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CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.87 OF 2019
Dhananjay Shivram Mapare and Ors. ...Applicants
Mr. S.M. Gorwadkar, Senior Advocate i/b. Mr. S.H. Gangal for the
Respondents.
ORAL JUDGMENT
1) Revisionary jurisdiction of this Court is invoked for setting up a challenge to the order dated 22 December 2017 passed by the Joint Civil Judge, Junior Division, Daund, rejecting the application preferred by the Applicants/Defendants seeking rejection of Plaint under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 (the Code).
2) There is a chequered history of litigation between the parties. The great-grandmother of Applicant Nos.[1] and 2 initiated the litigation by filing Special Civil Suit No.76 of 1996 for partition and separate possession against Respondent No.1 and his wife. Said Suit was dismissed on 30 October 1999. The Plaintiffs in that Suit filed First 2025:BHC-AS:49069 Appeal No.192 of 2001 before this Court. By Judgment and Order dated 3 February 2011, the First Appeal was allowed and the Suit was remanded for fresh decision. Respondent No.1 and his wife sought review of order dated 3 February 2011 and their Review Petition came to be dismissed. After remand, the Suit was renumbered as RCS No. 65 of 2012. In that Suit, the Trial Court passed a preliminary decree for partition fixing the shares between the parties. Aggrieved by the preliminary decree, Respondent No.1 and his wife filed Regular Civil Appeal No.82 of 2012 before the District Court, Baramati. The Appeal came to be dismissed on 22 April 2013. Respondents preferred Second Appeal in this Court, which came to be dismissed on 24 October 2013. Respondents sought review of order dated 24 October 2013 and the Review Petition was dismissed on 3 March 2016. True to their litigative spirit, Respondents approached the Hon’ble Apex Court by filing SLP No.008436 of 2016 challenging the order of dismissal of Second Appeal and also filed a separate SLP challenging the rejection of Review Petition. Both the SLPs came to be dismissed by order dated 8 April 2016.
3) Since the preliminary decree was in respect of agricultural land, a precept was sent to Collector for effecting partition as per the preliminary decree. The Collector dispatched the proceedings to Tehsildar, Daund for effecting partition. The Applicants filed Final Decree Application No.1 of 2012 before the Trial Court for drawl of final decree in pursuance of the preliminary decree. Respondents preferred Application at Exhibit-72 in the Final Decree Application No.1 of 2012 seeking alteration in the shares in the preliminary decree. The said application was dismissed on 28 September 2016. Against dismissal of the said application, Respondents preferred Civil Appeal No.146 of 2016 before the District Court, Baramati. The Civil Appeal No.146 of 2016 came to be finally dismissed by the Appellate Court vide Judgment and Order dated 24 March 2017. The Respondents have preferred Second Appeal (stamp) No.11108 of 2017 in this Court, which came to be allowed and Civil Appeal No.146 of 2016 was remanded for fresh decision by the first Appellate Court. After remand, the Appeal was reheard and again dismissed on 17 November 2017. Against the order of the first Appellate Court dated 17 November 2017 Respondents have preferred Second Appeal No.674 of 2018, which is pending before this Court.
4) Having failed in their defences in Special Civil Suit No.76 of 1996, which was renumbered as RCS 65 of 2012 right upto the Apex Court and having failed in their objection filed in the Final Decree Application No.1 of 2012 upto the first Appellate Court, Respondents came out with an ingenious idea of filing an independent Suit seeking declaration that the decree passed in Suit No.65 of 2012 was obtained by fraud and that therefore same does not bind them. This is how Regular Civil Suit No.250 of 2017 has been instituted by the Respondents. Applicants filed application under Order VII Rule 11 of the Code seeking rejection of Plaint in Suit No.250 of 2017, which has been rejected by the impugned order dated 22 December 2017, which is the subject matter of challenge in the present Revision Application.
5) I have heard Mr. Sanghvi, the learned counsel appearing for the Applicant, who would submit that there is absolutely no cause of action for the Plaintiffs/ Respondents to file Regular Civil Suit No.250 of 2017. That the decree passed in R.C.S. No.65 of 2012 has attained finality right upto the Apex Court. That the suit is not maintainable in law and is filed only for delaying execution of the decree passed in previous round of litigation. That R.C.S. No.250 of 2017 is a vexatious litigation initiated by the Respondents, which is required to be nipped in the bud by having recourse to Order VII Rule 11 of the Code.
6) Per contra, Mr. Gorwadkar, the learned Senior Advocate appearing for the Respondents-Plaintiffs would support the order passed by the Trial Court contending that the Plaint fairly discloses cause of action, which has occurred in April 2017. He would submit that in April 2017 Respondents discovered the fact that Plaintiffs in R.C.S. No.65 of 2012 had not included several other properties in the Suit and had obtained the decree by playing fraud on the Court. He would submit that had the properties described in the Plaint in R.C.S. No.250 of 2017 were disclosed in the Plaint filed in R.C.S. No.65 of 2012, shares of the parties would have been adjusted accordingly. That Plaintiffs of R.C.S. No.65 of 2012 deliberately suppressed alienation of properties and conveniently filed Suit for partition only in respect of remainder of the properties. He would submit that it is not the duty of the Defendant in the Suit to instill enquiry into availability of all joint family property. Alienation was in the exclusive knowledge of Plaintiffs in R.C.S. No.65 of 2012, who knowingly and deliberately suppressed the same. He would submit that the decree passed in R.C.S. No.65 of 2012 is a nullity on account of fraud on the part of the Plaintiffs. He would rely upon judgment of the Apex Court in S.P. Chengalvaraya Naidu (dead) by LRs. V/s. Jagannath (dead) by LRs and others[1] in support of contention that it is the duty of the Plaintiffs to approach the Court with clean hands and non-disclosure of relevant material to the Court amounts to fraud. He would submit that judgment in S.P. Chengalvaraya Naidu (supra) arises out of preliminary decree, which was procured by playing fraud on the Court, which is also the case in the present Revision. He would also rely upon judgment of this Court in Lalitabai w/o. Ishwarprasad Chopra V/s. Pundlik Dayaram Rangari through his LRs. Shantabai wd/o Pundlik Rangari and others[2] and Narayansingh s/o Omkarsingh and Another V/s. Aruna Wd/o Shyamrao Patil and Anorther[3] in support of his contention that if the decree is obtained by playing fraud on Court, the appropriate course of action is to institute a fresh Suit. He would accordingly pray for dismissal of the Revision Application.
7) Rival contentions of the parties now fall for my consideration.
8) It must be observed at the very outset that the present case exhibits unending litigation spree undertaken by the Respondents, who possibly believe that engaging the Applicants in unending maze of litigation would someday bring them to settlement table. As observed while narrating the facts of the case, the Suit for partition was instituted in the year 1996, which has been defended by Respondent Nos.[1] to 4 in all possible hierarchical levels upto the Apex Court. The preliminary decree for partition in Special Civil Suit No.76 of 1996,
2007 (1) Mh.L.J. 782 2020 (3) Mh.L.J. 206 which is renumbered as R.C.S. No.65 of 2012, has attained finality after SLP was dismissed by the Apex Court on 8 April 2016. After the decree attained finality, the Respondents first came out with an idea of controverting the preliminary decree by filing objection in the Final Decree Application, which was rejected on 28 September 1996. That order was carried further in appeal before the first Appellate Court at Baramati and thereafter before this Court in Second Appeal. After remand of proceedings in the Second Appeal, the first Appellate Court at Baramati has finally dismissed Civil Appeal No.146 of 2016 on 17 November 2017 upholding the order of the Trial Court rejecting the objection to the Final Decree Application. The Respondent have not rested and have filed Second Appeal No.674 of 2018, which is pending before this Court.
9) After having failed in the litigation process for partition, which remained pending for over 20 years, and after having failed in objecting to Final Decree Application which litigation also remained pending for next two years, Respondents have come out with a noval idea of instituting an independent Suit No.250 of 2017. The plea raised in the said Suit is that Plaintiffs in R.C.S. No.65 of 2012 had not disclosed alienation of some of the properties by deceased Shivram. R.C.S. No.250 of 2017 appears to have been instituted on 6 July 2017 i.e. after a year from the date of dismissal of the SLP by the Apex Court. Alleged alienation of some of the joint family properties by Shivram could have been one of the defences available to the Respondents in the partition suit, which they either raised or could have raised while defending that suit. They had 20 long years to raise that defence as the litigation remained pending before various hierarchical courts upto the Apex Court. It cannot be a matter of coincident that within one year of dismissal of SLP, Respondents suddenly discovered that deceased Shivram had alienated some of the properties, which Plaintiffs had allegedly not disclosed in R.C.S. No.65 of 2012. The timeline of filing of fresh suit would leave no manner of doubt that the Suit is essentially aimed keeping some form of litigation pending with the Applicants. The reason for engaging in continuous spree of litigation is difficult to guess. During the course of hearing of the Application, this Court did notice submission made on behalf of the Respondents that despite giving settlement offer, the Applicants are not settling the disputes. Filing of the fresh suit is thus aimed only at bringing the Applicants to the table for settlement.
10) From the chronology of events narrated above, it is more than apparent that Suit No.250 of 2017 is filed for the purpose of keeping the Applicants engaged in continuous process of litigation. Provisions of Order VII Rule 11 of the Code are meant for the purpose of nipping in the bud vexatious litigations, which are instituted in absence of any cause of action. There is no cause of action for Plaintiffs to institute R.C.S. No.250 of 2017. The alleged defence of alienation of some of the properties by deceased-Shivram, which Respondents did not raise in litigation which ensued for over 20 years, cannot be permitted to be introduced in the form of a fresh Suit. Alleged acquisition of knowledge by the Respondents in April 2017 of alienation of some of the properties by Shivram cannot give rise to any cause of action for institution of a fresh Suit. Even otherwise, from the averments in the Plaint it appears that sale transactions were contemporaneously given effect in the revenue records by certification of mutation entries. It therefore becomes difficult to otherwise believe that Respondents acquired knowledge of alienation to said property in April-2017.
11) The issue of consideration is if the Court notices that the suit is gross abuse of process of law and is filing for oblique purpose of forcing the Defendants for settlement in absence of any real cause of action, whether the Court would remain a mute spectator and allow the judicial process to be misused by a vexatious litigant. The Court is not supposed to blindly accept the averment in the pliant about accrual of cause of action. It must also necessarily enquire whether there is any cause of action for filing the suit. The concept of ‘cause of action’ serves as the cornerstone upon which a suit is built. The term ‘cause of action’ refers to the set of facts or circumstances that give rise to a legal claim, forming the basis for initiating the suit. The Court therefore must enquire whether the bundle of facts pleaded in the plaint make out Plaintiff’s right to sue. For that purpose, reading of the plaint cannot be ‘formal’. It needs to be ‘meaningful’. This is because Plaint drafted by a lawyer is most likely to have an averment of accrual of cause of action. Such averment is not to be plainly accepted by formal reading of the plaint. The Court must satisfy itself that the cause of action pleaded is not a creation of fiction. If the Court makes a meaningful reading of the Plaint and comes to the conclusion that the suit is manifestly vexatious without exhibiting Plaintiff’s real right to sue, such suit needs to be nipped in the bud instead of making the Defendants undergo the ordeal of the lengthy trial. These legal principles have been stated in various judgments of the Apex Court. It would be apposite to refer to few of them. In Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) dead through legal representatives[4]
23.2. The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.
23.3. The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words: (SCC p.324, para 12) “12....The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action.”
23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.
23.6. Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law. xxx
23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC.
24. “Cause of action” means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
24.2. In T. Arivanandam v. T.V. Satyapal this Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words: (SCC p. 470, para 5) “5....The learned Munsif must remember that if on a meaningful – not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11 C.P.C. 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...”
24.3. Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.
24.4. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court. (emphasis added)
12) In K. Akbar Ali Vs. Umar Khan[5], the Apex Court has held as under: In any case, an application under Order VII Rule 11 of the CPC for rejection of the plaint requires a meaningful reading of the plaint as a whole. As held by this Court in ITC v. Debts Recovery Appellate Tribunal reported in AIR 1998 SC 634, clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Similarly the Court must see that the bar in law of the suit is not camouflaged by devious and clever drafting of the plaint. Moreover, the provisions of Order VII Rue 11 are not exhaustive and the Court has the inherent power to see that frivolous or vexatious litigations are not allowed to consume the time of the Court. (emphasis applied)
13) More recently, in Shri Mukund Bhavan Trust v. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle[6], the Apex Court has held as under: (2021)14 SCC 51
41. However, the trial court erroneously dismissed the application filed by the appellants under Order 7 Rule 11(d)CPC. The High Court also erred in affirming the same, keeping the question of limitation open to be considered by the trial court after considering the evidence along with other issues, without deciding the core issue on the basis of the averments made by Respondent 1 in the plaint as mandated by Order 7 Rule 11(d)CPC. The spirit and intention of Order 7 Rule 11(d)CPC is only for the courts to nip at its bud when any litigation ex facie appears to be a clear abuse of process. The courts by being reluctant only cause more harm to the defendants by forcing them to undergo the ordeal of leading evidence. Therefore, we hold that the plaint is liable to be rejected at the threshold. (emphasis added)
14) Thus, it is the duty of the Courts to ensure that a devious litigation instituted by a vexatious Plaintiff is nipped right in the bud by rejecting the plaint at the threshold instead of forcing the Defendant to undergo the ordeal of lengthy trial.
15) I have gone through the averments in the Plaint filed in R.C.S. No.250 of 2017, in which the only cause of action pleaded is alleged discovery by Plaintiffs in April 2017 about alienation of some lands by deceased Shivram. The suit is filed for seeking a declaration that the decree passed in previous round of litigation is obtained by fraud and hence not binding on Plaintiffs. The issue is whether such alleged discovery would alone constitute a cause of action for maintaining an independent suit when the issue of partition and separate shares has attained finality upto the Apex Court. As observed above the allegation of alienation of lands by deceased Shivram was a defence available to the Plaintiffs of RCS No. 250 of 2017 in partition suit proceedings of which remained pending for over 20 years. There is thus no real cause of action for the Plaintiffs to file R.C.S. No.250 of
2017. Alleged discovery of something which could have been a defence in previous round of litigation cannot give rise to a cause of action for filing a fresh suit seeking declaration that the decree is nullity. The Court must adopt a cautious approach where a party to previous round of litigation files a fresh suit alleging fraud to nullify the fruits of long litigation undergone by the successful party. If all such suits are held to be maintainable, it will be easy for loosing party to simply allege fraud and suppression and involve the opposite party in another litigation process to vex and harass him. Therefore, I have considered the averments of the plaint in R.C.S. No.250 of 2017 and upon perusal thereof, I have no hesitation in mind that the suit is aimed only at engaging the Defendants/Applicants in continuous spree of litigation. Filing of R.C.S. No.250 of 2017 is a vexatious litigation, which must be thrown out right at the inception rather than permitting the Plaintiffs abuse the process of law. Courts cannot aid the Plaintiffs by permitting its process to be misused for bringing the Defendants to settlement table.
16) The very objective behind making the provision for rejection of Plaint under Order VII Rule 11 of the Code is to ensure that a vexatious litigation is brought to an end at the threshold instead of making the Defendants to undergo the rigmarole of lengthy trial. If the provisions of Order VII Rule 11 of the Code are not invoked in the present case so as to prevent the vexatious Plaintiffs from engaging Defendants in a maze of litigation, the provision for rejection of Plaint under Order VII Rule 11 of the Code would be rendered meaningless. In my view therefore this is a perfect case where fresh round of baseless and vexatious litigation commenced by the Plaintiffs is brought to an immediate halt.
17) The Trial Court has grossly erred in not appreciating the above position and not exercising power under Order VII Rule 11 of the Code for rejecting the Plaint in Suit No.250 of 2017. By dismissing the Defendants’ application, it has permitted the process of law to be grossly abused by vexatious Plaintiffs.
18) Reliance by Mr. Gorwadkar on judgment of the Apex Court in S.P. Chengalvaraya Naidu (supra) does not cut any ice. It cannot be contended that Applicants have played fraud in securing preliminary decree, which has been upheld upto the Hon’ble Supreme Court. Failure on the part of the Respondents to raise the defence of alienation of some of the lands by deceased Shivram cannot be branded as fraud on the part of the Plaintiffs in R.C.S. No.65 of 2012. The submission that it was not the duty of Defendants in RCS No. 65 of 2012 to find out alienations effected by deceased Shivram also does not appeal this Court. If the Defendants in RCS No. 65 of 2012 were negligent in defending the suit for partition and did not raise any particular defence, they cannot be permitted to institute a fresh suit under a specious plea that the Plaintiffs therein suppressed any alienation. Since there is no semblance of element of fraud involved in previous round of litigation, which has ensued upto the Apex Court for 20 long years, ratio of the judgment in S.P. Chengalvaraya Naidu would have no application to the facts of the present case. Since there is no element of fraud it cannot be contended that the decree in R.C.S. No.65 of 2012 has been obtained by fraud. Therefore, reliance on judgments of this Court in Lalitabai w/o. Ishwarprasad Chopra and Narayansingh s/o Omkarsingh and Another (supra) would not assist the case of the Respondents.
19) In my view therefore, the order dated 22 December 2017 passed by the Trial Court is indefensible and liable to be set aside.
20) I accordingly proceed to pass the following order:
(i) Civil Revision Application is allowed.
(ii) Order dated 22 December 2017 passed by the Joint
Civil Judge, Junior Division, Daund, on Application at Exhibit-27 is set aside and Application at Exhibit 27 is allowed in terms of prayers made therein.
(iii) Plaint in R.C.S. No.250 of 2017 is rejected.
(iv) The Trial Court shall pass a formal order of dismissal of R.C.S. No.250 of 2017.
21) Civil Revision Application is accordingly allowed. There shall be no orders as to costs. [SANDEEP V. MARNE, J.] Designation: PA To Honourable Judge