Unknown vs Syeda
2022 Latest Caselaw 1810 AP

           THE HON'BLE SRI JUSTICE NINALA JAYASURYA

             CIVIL REVISION PETITION No.1360 of 2021

ORDER:

The present Civil Revision Petition is filed aggrieved by the Orders

dated 08.11.2021 passed in O.S.No.Nil in C.F.R.No.1741 of 2021 on the

file of the Court of Principal Senior Civil Judge, Tenali, Guntur District.

2. Heard the party-in-person, Advocate by profession.

3. As the grievance is with regard to rejection of the plaint at the

stage of registering the suit, notice to the respondent No.1 is deemed not

necessary. Respondents 2 to 9 are shown as formal parties and no relief is

sought against them as per the Cause Title.

4. The petitioner filed the above suit against the 1st respondent herein

for recovery of an amount of Rs.40,00,000/- towards Advocate's

Fee/Goodwill. In the plaint it was inter alia stated that one late

M.Parujathavalli, sister of respondents 2 and 3 herein and paternal aunt of

respondents 1 and 4 to 8, during her life time, acquired some property

from her late husband, by way of Partition Deed in the year 1963 and she

has no children. To claim rights over the properties of late

M.Parujathavalli, a civil suit for declaration in O.S.No.21 of 2020 is filed on

the file of the Court of the XI Additional District Judge, Guntur at Tenali

through the petitioner herein on behalf of the respondents. The petitioner

herein as their counsel appeared in the said suit before the in-charge

Court at Guntur on all the occasions and examined P.W.1, P.W.2 and

P.W.3. The said suit was dismissed vide Judgment and Decree dated

25.08.2021. It is further averred that he was not paid any amount towards

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his Professional Fee other than Court Fee and other related expenses and

that all the amounts were paid online and that the 1st respondent

promised to pay considerable amount after disposal of the suit. It is

specifically averred that the 1st respondent voluntarily executed an

Undertaking dated 04.08.2021 at Tenali stating that on behalf of all the

parties to the suit, he undertake to pay an amount of Rs.40,00,000/-

towards Professional Fee/Goodwill etc., to the petitioner herein. Seeking

recovery of the said amount, the suit is filed.

5. The petitioner/plaintiff presented the plaint on 01.11.2021 and the

same is returned by the office, with the following objections:-

i) Stamp duty and penalty is to be paid on the Undertaking;

ii) Copies to the defendants are to be filed;

iii) Covers with postal stamps are to be filed.

6. On 02.11.2021 the petitioner re-submitted the returned plaint

complying with the following endorsement:-

"(1) The plaintiff files Undertaking affidavit to pay the deficit duty and penalty on the undertaking at the time of trial or whenever this Court directs, (2) other defendants are deleted in the plaint, fair copy of the plaint in duplicate is filed; and (3) In view of the compliance of No.2, object No.3 is covered, and presented the same."

7. On the same day, the office has returned the plaint with the following objections:-

"(1) How the suit is maintainable basing on the invalid agreement/undertaking and what is the legal liability to enter into such undertaking; (2) Prima facie it appears that claiming of suit amount i.e., advocate fee or goodwill against the Advocate's Fee Act, 1961, it should be explained; (3) How the parties are competent to enter into hide contract and what is the legal liability, to be explained; (4) The plaintiff is directed to explain the relevant rule/provisions as to how such huge amount can be claimed and any authority may be explained."

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8. On 03.11.2021 the returned papers were re-submitted along with

the agreement and citations with the following endorsement:-

"(1) When the undertaking was executed by the defendant on his own unilaterally, there is legal liability; (2) Advocate's Fee Act 1961 has no bearing on the present suit as the defendant voluntarily executed the undertaking. The plaintiff has every legal right to the suit claim on the undertaking. It is premature stage and plaintiff's claim is to be decided only after due trial; (3) There is only one party who has executed the undertaking and there is no contract between the plaintiff and defendant. It is reiterated that it is a voluntary and unilateral undertaking."

9. Subsequently, the matter was called on the Bench and the counsel

for the petitioner was heard on the office objections, and by an Order

dated 08.11.2021, the plaint is rejected. Hence, the present Revision

Petition.

10. The learned party-in-person inter alia contends that the rejection of

the plaint at the threshold without examining the matter as to whether

there is any cause of action for filing the suit is not sustainable and

constitutes a material irregularity. He submits that the learned Trial Judge

went wrong in going into merits of the suit claim at the stage of scrutiny

by referring to the suit documents. He submits that such an approach is

not approved by this Court in a number of decisions and the Order under

Revision is therefore liable to be set aside. He submits that the objections

as raised by the learned Trial Court are not sustainable and though the

same were duly answered and the plaint was re-submitted, without

appreciating the same in a proper perspective, the Order under Revision

has been passed and that unless the same is set aside in exercise of

powers of this Court under Article 227 of the Constitution of India, the

petitioner would suffer serious prejudice and irreparable loss.

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11. In support of his contentions the learned party-in-person placed

reliance on the decisions rendered in Syed Hadi Ali Moosavi vs. Syeda

Taquia Moosavi and Others1, Kavitha Balaji and Others vs. State

of Telangana, Represented by the District Collector, Hyderabad2

and Manthena Seetha Rama Raju's case.

12. Before dealing with the Order under Revision, it would be

appropriate to refer to the relevant Case Law dealing with the rejection of

the plaint at the numbering stage. In K.N. Reddy vs. Defence

Personnel Co-Op. Housing Building Society Limited,

Secunderabad3, it was held that once, the plaint discloses description

and the cause of action in relation to the suit claim, Courts will not embark

upon roving enquiry on these aspects while considering even in an

application by the defendants for rejection of the plaint.

13. In Ahmed Nawab Alladin vs. Hyderabad Industries Limited4,

it was held that the Courts would prefer rather than rejecting the plaint,

which is almost a rarity, to adjudicate the suits on merits, than to discard

them at the threshold and the Hon'ble Supreme Court has been taking

consistently the view that only contents as a whole that need to be taken

into account for determining existence of cause of action

and jurisdiction.

14. In Mohd. Osman Ali vs. Second Junior Civil Judge, City Civil

Court, Hyderabad and another5, it was held that it is no part of the

duty of the District Court to examine, at the stage of scruity and

1 2019 (6) ALD 292 2 2017 (2) ALT 781 3 2014 (6) ALD 218 4 2015 (3) ALD 584 5 2010 (4) ALD 273

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registration of the suit, whether the plaintiff has adduced sufficient

documentary evidence in support of his prayer in his suit, and if the

plaintiffs fail to file proper material to substantiate his pleas, he will be

doing so at is peril. But, the Court cannot at the scrutiny stage insist on

the plaintiff to file documents which even in its opinion are relevant for

granting relief.

15. In Dantala Praveen vs. Bairaboina Veeramma and Others6, it

was held held that it is not the function of the Court at the numbering

stage to involve itself in examination of the purported discrepancy in a

minute manner and reject the plaint on such a ground at the threshold

and such a procedure is not sanctioned by law. Eventually the High Court

set aside the order, rejecting plaint and directed the lower Court o number

the plaint.

16. In Liverpool & London S.P. & I Association Limited vs. M.V.

Sea Success I7, the Hon'ble Apex Court held that whether a plaint

discloses 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. For the said purpose, the averments made in the plaint in its

entirety must be held to be correct.

17. In Syed Hadi Ali Moosavi's case (referred to (1) supra), when the

Telangana Wakf Tribunal rejected the plaint (petition), the High Court of

Telangana entertained revision, overruled the objection and directed the

Tribunal to number the suit.

6 2011 (4) ALD 775 7 2004 (9) SCC 512

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18. In Kavitha Balaji's case (referred to (2) supra), the learned Judge

after referring to a catena of Judgments inter alia opined that the question

whether a suit is barred by law or not depends upon the facts and

circumstances of each case and for that purpose only the plaint averments

are relevant and the Court would be not entitled to consider the case of

defence. The learned Judge at the Para 6 observed thus:-

6. Coming to the other ground on which the plaint rejected is under Order VII Rule 11 (a) CPC. It speaks that where the plaint on its reading does not disclose a cause of action. Cause of action is a bundle of essential facts and even as per Order VII Rule 1(e) what it speaks of the facts constituting cause of action and when it arose shall contain in the plaint, apart from Section 20 CPC speaks jurisdiction confers where cause of action in whole or part arises. The Apex Court in one of the expressions placed reliance in Kamala and Others Vs. K.T. Eshwara Sa and Others [(7) (2008) 12 SCC 661], held for application of barred by law or not to decide the conclusion to be drawn to the Court is only by seeing the plaint averments and nothing more at that stage as issues on merits of the matter would not be within the realm of the Court at that stage and that too when a mixed question of fact and law not only examination of plaint, but also evidence and order to be passed if at all in the earliest that to be taken up as a preliminary issue at best rather than rejection of the plaint by dwelling into with roving enquiry. In so far as on ground of cause of action, this expression by referring to several other expressions held at Para 40, particularly from Para 139 at page 562 of Liverpool & London S.P. & I Association Limited Vs. M.V. Sea Success I [(8) (2004) 9 SCC 512], that whether a plaint discloses a cause of action or is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in its entirety must be held to be correct.

19. The learned Judge after ultimate analysis of the matter set aside

the Order of the Trial Court, rejecting the plaint in the attending facts and

circumstances of the case.

20. It may be noted here that bundle of facts constitute cause of

action. Single and solitary instance may not be sufficient to decide that the

plaint does not disclose cause of action. If a reading of the entire plaint

discloses cause of action, no Court can reject or return the plaint on the

ground that it lacks cause of action.

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21. Applying the expression in the decisions referred to supra, the

correctness or otherwise of the Order under Revision is considered.

22. From a reading of the impugned Order the learned Trial Judge was

pleased to reject the plaint for the following among other reasons:-

i) The suit is filed basing on the Undertaking made by the 1st respondent/1st defendant on behalf of the other defendants to pay an amount of Rs.40,00,000/- towards Professional Fee or Goodwill and there is no promise or undertaking given by the other defendants to the 1st defendant;

ii) Undertaking given by the 1st respondent is not a valid agreement and there is no legal liability to enter into such undertaking;

iii) Other defendants did give any consent to act on behalf of other defendants;

iv) Prima facie it appears that claiming suit amount i.e., Advocate's Fee of Rs.40,00,000/- is against Advocate's Fee Rules, 1956;

v) Undertaking letter does not convey any legal liability and there is no cause of action for the suit;

vi) Defendants are not competent to enter into any such an Undertaking;

vii) There is no procedure contemplated under CPC to claim a suit amount basing on an undertaking;

23. As regards reasonings 1 to 3 as to whether an Undertaking was

given by the 1st respondent as alleged in the suit is a matter to be

substantiated by adducing evidence and as to whether any such promise

or Undertaking was given by the other defendants to the 1st defendant is

also a matter to be proved by adducing evidence and the opinion

expressed by the learned Trial Judge that the other defendants did not

give any consent to act on their behalf at the stage of numbering the suit

is premature and not tenable.

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24. So far as the objection that the suit amount i.e., Advocate's Fee of

Rs.40,00,000/- as claimed is against Advocate's Fee Rules, 1956 is also a

matter, which is to be considered in the light of the alleged Undertaking

stated to have been given by the 1st respondent. As to whether the

respondent is competent to enter into such an agreement and as to

whether any procedure is contemplated to claim the suit amount on the

basis of an Undertaking is required to be examined after looking into the

defence/stand of the 1st respondent and these are all not the aspects

which can be gone into at the stage of scrutiny.

25. As opined by the learned Judge in Syed Hadi Ali Moosavi's case

(referred to (1) supra), it is not the duty of the Court to examine at the

stage of scrutiny as to whether the plaintiff has adduced sufficient

documentary evidence in support of the relief claimed in the suit. At the

stage of registration of the suit, the Court has to satisfy itself as to

whether the plaint discloses cause of action and when there is semblance

of the same, the Court should lean towards numbering the suit and decide

the matter on merits, instead of rejecting at the threshold.

26. In the present case, a reading of the plaint certainly discloses cause

of action and with regard to the relief sought for, the same is to be

examined after undertaking a complete trial. The Court at the stage of

scrutiny/registering the suit cannot undertake the exercise of going

through the documents and considering the merits and demerits by

assuming the role of the defendants.

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27. In the present case, the learned Trial Judge examined the

petitioner's entitlement or otherwise of the suit claim with reference to the

alleged Undertaking and drawn conclusions at the threshold, which is not

sustainable and constitutes material irregularity.

28. In the light of the expressions laid down in the various decisions

referred to supra and the conclusions as arrived at by this Court with

reference to the above stated legal and factual position, the Order

impugned is not sustainable and the same is liable to be set aside.

29. Accordingly, the Civil Revision Petition is allowed, by setting aside

the Order dated 08.11.2021 passed in O.S.No.Nil in C.F.R.No.1741 of 2021

on the file of the Court of Principal Senior Civil Judge, Tenali, Guntur

District. The learned Trial Court is directed to number the suit, if the same

is otherwise in Order and decide the matter, in accordance with law,

without being influenced by any of the observations made by this Court.

It is needless to state that this Court has not recorded any opinion with

regard to the merits/entitlement or otherwise of the claim as made by the

petitioner herein. No order as to costs.

As a sequel, miscellaneous applications, if any, pending shall

stand closed.

__________________ NINALA JAYASURYA, J Date: 18.04.2022

IS

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THE HON'BLE SRI JUSTICE NINALA JAYASURYA

Civil Revision Petition No.1360 of 2021 Date: 18.04.2022

IS