Dr. Kunal Saha vs The State Of West Bengal & Anr
2022 Latest Caselaw 1243 Cal/2

                   IN THE HIGH COURT AT CALCUTTA
                        Ordinary Original Civil Jurisdiction
                                  Original Side


Present:

The Hon'ble Justice Shekhar B. Saraf

            I.A. G.A. NO. 5 of 2019 (Old No. G.A. 2788 of 2019)
                                        in
                               C.S. NO. 293 of 2017
                              Dr. Kunal Saha
                                   Versus
                      The State of West Bengal & Anr.


For the Plaintiff/Respondent                 : Mr. Srikanta Dutta, Advocate

For the Defendant/Petitioner : Mr. Samrat Sen, Ld. AAAG Mr. Anirban Ray, Ld. GP Mr. Paritosh Sinha, Ld. AOR West Bengal Mr. Arindam Mandal, Advocate Ms. Nandini Mukhopadhyay, Advocate

Heard on : January 03, 2022, 2021, January 19, 2022, February 07, 2022, February 17, 2022 and March 10, 2022

Judgment on : April 04, 2022

Shekhar B. Saraf, J.:

1. The instant suit was instituted by the plaintiff for seeking a decree to

the tune of Rs. 100 Crore against the defendant, that is, the State of

West Bengal (hereinafter referred to as "the State"), on account of

vicarious liability for an alleged act of defamation committed by a

Hon'ble High Court Judge. The present application is on behalf of the

State for rejection of the plaint under Order 7 Rule 11 of the Code of

Civil Procedure, 1908. A chronological history of the events that are

relevant for settlement of this instant application is given below:

a. On May 25, 1998, the wife of the Plaintiff, Mrs. Anuradha Saha

passed away in Breach Candy Hospital, Mumbai. On November 19,

1998, Mr. Malay Kumar Ganguly, a relative of the plaintiff, initiated

criminal proceedings being Case No. C-3883 of 1998 in the Court of

the Learned Chief Judicial Magistrate, Alipore under Section 304 A

of the Indian Penal Code, against Dr. Sukumar Mukherjee, Dr.

Baidyanath Halder and Dr. Abani Roy, who had treated Mrs. Saha

in Kolkata.

b. In 1999, the plaintiff filed OP No. 240 of 1999 before the National

Consumer Redressal Commission, New Delhi against 19 persons

who had rendered medical treatment to Mrs. Saha, claiming

compensation to the tune of Rs. 77,76,73,500/- with interest; the

same was dismissed in the year 2006. The plaintiff also filed a

complaint against 3 Doctors namely Dr. Sukumar Mukherjee, Dr.

Baidyanath Halder, and Dr. Abani Roy before the West Bengal

Medical Council which was later dismissed. Another complaint was

filed by the complaint against Breach Candy Hospital, Mumbai and

one doctor named Dr. Udwadia before the National Consumer

Disputes Redressal Commission. This complaint was subsequently

withdrawn by the plaintiff.

c. On May 29, 2002, the Learned Chief Judicial Magistrate at Alipore

passed a judgment in Case No. C-3883 of 1998 convicting Dr.

Sukumar Mukherjee and Dr. Baidyanath Halder under Section-

304A of the Indian Penal Code and acquitted Dr. Abani Roy. The

convicted doctors preferred a criminal appeal being Criminal Appeal

no. 55 of 2002 and Criminal Appeal No. 54 of 2002 before the

Learned District and Sessions Judge at Alipore against the said

judgment. Mr. Ganguly filed a criminal revision application being

CRR No. 1856 of 2002 for enhancement of punishment of the

convicted doctors, and a criminal revision application being CRA

No. 295 of 2002 before this Hon'ble Court, questioning the legality

of the judgement with respect to acquittal of Dr. Abani Roy.

d. The Hon'ble High Court at Calcutta transferred Criminal Appeal No.

55 of 2002 and Criminal Appeal No. 54 of 2002 to itself and heard

the said criminal appeals and said criminal revision petitions

together, renumbered as CRA No. 295 of 2002 and CRR No. 1856 of

2002. On March 19, 2004, the then Hon'ble Justice Gora Chand

Dey passed the judgement in the said matters wherein the

convicted doctors were acquitted, the acquittal of Dr. Roy was

upheld and some observations against the plaintiff were made. The

said judgment was widely shown in the media.

e. Mr. Ganguly challenged the said judgment in the Hon'ble Supreme

Court of India in Criminal Appeal Nos. 1191-1194 of 2005. The

Hon'ble Supreme Court dismissed the criminal appeals. The

judgement passed by the Hon'ble Apex Court on August 7, 2009 in

Malay Kumar Gaguly -v- Dr. Sukumar Mukherjee and Others

with Kunal Saha (Dr.) -v- Dr. Sukumar Mukherjee and Others

reported in (2009) 9 SCC 221.

f. In August, 2011, the plaintiff herein filed a complaint against the

Hon'ble Justice Gora Chand Dey (retired), being Case No. C/9928

of 2011 under Section 500 of the Indian Penal Code before the

Learned Chief Metropolitan Magistrate which was dismissed on

August 16, 2011. The plaintiff had also filed CRR No. 2755 of 2011

(Kunal Saha vs Mr. Gora Chand Dey Justice (Retired) and Anr.) in

the Hon'ble High Court at Calcutta which was dismissed without

costs by a judgment dated September 29, 2012 passed by the

Hon'ble Justice Aniruddha Bose.

g. On June 7, 2013, the plaintiff addressed a letter to the Member in

Charge and Secretary in Charge of the Law Department,

Government of West Bengal, inter alia urging the addressees to

initiate proceedings against the Hon'ble Justice Gora Chand Dey,

since the judgment dated September 21, 2012 held that a private

person is not authorized under Section 3(2) of the Judges

Protection Act to initiate action against a judge by instituting civil

or criminal proceedings.

h. Four years later, on September 20, 2017, the Advocate on Record

for the Plaintiff issued notice under Section 80 of the Code of Civil

Procedure to the Secretary of Home Affairs for compensation of Rs.

100 Crores due to alleged inaction of the State. On December 22,

2017, the plaintiff has filed the instant Suit. The present

application has been filed by the State on December 10, 2019 for

rejection of the plaint under Order 7 Rule 11 of the Code of Civil

Procedure, 1908.

2. Counsel appearing on behalf of the defendant/applicant made the

following submissions before the court:

a. The present suit is barred by limitation because the plaint admits

to a delay of 1964 days in filing of the present suit for which cause

of action arose on August 7, 2009 when the Apex Court passed the

judgment in Criminal Appeal No. 1191-1194 of 2005. The plaintiff

claims that the delay is due to him being an overseas citizen of

India as he had only stayed in India for about 365 days between

August 7, 2009 and the filing of the instant suit. There is no

provision in the Limitation Act, 1963, under which plaintiff's

absence from the territories of India forms a justifiable ground for

condoning the delay in filing the suit. Furthermore, Section 5 of the

Limitation Act does not apply in filing of a suit. Moreover, there is

no prayer for exemption of the admitted delay period. Reliance was

placed on an order dated July 17, 2016 passed in Merlin Projects

Limited -v- Smt. Giniya Devi Agarwala & Anr., (GA No. 3675 of

2015 in CS No 369 of 2014) by Hon'ble Justice Sanjib Banerjee to

support the aforesaid argument.

b. The plaintiff had filed Complaint Case No. C/9938 of 2011 before

the Chief Metropolitan Magistrate, Kolkata, under Section 500 of

IPC (punishment for defamation), claiming that his reputation in

society was lowered after the Hon'ble Justice Gora Chand Dey's

judgment was pronounced. The same was dismissed on August 10,

2012 as no ingredient of Section 500 of the Indian Penal code was

attracted in the said case. It was also observed in the order of

dismissal that the Judge of the High Court had privilege to make

certain remarks at the time of passing the judgment while

discharging his public duty as a Judge and the remarks passed in

the judgment dated March 19, 2004 were merely observations while

passing a judgment without any mala-fide intention. The Magistrate

also recorded that the defamation case was barred by the law of

limitation under Section 468(2)(c) of the Criminal Procedure Code,

1974 which provides that the period of limitation shall be three

years if the offense is punishable with imprisonment for a term

exceeding one year but not exceeding three years. Review petition of

order passed in Case No. C/9938 of 2011 was also rejected on

August 16, 2011. In addition, the plaintiff had filed the criminal

defamation suit against the Hon'ble Justice Gora Chand Dey in

2011, and his right to file a civil suit for compensation against

defamation was running conjointly thereto. Therefore, his absence

from the territories of India does not constitute a valid or justifiable

ground for the delay. This suit is ex facie barred by the law of

limitation.

c. The present suit lacks cause of action. Reliance has been placed on

Rajendra Bajoria and Ors -v- Hemant Kumar Jalan and Ors

reported in 2021 SCC Online SC 764; T. Arivandandam -v- TV

Satyapal and Anr reported in (1977) 4 SCC 467 and Popat and

Kotecha Property -v- State Bank of India Staff Association

reported in (2005) 7 SCC 510 to support the above argument.

d. The instant suit is barred by law. The plaintiff having failed in

prosecution against the Hon'ble Justice Gora Chand Dey under

Section 500 IPC and the review thereof, now wishes to take

recourse to suit claiming compensation against the State for

inaction against the Hon'ble Justice Gora Chand Dey. Section 77 of

IPC read with Section 3 (1) of the Judges Protection Act 1985,

grants immunity to judges acting in their judicial capacity. This

suit is thus expressly barred by such law in force.

3. Counsel appearing on behalf of the plaintiff/respondent made the

following submissions before the court:

a. The plaintiff has given sufficient explanation as per the requirement

under Order VII Rule 6 of the Code of Civil Procedure, 1908 in the

plaint in support of the exemption from the Law of Limitation under

Section 15 (5) of the Limitation Act, 1963. Further, the justification

of limitation cannot be adjudicated in the hearing of Order VII Rule

11 application. The Hon'ble Supreme Court of India has time and

again made it clear that at the Order VII Rule 11 stage it is

important to see the averments made in the plaint and the

argument of the defendants will be absolutely immaterial for that. If

averments in the plaint justifies the delay or exemption it will be

decided in the trial as to whether the same is justified or acceptable

on not. Reliance has been placed on C. Natrajan -v- Ashim Bai

and Anr reported in (2008) AIR SC 363 and Mohan Lal

Sukhadia University, Udaipur -v- Miss. Priya Soloman reported

in 1999 AIR (Raj) 102.

b. The plaintiff has made out the plaint case very clearly in paragraph

nos. 2 to 20 of the plaint affirmed on February 3, 2020. The entire

cause of action has been clearly described within those paragraphs

of the plaint. The plaint speaks for itself and it very well contains

the clear cause of action. The defendant/applicant's contention is

wrong as there is a specific ruling of the Hon'ble Supreme Court of

the Country that at Order VII Rule 11 stage it is important to see

whether averments in the plaint disclose any cause of action and

nothing further needs to be seen. Everything else including the

merit of the cause needs to be decided by way of adjudication in the

trial. Reliance has been placed on P.V. Guru Raj Reddy and Ors -

v- P. Neeradha Reddy and Ors reported in (2015) 8 SCC 331.

c. The instant suit is in no way barred under any provision of the

Judges Protection Act, 1985 because the Judges Protection Act,

1985 does not provide blanket protection to Judges. As per Section

3 (2) of the Judges Protection Act, 1985 the Central Government,

the State Government, the Supreme Court of India, the High Court,

or any other authority under any law for the time being in force can

take appropriate action against a Judge. The instant suit has been

filed against the defendant for not exercising its powers under

section 3(2) of the Judges Protection Act, 1985 and arbitrarily and

whimsically causing limitless suffering to the plaintiff which

includes severe psychological pain and agony, financial losses,

emotional damage and so on, and as such it is very much clear that

the suit has been filed against the defendants for not exercising

its statutory powers causing injustice. Reliance has been placed on

Deelip Bhikaji Sonawane -v- The State of Maharashtra and

Others reported in (2003) 2 BomCR (Cri) 1013 to buttress the

aforesaid argument.

4. I have heard the Counsel appearing for the respective parties and

perused the materials placed on record. The scope of Order 7 Rule 11

must be examined in order to decide the instant application. The

aforementioned provision of law is extracted below:

"Rule 11: Rejection of plaint

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;

(c) where the relief claimed is properly valued, but the plaint is

returned 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 from 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."

5. In the case of T Arivandandam -v- T.V. Satyapal reported in (1977) 4

SCC 467 it was held by the Hon'ble Supreme Court that if on a

meaningful reading of the plaint the same provides an impression that it

is manifestly vexatious, meritless and not disclosing a clear right to sue

then power under Order 7 Rule 11 of CPC should be exercised to ensure

that the ground mentioned therein is fulfilled. Relevant paragraph of the

judgement is delineated below:

"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful -- not formal -- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Cr. XI) and

must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi:

"It is dangerous to be too good.""

6. In the case of Popat and Kotecha Property -v- State Bank of India

Staff Association reported in (2005) 7 SCC 510 it was held by the

Hon'ble Supreme Court that the statement in the plaint without addition

or subtraction must show that it is barred by any law to attract

application of Order 7 Rule 11. The Court further held that disputed

questions cannot be decided at the time of considering an application

filed under Order 7 Rule 11 of the CPC and the plaint can be rejected in

those cases where the statement made by the plaintiff in the plaint,

without any doubt or dispute shows that the suit is barred by any law in

force. Relevant paragraph of the judgement is delineated below:

"25. When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdeo case [(2004) 3 SCC 137] the inevitable conclusion is that the Division Bench was not right in holding that Order 7 Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non-execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years needs evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11. This is not so in the present case."

7. In the recent judgment in Srihari Hanumandas Totala -v- Hemant

Vithal Kamat & Ors reported in (2021) 9 SCC 99 it was held by the

Division Bench presided by D. Y. Chandrachud, J. And M. R. Shah, J.,

that to reject a plaint on the ground that the suit is barred by any law,

only the averments in the plaint will have to be referred to and the

defence made by the defendant in suit must not be considered while

deciding the merits of the application. Further, the court held that the

plea of res judicata requires consideration of the pleadings, issues and

decision in the 'previous suit', such a plea will be beyond the scope of

Order 7 Rule 11 (d), where only the statements in the plaint will have to

be perused. Relevant paragraph of the judgement is delineated below:

"25. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarised as follows:

25.1. To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to.

25.2. The defence made by the defendant in the suit must not be considered while deciding the merits of the application.

25.3. To determine whether a suit is barred by res judicata, it is necessary that (i) the "previous suit" is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit.

25.4. Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the "previous suit", such a plea will be beyond the scope of Order 7 Rule 11(d), where only the statements in the plaint will have to be perused."

8. In the case of C. Natarajan -v- Ashim Bai and Another reported in

(2008) AIR SC 363 it was held by the Hon'ble Supreme Court of India

that applicability of one or the other provision of the Limitation Act per

se cannot be decisive for the purpose of determining the question as to

whether the suit is barred under one or the other article contained in

the Schedule appended to the Limitation Act, 1963. The relevant

paragraphs of the judgement are delineated below:

"8. An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation depends on the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence. (See Popat and Kotecha Property v. SBI Staff Assn. [(2005) 7 SCC 510 : (2005) 4 CTC 489] )

9. Applicability of one or the other provision of the Limitation Act per se cannot be decisive for the purpose of determining the question as to whether the suit is barred under one or the other article contained in the Schedule appended to the Limitation Act."

9. In the case of Merlin Projects Limited -v- Smt. Giniya Devi Agarwala

& Anr decided in GA No. 3675 of 2015 in CS No 369 of 2014 it was

held by the Court that fake litigations clog the courts and deprive the

worthy causes from being attended to. Sham litigation that is barred by

limitation and not disclosing any cause of action should not consume

the precious time of the Court. The relevant paragraph of the judgment

is presented below:

"Since the suit fails primarily on the ground of limitation and the plaint disclosing no cause of action, the aspect of this suit being a suit for land has not been gone into; though plaintiff may have failed even on such count.

One can only express concern that fake litigations as the present one clog the courts and deprive the worthy causes from being attended to. The words of a judicial giant pronounced nearly four decades ago in the judgment reported at (1977) 4 SCC 467 still reverberate:

"7. We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer or the other to present to the Court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to

society not to collaborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the cooperation of the Bar will be readily forthcoming to the Bench for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. ...""

10. Recently, in a judgement passed by the Hon'ble Supreme Court of India,

F. Liansanga & Anr. -v- Union of India & Ors decided in SLP Nos.

32875-32876 of 2018, it was held by the Court that limitation may

harshly affect a particular party, but it has to be applied with all its

vigour when the statute so prescribes. The court also held that Section 5

did not apply to suits, but only to appeals and to applications except for

applications under Order XXI of the Civil Procedure Code, 1908. The

relevant paragraphs of the judgement are delineated below:

"The High Court rightly found that the question to be decided in the suit and in the application filed under Section 5 of the Limitation Act, 1963 was, whether the delay in filing the Money Suit for damages could be condoned by filing an application for condonation of delay under Section 5 of the Limitation Act, 1963.

The High Court held rightly that the Limitation Act was applicable in the State of Mizoram and that a perusal of Section 5 of the Limitation Act, 1963 clearly showed that Section 5 did not apply to suits, but only to appeals and to applications except for applications under Order XXI of the Civil Procedure Code.

As held by this Court in Popat Bahiru Govardhane & Others vs. Special Land Acquisition Officer & Anr. reported in (2013) 10 SCC 765, on which reliance has been placed by the High Court, it is settled law that limitation may harshly affect a particular party, but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds, even though the statutory provision may sometimes cause hardship or inconvenience to a particular party. The Court has no choice, but to enforce it giving full effect to the same."

11. I have heard the Counsel appearing for both the parties and perused the

relevant materials placed on record. The primary issue for consideration

before the Court is whether the plaint is hit by Clause (a) and/or Clause

(d) of Order VII Rule 11 of the Code of Civil Procedure, 1908 and

therefore, liable to be rejected.

12. In my opinion, it is admitted by the plaintiff in the plaint itself that there

is an apparent delay of 1964 days in filing the instant suit.

Consequently, without disputing such admitted delay by the plaintiff it

would be correct to say that just by going through the averments in the

plaint, it is barred under the Limitation Act, 1963. The judgements

passed in T. Arivandandam (supra), Popat and Kotecha (supra) and

Sri Hari (supra) prescribe that the Courts while dealing with Order 7

Rule 11 application must examine the statement in the plaint without

addition or subtraction of any counter or argument made by the

opposite party and only the averments in the plaint will have to be

referred. After following the ratio of the judgements mentioned above

and upon a reading of the averments in the plaint the delay in filing of

the suit is very evident.

13. The justification given by the plaintiff/respondent for the delay is not

applicable in the present case. The counsel for the plaintiff relies on

Section 15 (5) of the Limitation Act, 1963 to state that the period for

which the plaintiff was out of country must be excluded for the purpose

of calculating the limitation period. The relevant portion of the Act is

extracted below:

"15. Exclusion of time in certain other cases.--

(5) In computing the period of limitation for any suit the time during which

the defendant has been absent from India and from the territories outside

India under the administration of the Central Government, shall be

excluded."

On a simple perusal of the Section 15 (5) of the Limitation Act, 1963 it is

clear that the above provision is for excluding the absent period of the

defendant and not that of the plaintiff. Hence, claiming such exclusion

is not applicable to the plaintiff.

14. The findings made in F Liansanga (supra) are applicable to the present

case as well, that is, Section 5 of the Limitation Act, 1963 does not apply

to suits, but only to appeals and applications. The plaintiff had a

limitation period of three years to bring action against the State but he

crossed such limitation period and failed to file the suit within such

period. In conclusion, it is patently clear that the plaint itself shows that

there is a delay of 1964 days in filing of the present suit for which cause

of action arose on August 7, 2009. This is an admission in the plaint

itself, unlike other cases where Limitation is a mixed question of law

and fact as was the case in Popat and Kotecha (supra). In the present

case the plaintiff admits that there is a delay of 1964 days in filing of the

plaint and seeks an exemption under Section 15 (5) of the Limitation

Act, 1963 which is clearly applicable only in computing the period of

limitation when the defendant is absent from India. In the present case,

it is an admitted position that it was not the defendant that was absent

from India, but the plaintiff himself. Accordingly, this section shall not

apply in the present case and the plaintiff cannot rely on this provision

to seek an exemption from the period of limitation. Keeping the above

principles in mind, I have no hesitation in holding that this suit is

inherently barred under the Limitation Act, 1963.

15. I proceed to now examine whether the plaint discloses a cause of action.

In the plaint, the plaintiff stated that cause of action had arisen between

the parties on and from August 7, 2009, that is the date of delivery of

judgement by the Hon'ble Supreme Court. After scrutinizing the

averments made in the plaint with documents relied on by the plaintiff, I

have observed that subsequent to the judgement passed by the Hon'ble

Supreme Court, the plaintiff filed a complaint against the Hon'ble

Justice Gora Chand Dey (retired), being Case No. C/9928 of 2011 under

Section 500 of the Indian Penal Code before the Learned Chief

Metropolitan Magistrate which was dismissed on August 16, 2011. The

Criminal Revision application against the above order was also

dismissed by the Court via judgment dated September 29, 2012. It is to

be noted that the plaintiff did not file any suit for claiming damages for

mental agony suffered by him after unsuccessfully claiming remedy

from the Court. The relationship between the plaintiff and the State is

nowhere in the picture when the plaintiff was seeking remedy by filing

criminal cases against the Hon'ble Judge. When the plaintiff approached

the State without even a single finding in favour of the defamation

allegation made by him against the Hon'ble Judge, it would not be

correct to say that at such moment the cause of action has arisen to

proceed against the State for claiming damages due to mental agony.

The plaint does not disclose any cause of action to proceed against the

State. It appears to me that after exhausting the criminal remedies the

plaintiff moved before the State authorities without highlighting any

cause of action.

16. The plaintiff attempts to underscore the cause of action by referring to

case of criminal defamation being case no. C/9938 filed by him under

Section 500 of the Indian Penal Code, 1860. But it is a mere allegation

which was ultimately decided against the plaintiff in the criminal

revision application. There was no legal obligation cast upon the State to

proceed against the judge and also, the plaint does not demonstrate any

law that creates such an obligation. As has been demonstrated above,

the plaint is woefully lacking in bringing about a cause of action against

the State. Firstly, the plaint doesn't demonstrate as to how the State is

responsible for the actions of the Hon'ble Judge of the High Court. The

plaint fails to indicate any law that creates an obligation on the State to

take action against a Judge for an order passed by the Judge in his

judicial capacity. In fact, the Judge's Protection Act, 1985 clearly

provides protection to the Hon'ble Judge. In my opinion, the State has

no duty to take up cajoles for the plaintiff, and in fact, the State is

required to obey and comply with the orders of the Court. The misplaced

notion of the plaintiff that the State is liable and is required to take

action against orders passed by the High Court is absolutely unfounded

and finds no place in the law. Secondly, it has to be noted that there is

no master-servant relationship between the State and a High Court

Judge, and accordingly, there is no question of any vicarious liability on

the State for the judicial actions of the Judge. Under these

circumstances, it is clear that the plaint is not only barred under the

Limitation Act, 1963 but is also manifestly vexatious and without any

merit whatsoever as the plaint doesn't disclose any cause of action on

the basis of which the plaintiff can proceed against the defendant.

Under these circumstances, I find this is a fit case for exercising the

power conferred upon the Court under Order 7 Rule 11 of the CPC.

17. Based on the above discussion, the instant application bearing G.A. No.

2788 of 2019 in C.S. No. 293 of 2017 for rejection of plaint under Order

VII Rule 11 is allowed. C.S. No. 293 of 2017, is accordingly dismissed.

18. With the above directions the present application is disposed of.

19. Urgent Photostat certified copy of this order, if applied for, should be

made available to the parties upon compliance with the requisite

formalities.

(Shekhar B. Saraf, J.)