Court to supply the

requisite stamp-paper within a time to be

fixed by the Court, fails to do so;

(d) where the suit appears from the

statement in the plaint to be barred by any

law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply

with the provisions of rule 9.

Provided that the time fixed by the

Court for the correction of the valuation or

supplying of the requisite stamp-paper shall

not be extended unless the Court, for

reasons to be recorded, is satisfied that

the plaintiff was prevented by any cause of

an exceptional nature for correcting the

valuation or supplying the requisite stamp-

paper, as the case may be, within the time

fixed by the Court and that refusal to

extend such time would cause grave injustice

to the plaintiff."

In the present case the respondent-trust has relied

upon clauses (a) and (d) of Rule 11.

Before dealing with the factual scenario, the spectrum

of Order VII Rule 11 in the legal ambit needs to be noted.

In Saleem Bhai and Ors. v. State of Maharashtra and

Ors. (2003 (1) SCC 557) it was held with reference to Order

VII Rule 11 of the Code that the relevant facts which need

to be looked into for deciding an application thereunder are

the averments in the plaint. The trial Court can exercise

the power at any stage of the suit - before registering the

plaint or after issuing summons to the defendant at any time

before the conclusion of the trial. For the purposes of

deciding an application under clauses (a) and (d) of Order

VII Rule 11 of the Code, the averments in the plaint are the

germane; the pleas taken by the defendant in the written

statement would be wholly irrelevant at that stage.

In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal and

Ors. (1998 (2) SCC 70) it was held that the basic question

to be decided while dealing with an application filed under

Order VII Rule 11 of the Code is whether a real cause of

action has been set out in the plaint or something purely

illusory has been stated with a view to get out of Order VII

Rule 11 of the Code.

The trial Court must remember that if on a meaningful

and not formal reading of the plaint it is manifestly

vexatious and meritless in the sense of not disclosing a

clear right to sue, it should exercise the power under Order

VII Rule 11 of the Code taking care to see that the ground

mentioned therein is fulfilled. If clever drafting has

created the illusion of a cause of action, it has to be

nipped in the bud at the first hearing by examining the

party searchingly under Order X of the Code. (See T.

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Arivandandam v. T.V. Satyapal and Anr. (1977 (4) SCC 467)

It is trite law that not any particular plea has to be

considered, and the whole plaint has to be read. As was

observed by this Court in Roop Lal Sathi v. Nachhattar Singh

Gill (1982 (3) SCC 487), only a part of the plaint cannot be

rejected and if no cause of action is disclosed, the plaint

as a whole must be rejected.

In Raptakos Brett & Co.Ltd. v. Ganesh Property (1998

(7) SCC 184) it was observed that the averments in the

plaint as a whole have to be seen to find out whether clause

(d) of Rule 11 of Order VII was applicable.

There cannot be any compartmentalization, dissection,

segregation and inversions of the language of various

paragraphs in the plaint. If such a course is adopted it

would run counter to the cardinal canon of interpretation

according to which a pleading has to be read as a whole to

ascertain its true import. It is not permissible to cull out

a sentence or a passage and to read it out of the context in

isolation. Although it is the substance and not merely the

form that has to be looked into, the pleading has to be

construed as it stands without addition or subtraction or

words or change of its apparent grammatical sense. The

intention of the party concerned is to be gathered primarily

from the tenor and terms of his pleadings taken as a whole.

At the same time it should be borne in mind that no pedantic

approach should be adopted to defeat justice on hair-

splitting technicalities.

Submission of learned counsel for respondent No.2-

trust was that requirement of law being reading the plaint

in its totality, the appellants cannot take the plea that

they would give up or relinquish some of the reliefs sought

for. That would not be permissible. The plea clearly

overlooks the basic distinction between statements of the

facts disclosing cause of action and the reliefs sought for.

The reliefs claimed do not constitute the cause of action.

On the contrary, they constitute the entitlement, if any, on

the basis of pleaded facts. As indicated above, Order VI

Rule 2 requires that pleadings shall contain and contain

only a statement in a concise form of the material facts on

which the party pleading relies for his claim. If the plea

of Mr. Savant, learned counsel for the respondent-trust is

accepted the distinction between the statement of material

facts and the reliance on them for the claim shall be

obliterated. What is required in law is not the piecemeal

reading of the plaint but in its entirety. Whether the

reliefs would be granted on the pleaded facts and the

evidence adduced is totally different from the relief

claimed. All the reliefs claimed may not be allowed to a

party on the pleadings and the evidence adduced. Whether

part of the relief cannot be granted by the Civil Court is a

different matter from saying that because of a combined

claim of reliefs the jurisdiction is ousted or no cause of

action is disclosed. Considering the reliefs claimed vis-a-

vis the pleadings would not mean compartmentalization or

segregation, in that sense. The plea raised by the

respondent-trust is therefore clearly unacceptable.

Keeping in view the aforesaid principles the reliefs

sought for in the suit as quoted supra have to be

considered. The real object of Order VII Rule 11 of the Code

is to keep out of courts irresponsible law suits. Therefore,

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the Order X of the Code is a tool in the hands of the Courts

by resorting to which and by searching examination of the

party in case the Court is prima facie 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 can be

exercised.

As noted supra, the Order VII Rule 11 does not justify

rejection of any particular portion of the plaint. Order VI

Rule 16 of the Code is relevant in this regard. It deals

with 'striking out pleadings'. It has three clauses

permitting the Court at any stage of the proceeding to

strike out or amend any matter in any pleading i.e. (a)

which may be unnecessary, scandalous, frivolous or

vexatious, or, (b) which may tend to prejudice, embarrass or

delay the fair trial of the suit, or, (c) which is otherwise

an abuse of the process of the Court.

Order VI Rule 2(1) of the Code states the basic and

cardinal rule of pleadings and declares that the pleading

has to state material facts and not the evidence. It

mandates that every pleading shall contain, and contain

only, a statement in a concise form of the material facts on

which the party pleading relies for his claim or defence, as

the case may be, but not the evidence by which they are to

be proved.

There is distinction between 'material facts' and

'particulars'. The words 'material facts' show that the

facts necessary to formulate a complete cause of action

must be stated. Omission of a single material fact leads to

an incomplete cause of action and the statement or plaint

becomes bad. The distinction which has been made between

'material facts' and 'particulars' was brought by Scott,

L.J. in Bruce v. Odhams Press Ltd. (1936) 1 KB 697 in the

following passage :

The cardinal provision in Rule 4 is that the

statement of claim must state the material

facts. The word "material" means necessary

for the purpose of formulating a complete

cause of action; and if any one "material"

statement is omitted, the statement of claim

is bad; it is "demurrable" in the old

phraseology, and in the new is liable to be

"struck out" under R.S.C. Order XXV, Rule 4

(see Philipps v. Philipps ((1878) 4 QBD

127)); or "a further and better statement of

claim" may be ordered under Rule 7.

The function of "particulars" under Rule 6

is quite different. They are not to be used

in order to fill material gaps in a

demurrable statement of claim - gaps which

ought to have been filled by appropriate

statements of the various material facts

which together constitute the plaintiff's

cause of action. The use of particulars is

intended to meet a further and quite

separate requirement of pleading, imposed in

fairness and justice to the defendant. Their

function is to fill in the picture of the

plaintiff's cause of action with information

sufficiently detailed to put the defendant

on his guard as to the case he had to meet

and to enable him to prepare for trial.

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The dictum of Scott, L.J. in Bruce case (supra) has been

quoted with approval by this Court in Samant N. Balkrishna

v. George Fernandez (1969 (3) SCC 238), and the distinction

between "material facts" and "particulars" was brought

out in the following terms:

The word 'material' shows that the facts

necessary to formulate a complete cause of

action must be stated. Omission of a single

material fact leads to an incomplete cause

of action and the statement of claim becomes

bad. The function of particulars is to

present as full a picture of the cause of

action with such further information in

detail as to make the opposite party

understand the case he will have to meet.

Rule 11 of Order VII 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 law ostensibly does not contemplate at

any stage when the objections can be raised, and also does

not say in express terms about the filing of a written

statement. Instead, the word 'shall' is used clearly

implying thereby that it casts a duty on the Court to

perform its obligations in rejecting the plaint when the

same is hit by any of the infirmities provided in the four

clauses of Rule 11, even without intervention of the

defendant. In any event, rejection of the plaint under Rule

11 does not preclude the plaintiffs from presenting a fresh

plaint in terms of Rule 13.

According to Mr. Mohta appearing for the appellants, as

noted above, the reliefs are separable and merely because

some of the reliefs cannot be granted by the Civil Court it

would entail an automatic rejection of the old plaint. In

fact he submitted that some of the reliefs would be given up

by the plaintiffs in the suit itself. It is true as

contended by Mr. Savant learned counsel appearing for the

respondent-trust by ingenious drafting a cause of action in

the nature of red herrings cannot be brought into judicial

arena. But a reading of the reliefs shows that some of them

can only be considered by the Civil Court.

Under Order II Rule 1 of the Code which contains

provisions of mandatory nature, the requirement is that the

plaintiffs are duty bound to claim the entire relief. The

suit has to be so framed as to afford ground for final

decision upon the subjects in dispute and to prevent further

litigation concerning them. Rule 2 further enjoins on the

plaintiff to include the whole of the claim which the

plaintiff is entitled to make in respect of the cause of

action. If the plaintiff omits to sue or intentionally

relinquishes any portion of his claim, it is not permissible

for him to sue in respect of the portion so omitted or

relinguished afterwards. If the plaintiffs as contended by

Mr. Mohta want to relinquish some reliefs prayer in that

regard shall be done before the trial Court. A reading of

the plaint and the reliefs along with the contents of the

plaint goes to show that the main dispute relates to the

question of continuance of tenancy and the period of

tenancy. They are in essence unrelated with the other

reliefs regarding enquiry into the affairs of the trust.

Such enquiries can only be undertaken under Section 50 of

the Act. For instituting the suit of the nature specified in

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Section 50, prior consent of the Charity Commissioner is

necessary under Section 51. To that extent Mr. Savant is

right that the reliefs relatable to Section 50 would require

a prior consent in terms of Section 51. If the plaintiffs

give up those reliefs claimed in accordance with law, the

question would be whether a cause of action for the residual

claims/reliefs warrant continuance of the suit. The nature

of the dispute is to be resolved by the Civil Court. The

question of tenancy cannot be decided under Section 50 of

the Act. Section 51 is applicable only to suits which are

filed by a person having interest in the trust. A tenant of

the trust does not fall within the category of a person

having an interest in the trust. Except relief in Para D of

the plaint, the other reliefs could be claimed before and

can be considered and adjudicated by the Civil Courts and

the bar or impediment in Sections 50 and 51 of the Act will

have no relevance or application to the other reliefs. That

being so, Sections 50 and 51 of the Act would not have any

application to that part of the relief which relates to

question of tenancy, the term of tenancy and the period of

tenancy. The inevitable conclusion therefore is that Courts

below were not justified in directing rejection of the

plaint. However, the adjudication in the suit would be

restricted to the question of tenancy, terms of tenancy and

the period of tenancy only. For the rest of the reliefs, the

plaintiffs shall be permitted within a month from today to

make such application as warranted in law for relinquishing

and/or giving up claim for other reliefs.

Another plea which has been raised with some amount of

vehemence by the appellant is the alleged forcible

possession. This plea is strongly disputed by learned

counsel for the respondent-trust who says that the

possession was taken in accordance with law and as noted

above, by voluntary surrendering by most of the tenants.

Much of this controversy revolves from the date till the

order of injunction passed by the trial Court operated.

There are two different sets of principles which have

to be borne in mind regarding course to be adopted in case

of forcible dispossession. Taking up the first aspect, it is

true that where a person is in settled possession of

property, even on the assumption that he has no right to

remain in property, he cannot be disposed by the owner

except by recourse of law. This principle is laid down in

Section 6 of the Specific Relief Act, 1963. That Section

says that if any person is dispossessed without his consent

from immovable property other wise than in due course of

law, he or any person claiming through him may, by suit,

recover possession thereof, notwithstanding any other title

that may be set up in such suit. That a person without title

but in "settled" possession \026 as against mere fugitive

possession \026 can get back possession if forcibly

dispossessed or rather, if dispossessed otherwise than by

due process of law, has been laid down in several cases. It

was so held by this Court in Yashwant Singh v. Jagdish Singh

(AIR 1968 SC 620), Krishna Ram Mohate v. Mrs. Shobha Venkata

Rao, (1989 (4) SCC 131,at p.136), Ram Rattan v. State of

U.P. (1977 (1) SCC 188), and State of U.P. v. Maharaja

Dharmender Prasad Singh (1989 (2) SCC 505). The leading

decision quoted in these rulings is the decision of the

Bombay High Court in K.K. Verma v. Union of India (AIR 1954

Bom. 358).

Now the other aspect of the matter needs to be noted.

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Assuming a trespasser ousted can seek restoration of

possession under Section 6 of the Specific Relief Act, 1963

can the trespasser seek injunction against the true owner?

This question does not entirely depend upon Section 6 of the

Specific Relief Act, but mainly depends upon certain general

principles applicable to the law of injunctions and as to

the scope of the exercise of discretion while granting

injunction? In Mahadeo Savlaram Sheike v. Pune Municipal

Corporation (1995 (3) SCC 33), it was held, after referring

to Woodrofe on "Law relating to injunction; L.C. Goyal 'Law

of injunctions; David Bean 'Injunction' Jayce on Injunctions

and other leading Articles on the subject that the appellant

who was a trespasser in possession could not seek injunction

against the true owner. In that context this Court quoted

Shiv Kumar Chadha v. MCD (1993 (3) SCC 161) wherein it was

observed that injunction is discretionary and that:

"Judicial proceedings cannot be used

to protect or to perpetuate a wrong

committed by a person who approaches the

Court".

Reference was also made to Dalpat Kumar v. Prahlad

Singh (1992 (1) SCC 719) in regard to the meaning of the

words 'prima facie case' and 'balance of convenience' and

observed in Mahadeo's case (supra) that:

"It is settled law that no injunction

could be granted against the owner at the

instance of a person in unlawful

possession."

The question of forcible possession as claimed is also

a matter which can be pressed into service by the parties

before the trial Court and if raised the Court shall deal

with it considering its relevance to the suit and accept it

or otherwise reject the plea in accordance with law. We do

not think it necessary to express any opinion in that

regard.

Learned counsel for the respondent-trust has urged with

some amount of vehemence about the conduct of the plaintiffs

in not depositing the arrears of money and the effect of 22

of the tenants out of total 44 tenants surrendering

possession. This is a matter which can be considered in the

trial itself so far as it is relevant. It was submitted by

learned counsel for the trust that in any event the District

Court was the only Court having jurisdiction and not the

Court where the suit was filed. This aspect does not appear

to have been specifically urged before the Courts below. So

we do not think it appropriate to express our opinion

thereon. As regards the question of arrears it shall be

open to the respondent-trust to move the trial Court for

such directions as are available in law. Looking into the

nature of dispute it would be appropriate if the trial Court

makes an effort to complete the trial within six months from

the date of the judgment. The parties are directed to

cooperate for disposal of the suit early within the

stipulated time. The appeal is allowed to the extent

indicated without any order as to costs.

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