Bombay High Court
Shree Bal Realtors Pvt. Ltd. Thr. ... vs Smt. Baydabai @ Laxmibai Bajiraon ... on 23 April, 2025
Author: N.J.Jamadar
Bench: N.J.Jamadar
2025:BHC-AS:18302
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.759 OF 2023
Shree Bal Realtors Pvt. Ltd. ... Applicant
versus
Baydabai @ Laxmibai Bajirao Ingawale and Ors. ... Respondents
SWAROOP
SHARAD Mr. Vireendra Tulzapurkar, Sr.Advocate with Mr. Siddhesh Bhole, Mr.Ashwin
PHADKE
Digitally signed by
Pimple i/by SSB Legal and Advisory, for Applicant.
SWAROOP SHARAD
PHADKE Mr. Sudhir V. Sadavarte, for Respondent No.1.
Date: 2025.04.23
21:40:54 +0530
CORAM: N.J.JAMADAR, J.
RESERVED ON : 30 JANUARY 2025
PRONOUNCED ON : 23 APRIL 2025
JUDGMENT :
1. This Revision Application is directed against an order dated 4 July 2023
passed by the learned Civil Judge, Sr. Division, Pune whereby an application
(Exh.65) for striking out the pleadings in Special Civil Suit No.749 of 2022
preferred by the Applicant - Defendant No.8, under Order VI Rule 16 of the
Code of Civil Procedure, 1908 (the Code), came to be rejected.
2. The background facts leading to this Revision Application are required
to be narrated in a little detail, as the dispute has a chequered history.
2.1 Dattu Chandhere, the father of the Plaintiff, was the owner of the land
bearing Survey No.98, situated at Village Baner, Pune. Defendant No.6 is the
widow of Dattu. Defendant Nos.1 to 5 are the sons of Dattu. Plaintiff is the
only daughter of Dattu.
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2.2 In the year 1987, Dattu allegedly effected partition of the land bearing
Survey No.98 among himself and Defendant Nos.1 to 5 and, for that purpose,
an application was preferred under Section 85 of the Maharashtra Land
Revenue Code. In the month of December 1987, mutation entries giving
effect to the partition were made. Pursuant to the orders passed by the Office
of the Director of Land Records, sub-divided Survey Numbers i.e. 98/1, 98/3,
98/4, 98/5, 98/6 and 98/7 were mutated in the names of the deceased Dattu
and Defendant Nos.1 to 5.
2.3 Dattu again effected partition of the land bearing Survey No.98/2A
which was renumbered as 98/1/1A, among himself and Plaintiff and
Defendant Nos.1 to 5.
2.4 On 1 March 1993, Defendant Nos.1 to 5 executed registered
Agreements to transfer lands bearing Survey Nos.98/3 to 98/7 in favour of
Prashant Garden Co-op. Hsg.Soc. Ltd. - Defendant No.7. On 28 January
2005, Defendant Nos.1 to 6 executed Sale Deeds in favour of Defendant No.7
Society. The latter, in turn, agreed to sell Survey Nos.98/3 to 98/7 to the
Applicant - Shree Bal Realtors Pvt. Ltd. and executed a power of attorney.
2.5 Defendant Nos.1, 3 and 5 instituted a suit, being Special Civil Suit
No.533 of 2005, against deceased Dattu, their mother Venubai - Defendant
No.6, sister - Plaintiff herein, and Defendant No.7 Society and others seeking
cancellation of the Partition Deed dated 31 March 1993 and the Sale Deeds
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dated 31 January 2005.
2.6 In the said suit, the Applicant was impleaded as Defendant No.18 and
Prashant CHS Ltd., as Defendant No.15.
2.7 In the said suit, a compromise was arrived at between the parties and,
thereupon, a compromise decree came to be passed. The Plaintiff and
Defendant Nos.1 to 5, inter alia, admitted the Agreements of Sale as well as
the Development Agreement dated 31 January 2005 and the Power of
Attorney executed by Defendant No.7 in favour of the Applicant. The Plaintiff
as well as Defendant Nos.1 to 6 also admitted Partition Deed dated 31 March
1993, Tahasildar's order dated 9 December 1987 giving effect to the partition
and Sale Deeds dated 28 January 2005.
2.8 Under the consent terms, the Plaintiff and Defendant Nos.1 to 6 had
also agreed to execute a Deed of Confirmation. Accordingly, on 2 December
2006, the Plaintiff and Defendant Nos.1 to 6 executed a Deed of Confirmation
in favour of the applicant and Defendant No.7 Society. The Plaintiff had, inter
alia, admitted compromise decree passed in SCS No.533 of 2005. Defendant
Nos.1 to 5 received and acknowledged additional consideration of
Rs.3,37,50,000/- thereunder.
2.9 Acting on the aforesaid consent terms, entries were made in the record
of rights, NA order was passed, Survey Nos.98/3 to 98/7 were amalgamated
and the lands were fully developed.
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2.10 The aforesaid being the position, the Plaintiff - Respondent No.1
herein, instituted a suit, being SCS No.749 of 2022, seeking diverse reliefs;
diametrical to the earlier consent decree, acknowledgments and admissions.
It was, inter alia, asserted that the suit properties described in paragraph
No.1A of the plaint comprising of Survey Nos.98/2A, 98/3, 98/4, 98/5, 98/6
and 98/7, which formed part of the consent decree in SCS No.533 of 2005,
were the joint family properties and the Plaintiff had 1/7th undivided interest
therein. Whereas, the properties described in paragraph No.1B of the plaint,
were the ancestral properties of deceased Dattu and Dnyanoba - Defendant
No.19, who was impleaded as a co-sherer.
2.11 The Plaintiff claimed, she had 1/7tgh undivided interest in the ½
undivided interest of deceased Dattu in the properties described in paragraph
No.1B. During the lifetime of deceased Dattu, there was never any partition
between Dattu and his children. Dattu passed away on 24 December 2006.
Therefore, the suit for partition and separate possession of the Plaintiff's 1/7th
share in the suit properties.
2.12 In the plaint, the Plaintiff referred to the instruments which were
executed in the intervening period and the proceedings which had ensued in
respect of the suit properties. It was asserted that those instruments were
brought about behind back of the Plaintiff and with a view to defeat the
legitimate claim of the Plaintiff in the suit properties.
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2.13 As regards the consent decree in SCS No.533 of 2005, the Plaintiff
asserted that, though she was impleaded as Defendant No.13 therein, she
was not apprised of the nature of the settlement arrived at in the said suit.
She is an illiterate and rustic lady. Consent terms in the said suit were
executed by practicing fraud on the Plaintiff and with a view to defeat her
right, title and interest in the suit properties, and, therefore, the said consent
decree was not binding on the Plaintiff and the share of the Plaintiff in the suit
properties.
2.14 The Plaintiff claimed to have learnt about the aforesaid developments
when Bajirao - Defendant No.5 instituted a suit against the applicant -
Defendant No.8 for injunction in respect of the suit properties described in
paragraph No.1A of the plaint and upon perusal the pleadings filed by the
parties therein.
2.15 In addition to the relief of partition and separate possession of her 1/7th
share in the suit properties, the Plaintiff prayed for a declaration that the
alleged Sale Deed dated 1 March 1998 in respect of Survey No.98/4,
Development Agreement and the Power of Attorney dated 31 January 2005
and the Sale Deeds dated 28 January 2005 in respect of Survey Nos.98/3,
98/5, 98/6 and 98/7 and the Development Agreement and the Power of
Attorney between the Society - Defendant No.7 and the Applicant -
Defendant No.8, and the other instruments executed in respect of the suit
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properties, were not binding on the share of the Plaintiff. Likewise, the alleged
consent terms and the documents executed on the strength of the consent
terms were also not binding on the Plaintiff, and, in the alternative, the suit
properties described in paragraphs 1A and 1B be re-partitioned.
2.16 The Applicant - Defendant No.8 filed an application for striking out of
the pleadings with regard to the instruments executed in respect of the suit
properties described at Sr. Nos.2 to 7 of the paragraph No.1A of the plaint as
in consent terms arrived at in SCS No.533 of 2005, and the compromise
decree passed therein on 31 January 2007, the Plaintiff as well as Defendant
Nos.1 to 5 have clearly admitted those instruments i.e. Agreements to Sale
dated 1 March 1993, Sale Deeds dated 31 January 2005 (28 January 2005)
and the Power of Attorney dated 8 November 2004, Development
Agreements and Power of Attorneys dated 31 January 2005 and the factum of
partition amongst deceased Dattu and Defendant Nos.1 to 5.
2.17 Moreover, Plaintiff as well as Defendant Nos.1 to 5 had executed
registered Deed of Confirmation on 2 December 2006 in respect of Survey
Nos.98/3 to 98/7 in favour of Defendant No.7 Society and the Applicant -
Defendant No.8. Thus, the Plaintiff was estopped from seeking partition and
separate possession of her purported share in the suit properties described at
Sr. Nos.2 to 7 in paragraph No.1A of the plaint, in view of the consent decree
and the admission of execution of the aforesaid instruments. Thus, the suit
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was an abuse of the process of the Court. Therefore, the pleadings and
prayers in respect of the suit lands described in Sr. Nos.2 to 7 in paragraph
No.1A of the plaint, were required to be struck off under Order VI Rule 16 of
the Code.
2.18 The Plaintiff resisted the application. Reiterating the averments in the
plaint and the case set up therein, the Plaintiff asserted that under the alleged
prior partition, the Plaintiff had not been allotted any of the properties
described in paragraph No.1A of the plaint. No part of the suit land is in
actual and physical possession of the Plaintiff as the owner thereof. The
Plaintiff learnt about the real state of affairs only after being served with the
summons in SCS No.1259 of 2020. The Plaintiff has not suppressed any fact,
and, in fact, made a clean breast of the transactions. Therefore, no part of the
plaint is liable to be struck off.
2.19 The learned Civil Judge was persuaded to reject the application
observing that whether the Plaintiff has a right to seek partition of the suit
properties described in paragraph No.1A of the plaint, or she is estopped from
seeking partition and challenging the prior partition, are matters for trial. The
plaint does disclose cause of action. Whether the Plaintiff is entitled for the
relief or not, is a matter of evidence and trial. Thus, the application for striking
off the pleadings qua the properties described at Sr. Nos.2 to 7 in paragraph
No.1A of the plaint, came to be rejected.
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2.20 Being aggrieved, Defendant No.8 has invoked the revisional
jurisdiction.
3. I have heard Mr. Tulzapurkar, learned Senior Advocate for the
Applicant, and Mr. Sadavarte, learned Counsel for the Respondent No.1 -
Plaintiff, at some length. Learned Counsel took the Court through the
pleadings in the instant suit, pleadings in the prior suits and the documents
and material on record.
4. Mr. Tulzapurkar, learned Senior Advocate for the Applicant, submitted
that the learned Civil Judge did not properly appreciate the nature of the
challenge put forth by Defendant No.8. Without examining the import of the
provisions contained in Order VI Rule 16 and the clear application thereof to
the facts of the case, learned Civil Judge rejected the application by ascribing
general reasons that the matter merited trial.
5. Taking the Court through the averments in the plaint and comparing
and contrasting the same with the Compromise Decree in SCS No.533 of
2005, Mr. Tulzapurkar would urge that the properties described in the said
Compromise decree and the properties described at Sr. Nos.2 to 7 of
paragraph No.1A of the plaint, are the same. All the parties who were entitled
to a share in the said properties were the parties to the said suit and they all
had voluntarily entered into settlement, and, thereupon, Compromise decree
came to be passed.
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6. Mr. Tulzapurkar laid special emphasis on clauses 12 and 13 of the said
consent terms which, inter alia, record that the Plaintiffs and and Defendant
Nos.1 to 14 therein, including the Plaintiff herein (Defendant No.13 therein)
had withdrawn all the allegations against Defendant Nos.15 to 19 therein,
inclusive of the applicant - Defendant No.8 and Prashant Garden CHS -
Defendant No.7. Under clause 13 of the said consent terms, the Plaintiff and
Defendant Nos.1 to 14 therein, clearly admitted and acknowledged partition
of Survey No.98 pursuant to the order passed by the Tahasildar on 9
December 1987 and gave up all the grievances in respect of the said
properties. They went on to admit that they have no right, title and interest left
in Survey Nos.98/3, 98/4, 98/5, 98/6 and 98/7.
7. Mr. Tulzapurkar further submitted that the consent terms were further
affirmed by executing a Deed of Confirmation in terms thereof (page 119).
The Plaintiff executed the said Deed of Confirmation as executing party No.9.
Under the said Deed of Confirmation, Defendant Nos.1 to 5 were paid further
sum of Rs.3,37,50,000/- by way of additional consideration.
8. In the face of the aforesaid record, Mr. Tulzapurkar would urge, the
institution of the instant suit qua the suit properties at Sr. Nos.2 to 7 in
paragraph No.1A of the plaint is clearly an abuse of the process of the Court.
A party is not entitled to re-litigate the very issue again and again once the
dispute has been settled either by an order of the Court or in accordance with
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the agreement arrived at between the parties.
9. Mr. Tulzapurkar strenuously submitted that the provisions contained in
Order VI Rule 16, especially clause (c), are intended to empower the Court to
direct striking out of the pleadings, which constitutes an abuse of the process
of the Court.
10. To buttress the aforesaid submission, Mr. Tulzapurkar placed a very
strong reliance on the judgment of the Supreme Court in the case of
K.K.Mody V/s. K.N.Modi and Ors.1, wherein it was enunciated that one of the
attributes of an abuse of the process of court is re-litigation. It is an abuse of
the process of the court and contrary to justice and public policy for a party to
re-litigate the same issue which has already been tried and decided earlier
against him. The re-agitation may or may not be barred as res judicata. But if
the same issue is sought to be re-agitated, it also amounts to an abuse of the
process of court.
11. Mr. Tulzapurkar also placed reliance on a judgment of the learned
Single Judge of the Madras High Court in the case of M. Sundaram @
Vettukati Sundaram V/s. R. Thangasamy Nadar 2, wherein the learned Single
Judge expounded as to what constitutes an abuse of the process of the
Court. A decision of the learned Single Judge of this Court in the case of SNP
Shipping Services pvt. Ltd. V/s. Kara Mara Shipping co. Ltd. and Ors. 3 was
1 (1998) 3 SCC 573
2 (1998) 3 MLJ 3
3 AIR 2000 Bombay 57
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also pressed into service by Mr. Tulzapurkar to bolster up the submission that
attempt at re-litigation has to be nipped in the bud for the benefit of public at
large and to prevent the time of the public and the Court being wasted.
12. Mr. Sadavarte, learned Counsel for the Respondent No.1, stoutly
countered the submissions on behalf of the applicant. Mr. Sadavarte would
urge that, in the plaint, the Plaintiff has made no effort to suppress facts. All
the relevant facts have been pleaded by the Plaintiff. The Plaintiff has
explicitly asserted the circumstances in which she learnt about the true state
of affairs. Institution of the suit by Defendant No.5 and the pleadings therein,
furnished cause of action for the Plaintiff to institute the instant suit. Thus, by
no stretch of imagination can it be said that the institution of the instant suit
constitutes an abuse of the process of Court.
13. Mr. Sadavarte would urge that the decisions in the cases of K.K.Modi
(supra) and SNP Shipping Services Pvt. Ltd. (supra), do not govern the facts
of the case at hand. In fact, the entitlement of the Plaintiff to partition and
separate possession of her share in the suit properties was never tried and
decided. The Plaintiff has specifically adverted to the circumstances in which
the consent decree and the instruments were obtained allegedly fraudulently
and with a view to cause prejudice to the rights of the Plaintiff. The order of
striking out the pleadings has a drastic consequence. The Court cannot
resort to such power without their being proper justification. The applicant -
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Defendant No.8, according to Mr. Sadavarte, has singularly failed to make out
such a strong justification. Therefore, the learned Civil Judge cannot be said
to have committed any error in rejecting the application for striking out the
pleadings. To lend support to the aforesaid submissions, Mr. Sadavarte
placed reliance on the decision of the Supreme Court in the case of Abdul
Razak (dead) through LRs and Ors. V/s. Mangesh Rajaram Wagle and Ors.4.
14. On the aspect as to what constitutes material fact and suppression
thereof, so as to constitute abuse of the process of the Court, Mr. Sadavarte
placed reliance on the decision of the Supreme Court in the case of Udhav
Singh V/s. Madhav Rao Scindia5 and a decision of the learned Single Judge
of this Court in the case of Nana Falgunrao Patole V/s. Nitin Nairam Gadkari6.
15. Mr. Tulzapurkar joined the issue by canvassing a submission that the
Plaintiff has also resorted to clever drafting. Though, a reference is made to
the consent decree passed in SCS No.533 of 2005 and the said decree is
challenged on a tangent, yet no specific declaration with regard to the consent
decree has been sought as the suit to challenge the consent decree is
explicitly barred by the provisions contained in Order XXIII Rule 3A of the
Code. Mr. Tulzapurkar would urge, the Court has to look at the substance of
the matter. If by resorting to clever drafting, the Plaintiff has made an
undisguised attempt of relitigating the very same issue, which has been set at
4 (2010) 2 SCC 432
5 (1976) AIR (SC) 744
6 (2022) 3 ALLMR 355
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rest by the compromise decree, the pleadings relevant to the said issue, must
be struck off.
16. As indicated above, I have narrated the facts in a little detail on purpose
so as to obviate repetitive reference to the facts.
17. The substance of the claim of the applicant - Defendant No.8 is that the
compromise decree in SCS No.533 of 2005, especially clauses thereof, under
which the Plaintiff and Defendant Nos.1 to 5 have explicitly admitted the
factum of partition, execution of the instruments, including the execution of
Sale Deeds and the Development Agreement as well as Power of Attorney in
favour of the applicant - Defendant No.8 and the Deed of Confirmation,
cumulatively indicate that the Plaintiff is estopped from reagitating those
issues. Therefore, an endeavour to re-litigate the very same issue which has
been settled by the consent of the parties can only be said to be an abuse of
the process of the Court.
18. The provisions contained in Order VI Rule 16 read as under :
"16. Striking out pleadings - The Court may at any stage of the
proceedings order to be struck out or amended any matter in any
pleading -
(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."
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19. Evidently, the power to strike out pleadings is discretionary. Necessary
corollary is that the discretion has to be exercised in a judicious manner being
informed of all the relevant factors which influence the exercise of such
power. By its very nature, the power to strike out pleadings is drastic and
extra-ordinary, as ordinarily the Court cannot dictate a party as to how it
should plead its case and what it should not plead, apart from adhering to the
provisions contained in the Code, which regulate the pleadings.
20. Rule 16 empowers the Court to direct striking out of the pleadings,
which appear to be unnecessary, scandalous, frivolous or vexatious [clause
(a)] or which tend to prejudice, embarrass or delay the fair trial of the suit
[clause (b)] or which otherwise amounts to an abuse of the process of the
Court [clause (c)].
21. In the case at hand, the applicant - Defendant No.8 does not press into
service clauses (a) and (b). Predominantly, the case of the striking out the
pleadings qua the suit properties described in paragraph No.1A of the plaint,
is premised on clause (c). Pleadings qua the properties described at Sr.
Nos.2 to 7 of paragraph No.1A of the plaint, according to the Applicant -
Defendant No.8, constitute an abuse of the process of Court.
22. In the case of K.K.Modi (Supra), the Supreme Court had an occasion to
consider the import of the term "abuse of the process of the Court" in the
context of the provisions contained in Order 6 Rule 16. The Supreme Court
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enunciated the law as under :
"42. Under Order 6 Rule 16, the Court may, at any state of he
proceeding, order to b e struck out, inter alia, any matter in any
pleading which is otherwise an abuse of the process of the court.
Mulla in his treatise on the Code of Civil Procedure, (15th Edition,
Volume II, page 1179 note 7) has stated that power under clause
(c) of Order 6 Rule 16 of the Code is confined to cases where the
abuse of he process of the Court is manifest from the pleadings;
and that this power is unlike the power under Section 151
whereunder Courts have inherent power to strike out pleadings or
to stay or dismiss proceedings which are an abuse of their
process. In the present case the High Court has held the suit to be
an abuse of he process of Court on the basis of what is stated in
the plaint.
43. The Supreme Court Practice 1995 published by Sweet &
Maxwell in paragraph 18/19/33 (page 344) explains the phrase
"abuse of the process of the court" thus:
"This term connotes that the process of the court must be
used bona fide and properly and must not be abused. The court
will prevent improper use of its machinery and will in a proper
case, summarily prevent its machinery from being used as a
means of vexation and oppression in the process of litigation........
The categories of conduct rendering a claim frivolous, vexatious or
an abuse of process are not closed but depend on all the relevant
circumstances. And for this purpose considerations of public policy
and the interests of justice may be very material."
44. One of the examples cited as an abuse of the process of
court is re-litigation. It is an abuse of the process of the court and
contrary to justice and public policy for a party to re-litigate the
same issue which h as already been tried and decided earlier
against him. The re-agitation may or may not be barred as res
judicata. But if the same issue is sought to be re-agitated, it also
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amounts to an abuse of the process of court. A proceeding being
filed for a collateral purpose, or a spurious claim being made in
litigation may also in a given set of facts amount to an abuse of
the process of the court. Frivolous or vexatious proceedings may
also amount to an abuse of the process of court especially where
the proceedings are absolutely groundless. The court then has the
power to stop such proceedings summarily and prevent the time of
the public and t he court from being wasted. Undoubtedly, it is a
matter of courts' discretion whether such proceedings should be
stopped or not; and this discretion has to be exercised with
circumspection. It is a jurisdiction which should be sparingly
exercised, and exercised only in special cases. The court should
also be satisfied that there is no chance of the suit succeeding.
45. In the case of Greenhalgh v. Mallard7 the court had to
consider different proceedings on the same cause of action for
conspiracy, but supported by different averments. The Court, held
that if the plaintiff has chosen to put his case in one way, he
cannot thereafter bring the same transaction before the court, put
his case in another way and say that he is relying on a new cause
of action. In such circumstances he can be met with the plea of
res judicata or the statement or plaint may be struck out on the
ground that the action is frivolous and vexation and an abuse of
the process of court.
46. In Mcllkenny v. Chief Constable of West Midlands Police
Force , the Court of Appeal in England struck out the pleading on
the ground that the action was an abuse of the process of the
court since it raised an issue identical to that which had been
finally determined at the plaintiffs' earlier criminal trial. The court
said even when it is not possible to strike out the plaint on the
ground of issue estoppel, the action can be struck out as an abuse
of the process of the court because it is an abuse for a party to re-
7 (1947) 2 ALL ER 255
8 (1980) 2 ALL ER 227
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litigate a question or issue which has already been decided
against him even though the other party cannot satisfy the strict
rule of res judicata or the requirement of issue estoppel."
23. The Supreme Court enunciated that relitigation is an instance of abuse
of the process of the Court. De hors the decision in a prior proceeding
operating as res-judicata, relitigation may amount to an abuse of the process
of the Court. Institution of frivolous or vexatious proceedings which are
absolutely groundless also amounts to an abuse of the process of the Court.
In such a situation, the court ought to stop such proceedings summarily and
prevent the time of the public and the court from being wasted. At the same
time, the Supreme Court cautioned that the power to strike out pleadings has
drastic consequences and should be exercised sparingly and only in special
cases.
24. In the SNP Shipping Services Pvt. Ltd. (supra), following the aforesaid
pronouncement, the learned Single Judge dismissed the suit as an abuse of
the process of the Court observing, inter alia, as under :
"22. The present case as already noted above, is a classic
example of re-agitating the same issue by a party which has
been held against him by the highest Court of the land. Despite
the fact that it has been held that for setting up of a limitation
fund in the matter this court has no jurisdiction, the Plaintiffs are
seeking to invoke jurisdiction of a Court having no jurisdiction on
misconstruction and misreading of the judgment of the highest
Court. Such attempt of the litigant has to be stopped
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immediately in the interest of justice and for the benefit of public
at large to prevent the time of the public and the Court being
wasted."
25. In the case of M. Sundaram @ Vettukati Sundaram (supra), the
learned Single Judge of the Madras High Court, exposited as to what
constitutes the abuse of the process of the Court, as under :
"14. In this connection, it may also be noted that Order 7, Rule
16 of the Code of Civil Procedure was amended under the Act 104
of 1976 where the power is given to court at any stage of the suit to
strike of the plaint, "which is otherwise an abuse of process of law".
Apart from the same, under inherent powers, under Section 151 of
the Code of Civil Procedure, the court is given the poser to strike of
the plaint if it comes to the conclusion that there is an abuse of
process of law.
15. What is an abuse of process? In a decision in Hunter v.
Chief Constable of West Midlands and Anr.9, it was held thus :
"The initiation of proceedings in a court of justice for
the purpose of mounting a collateral attack on a final decision
adverse to the intending plaintiff reached by a court of competent
jurisdiction in previous proceedings in which the plaintiff had a full
opportunity of contesting the matter was, as a matter of public
policy, an abuse of the process of the court."
It is further held by the House of Lordships in that case thus :
"My Lords, collateral attack on a final decision of a court of
competent jurisdiction may take a variety of forms. It is not
surprising that no reported case is to be found in which the facts
present a precise parallel with those of the instant case. But the
principle applicable is, in my view, simply and clearly stated in
those passages from the judgment of A.L. Smith, L.J. in
9 1981 ALL ER 727
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Stephenson v. Garnett10 and the speech of Lord Halsbury LC in
Reichel v. Magrath11 which are cited by Goff L.J., in his judgment
in the instant case. I need only repeat an extract from the passage
which he cited from the judgment of A.L. Smith, L.J., in Stephenson
v. Garnett (1898) 1 Q.B. 677 at 680-681 :
....the court ought to be slow to strike out a
statement of claim or defence, and to dismiss an action as frivolous
and vexatious, yet it ought to do so when, as here, it has been
shown that the identical question sought to be raised has been
already decided by a competent court.
The passage from Lord Halsbury LC's speech in Reichel v.
Magrath 14 A.C. 665 at 688 deserves repetition here in full :
...I think it would be a scandal to the administration of
justice if, the same question having been disposed of by one case,
the litigant were to be permitted by changing the form of the
proceedings to set up the same case again."
26. In the case of Abdul Razak (supra), the Supreme Court
expounded the contours of the power under Rule 16 of Order VI in the
following terms :
"16. Order 6 Rule 16 which empowers the Court to strike
out the pleadings, reads thus :
"16. Striking out pleadings. - The Court may at any stage of
the proceedings order to be struck out or amended any matter
in any pleading -
(a) which may be unnecessary, scandalous, frivolous or
vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair
10 (1898) Q.B. 677
11 (1889) 14 APP. Cas. 665
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trial of the suit, or
(c) which is otherwise an abuse of the process of the court."
A reading of the plain language of the above reproduced
provisions makes it clear that the court's power to strike out any
pleading at any stage of the proceedings can be exercised in
either of the three eventualities i.e., where the pleadings are
considered by the court unnecessary, scandalous, frivolous or
vexatious; or where the court is satisfied that the pleadings tend
to prejudice, embarrass or delay the fair trial of the suit or which
is otherwise considered as an abuse of the court.
17. Normally, a court cannot direct or dictate the parties as
to what should be their pleading and how they should prepare
their pleadings. If the parties do not violate any statutory
provision, they have the freedom to make appropriate
averments and raise arguable issues. The court can strike off
the pleadings only if it is satisfied that the same are
unnecessary, scandalous, frivolous or vexatious or tend to
prejudice, embarrass or delay the fair trial of the suit or the
court is satisfied that suit is an abuse of the process of the
court. Since the striking off pleadings has serious adverse
impact on the rights of the concerned party, the power to do so
has to be exercised with great care and circumspection.
18. In Knowles v. Roberts (1888) 38 Ch D, 263, Boven, L.J.
Observed :
"It seems to me that the rule that the Court is not to
dictate to parties how they should frame their case, is one that
ought always to be preserved sacred. But that rule is, of
course, subject to this modification and limitation, that the
parties must not offend against the rules of pleading which
have been laid down by the law; and if a party introduces a
pleading which is unnecessary, and it tends to prejudice,
embarrass and delay the trial of the action, it then becomes a
pleading which is beyond his right. It is a recognized principle
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that a defendant may claim ex debito justitiae to have the
plaintiff's claim presented in an intelligible form, so that he may
not be embarrassed in meeting it; and the Court ought to be
strict even to severity in taking care to prevent pleadings from
degenerating into the old oppressive pleadings of the Court of
Chancery."
19. The above reproduced observations have been quoted
with approval in Sathi Vijay Kumar V/s. Tota Singh and Ors. 12 In
that case, the order passed by the High Court deleting
paragraphs 11, 12 and 13(a) from the election petition filed by
the appellant was questioned before this Court on the ground
that the case does not fall within the ambit of Order VI Rule 16.
This Court first held that the provisions of Order VI Rule 16
CPC are applicable to election petitions. The Court then
referred to the earlier judgments in Roop Lal Sathi V/s.
Nachhattar Singh Gill13, K.K.Modi (supra), Union Bank of India
v. Naresh Kumar14 and held that the power to strike out
pleading is extraordinary in nature and must be exercised by
the Court sparingly and with extreme care, caution and
circumspection." (emphasis supplied)
27. On the aforesaid touchstone, reverting to the facts of the case, it has to
be seen whether the action by way of instant suit for partition and separate
possession of the Plaintiff's share in the suit properties, especially the
properties at Sr. Nos.2 to 7 in paragraph No.1A of the plaint, constitutes an
abuse of the process of the Court.
28. The linchpin of the submission on behalf of the Applicant was the
12 (2006) 13 SCC 353
13 (1982) 3 SCC 487
14 (1996) 6 SCC 660
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factum of the consent decree passed in SCS No.533 of 2005, to which the
Plaintiff was indubitably a party (Defendant No.13) and the subsequent Deed
of Confirmation executed by the successors in interest of deceased Dattu,
including the Plaintiff, who seems to have executed the said Deed of
Confirmation as party No.9. Having entered into settlement, acknowledged
the factum of partition, execution of the instruments, including the Sale Deeds
by Defendant Nos.1 to 5, Development Agreement and the Power of
Attorney, the Plaintiff cannot be permitted to take a summersault and question
everything, after more than 17 years, was the thrust of the submission of Mr.
Tulzapurkar.
29. On the first blush and in the face of the material on record, especially
the consent decree and the Deed of Confirmation, the submission of Mr.
Tulzapurkar appears attractive. However, the submission is required to be
tested on the anvil of the true nature of the claim of the Plaintiff qua the suit
properties.
30. The Plaintiff claimed that the suit properties were the joint family and
ancestral properties of Dattu. It is the stated case of the applicant -
Defendant No.8 that there was a partition by Dattu among himself and his
sons only. When the partition was effected, according to the applicant, as per
the extant provisions of the Hindu Succession Act, 1956, the Plaintiff was not
entitled for any share in the suit properties described at Sr. Nos.2 to 7 of
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paragraph 1A of the plaint. Nor the Plaintiff had laid any claim over the suit
properties and had indeed accepted the partition and never challenged the
same.
31. The aforesaid contention of the Applicant - Defendant No.8, if taken to
its logical culmination, would imply that the parties proceeded on the premise
that the Plaintiff being a daughter was not entitled to a share in the joint family
property. Therefore, no share was allotted to the Plaintiff in the purported
partition between deceased Dattu and his sons. The submission on behalf of
the Applicant was, thus, clearly guarded and qualified with a rider that under
the extant provisions of the Hindu Succession Act, 1956, the Plaintiff was not
entitled to a share in the suit properties.
32. I am afraid, the aforesaid submission merits acceptance in the wake of
2005 Amendment to the Hindu Succession Act and the development in law,
especially with the pronouncement of the Supreme Court in the case of
Vineeta Sharma V/s. Rakesh Sharma and Ors. 15 The said Amendment
brought about a paradigm shift in the right of a daughter in the coparcenary
property. A daughter became entitled to succeed to the property as a
coparcener like son. The daughter of a coparcener by birth became a
coparcener in her own right in the same manner as the son, and has the
same rights in the coparcenary property as she would have had if she had
15 (2020) 9 SCC 1
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been a son inclusive of the right to claim by survivorship and is subject to the
same liabilities and disabilities in respect thereto as the son.
33. In the case of Vineeta Sharma (supra), the Supreme Court culled out
the principles in the following terms :
"107. Once the constitution of coparcenary changes by
birth or death, shares have to be worked out at the time of actual
partition. The shares will have to be determined in changed
scenario. The severance of status cannot come in the way to give
effect to statutory provision and change by subsequent event. The
statutory fiction of partition is far short of actual partition, it does not
bring about the disruption of the joint family or that of coparcenary is
a settled proposition of law. For the reasons mentioned above, we
are also of the opinion that mere severance of status by way of filing
a suit does not bring about the partition and till the date of the final
decree, change in law, and changes due to the subsequent event
can be taken into consideration.
108. As to the effect of legal fiction, reliance was placed on CIT
v. S Teja Singh, AIR 1959 SC 352, in which it was laid down that in
construing the scope of legal fiction, it would be proper and even
necessary to assume all those facts on which alone the fiction can
operate. There is no dispute with the aforesaid proposition, but the
purpose of fiction is limited so as to work out the extent of the share
of the deceased at the time of his death, and not to affect the actual
partition in case it has not been done by metes and bounds.
109. When the proviso to unamended Section 6 of the 1956
Act came into operation and the share of the deceased coparcener
was required to be ascertained, a deemed partition was assumed in
the lifetime of the deceased immediately before his death. Such a
concept of notional partition was employed so as to give effect to
Explanation to Section 6. The fiction of notional partition was meant
for an aforesaid specific purpose. It was not to bring about the real
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partition. Neither did it affect the severance of interest nor
demarcated the interest of surviving coparceners or of the other
family members, if any, entitled to a share in the event of partition
but could not have claimed it. The entire partition of the coparcenary
is not provided by deemed fiction; otherwise, coparcenary could not
have continued which is by birth, and the death of one coparcener
would have brought an end to it. Legal fiction is only for a purpose it
serves, and it cannot be extended beyond was held in State of
TravancoreCochin & Ors. v. Shanmugha Vilas Cashew Nut Factory
& Ors., (1954) SCR 53; Bengal Immunity Co. Ltd. v. State of Bihar &
Ors., AIR 1955 SC 661; and Controller of Estate Duty v. Smt. S.
Harish Chandra, (1987) 167 ITR 230.
..........
124. The intendment of amended Section 6 is to ensure that
daughters are not deprived of their rights of obtaining share on
becoming coparcener and claiming a partition of the coparcenary
property by setting up the frivolous defence of oral partition and/or
recorded in the unregistered memorandum of partition. The Court
has to keep in mind the possibility that a plea of oral partition may
be set up, fraudulently or in collusion, or based on unregistered
memorandum of partition which may also be created at any point of
time. Such a partition is not recognized under Section 6(5).
.......
134, The protection of rights of daughters as coparcener is
envisaged in the substituted Section 6 of the Act of 1956 recognises
the partition brought about by a decree of a court or effected by a
registered instrument. The partition so effected before 20.12.2004 is
saved.
135. A special definition of partition has been carved out in the
explanation. The intendment of the provisions is not to jeopardise the
interest of the daughter and to take care of sham or frivolous
transaction set up in defence unjustly to deprive the daughter of her
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right as coparcener and prevent nullifying the benefit flowing from the
provisions as substituted. The statutory provisions made in section
6(5) change the entire complexion as to partition. However, under the
law that prevailed earlier, an oral partition was recognised. In view of
change of provisions of section 6, the intendment of legislature is
clear and such a plea of oral partition is not to be readily accepted.
The provisions of section 6(5) are required to be interpreted to cast a
heavy burden of proof upon proponent of oral partition before it is
accepted such as separate occupation of portions, appropriation of
the income, and consequent entry in the revenue records and
invariably to be supported by other contemporaneous public
documents admissible in evidence, may be accepted most reluctantly
while exercising all safeguards. The intendment of Section 6 of the
Act is only to accept the genuine partitions that might have taken
place under the prevailing law, and are not set up as a false defence
and only oral ipse dixit is to be rejected outrightly. The object of
preventing, setting up of false or frivolous defence to set at naught the
benefit emanating from amended provisions, has to be given full
effect. Otherwise, it would become very easy to deprive the daughter
of her rights as a coparcener. When such a defence is taken, the
Court has to be very extremely careful in accepting the same, and
only if very cogent, impeccable, and contemporaneous documentary
evidence in shape of public documents in support are available, such
a plea may be entertained, not otherwise. We reiterate that the plea of
an oral partition or memorandum of partition, unregistered one can be
manufactured at any point in time, without any contemporaneous
public document needs rejection at all costs. We say so for
exceptionally good cases where partition is proved conclusively and
we caution the courts that the finding is not to be based on the
preponderance of probabilities in view of provisions of gender justice
and the rigor of very heavy burden of proof which meet intendment of
Explanation to Section 6(5). It has to be remembered that courts
cannot defeat the object of the beneficial provisions made by the
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Amendment Act. The exception is carved out by us as earlier
execution of a registered document for partition was not necessary,
and the Court was rarely approached for the sake of family prestige. It
was approached as a last resort when parties were not able to settle
their family dispute amicably. We take note of the fact that even
before 1956, partition in other modes than envisaged under Section
6(5) had taken place.
136. The expression used in Explanation to Section 6(5)
'partition effected by a decree of a court' would mean giving of final
effect to actual partition by passing the final decree, only then it can
be said that a decree of a court effects partition. A preliminary decree
declares share but does not effect the actual partition, that is effected
by passing of a final decree; thus, statutory provisions are to be given
full effect, whether partition is actually carried out as per the
intendment of the Act is to be found out by Court. Even if partition is
supported by a registered document it is necessary to prove it had
been given effect to and acted upon and is not otherwise sham or
invalid or carried out by a final decree of a court. In case partition, in
fact, had been worked out finally in toto as if it would have been
carried out in the same manner as if affected by a decree of a court, it
can be recognized, not otherwise. A partition made by execution of
deed duly registered under the Registration Act, 1908, also refers to
completed event of partition not merely intendment to separate, is to
be borne in mind while dealing with the special provisions of Section
6(5) conferring rights on a daughter. There is a clear legislative
departure with respect to proof of partition which prevailed earlier;
thus, the Court may recognise the other mode of partition in
exceptional cases based upon continuous evidence for a long time in
the shape of public document not mere stray entries then only it would
not be in consonance with the spirit of the provisions of Section 6(5)
and its Explanation.
137. Resultantly, we answer the reference as under:
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137.1 The provisions contained in substituted Section 6 of the
Hindu Succession Act, 1956 confer status of coparcener on the
daughter born before or after amendment in the same manner as son
with same rights and liabilities.
137.2 The rights can be claimed by the daughter born earlier
with effect from 9.9.2005 with savings as provided in Section 6(1) as
to the disposition or alienation, partition or testamentary disposition
which had taken place before 20th day of December, 2004.
137.3 Since the right in coparcenary is by birth, it is not
necessary that father coparcener should be living as on 9.9.2005.
137.4 The statutory fiction of partition created by proviso to
Section 6 of the Hindu Succession Act, 1956 as originally enacted did
not bring about the actual partition or disruption of coparcenary. The
fiction was only for the purpose of ascertaining share of deceased
coparcener when he was survived by a female heir, of Class I as
specified in the Schedule to the Act of 1956 or male relative of such
female. The provisions of the substituted Section 6 are required to be
given full effect. Notwithstanding that a preliminary decree has been
passed the daughters are to be given share in coparcenary equal to
that of a son in pending proceedings for final decree or in an appeal.
137.5 In view of the rigor of provisions of Explanation to Section
6(5) of the Act of 1956, a plea of oral partition cannot be accepted as
the statutory recognised mode of partition effected by a deed of
partition duly registered under the provisions of the Registration Act,
1908 or effected by a decree of a court. However, in exceptional
cases where plea of oral partition is supported by public documents
and partition is finally evinced in the same manner as if it had been
affected by a decree of a court, it may be accepted. A plea of partition
based on oral evidence alone cannot be accepted and to be rejected
outrightly."
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34. The question that thus, wrenches to the fore is, whether the case would
fall within the ambit of the proviso to Section 6(1) of the Hindu Succession
Act, 1956. In the circumstances of the case, where the parties seem to have
proceeded on the premise that the Plaintiff was not entitled to a share in the
suit properties, and, in fact, no share was allotted to the Plaintiff, the aforesaid
issue would warrant adjudication at the trial. By way of illustration, it may be
noted that when the consent terms were executed in SCS No.533 of 2005,
Dattu, the father of the Plaintiff and Defendant Nos.1 to 5, had already
expired. Even if it is assumed that the suit properties described at Sr. Nos.2
to 7 in paragraph No.1A of the plaint, were not embraced with the character of
the coparcenary properties and were the self-acquired properties of Dattu, yet
upon his demise, the Plaintiff has a right to succeed to the estate left behind
by deceased Dattu, being Class I heir.
35. Secondly, even under the Deed of Confirmation, only Defendant Nos.1
to 5, brothers of the Plaintiff, were paid additional consideration of
Rs.3,37,50,000/-. Undoubtedly, the questions as to whether, the Plaintiff is
entitled to assail the instruments in respect of which she has sought
declarations, can the Plaintiff assail the legality and validity of the consent
decree, or for that matter, it's binding efficacy on her, is the challenge barred
by law of limitation, would arise determination. Would the Plaintiff succeed or
not is a matter for trial. However, in the circumstances of the case, especially
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having regard to the question of legal right of the Plaintiff, the Plaintiff cannot
be non-suited at the threshold with regard to the properties described at Sr.
Nos.2 to 7 of paragraph No.1A of the plaint.
36. Thus, I am impelled to hold that a case for striking out the pleadings on
the ground of abuse of the process of the Court, is not made out. Resultantly,
the application deserves to be rejected.
37. Hence, the following order :
ORDER
(i) The Civil Revision Application stands rejected.
(ii) No costs.
( N.J.JAMADAR, J. )
