Tsering Norboo vs Phunchok Dorjey And Others
2023 Latest Caselaw 764 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU
                                                  Reserved on : 05.04.2023
                                                  Pronounced on: 20.04.2023

                                                  CR No. 31/2017
                                                  IA No. 1/2017, 1/2018

Tsering Norboo                                     .....Appellant(s)/Petitioner(s)

                     Through: Mr. P. N. Raina, Sr. Advocate with
                              Mr. J. A. Hamal, Advocate.
               Vs
Phunchok Dorjey and others                                    ..... Respondent(s)
                     Through: Mr. Rahul Pant, Sr. Advocate with
                              Ms. Aarushi Shukla, Advocate.

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                               JUDGEMENT

1. This revision petition has been preferred against the order dated

31.10.2017 passed by the court of learned Principal District Judge, Leh

(hereinafter to be referred as 'the trial court') whereby the issue No. 1

was decided in favour the respondent No. 1/plaintiff and against the

petitioner & the respondent No. 2 to 9/defendants therein.

2. The respondent No. 1 filed a suit for declaration declaring the

memorandum of family settlement dated 06.10.2015 executed between the

defendants therein, as null and void and for partition as well as possession

of the suit property i.e. land measuring 66 Kanals-14 Marlas comprising

Khewat No. 26 and 27 situated at Nimoo Leh on the ground that

respondent No. 1 is the son of petitioner/defendant No. 1 and Tsering

Dolker. Respondent No. 1 stated that the parties to the suit belong to

Youndakpa family and are co-sharers in respect of land mentioned above.

The respondent No.1 has mentioned the pedigree of Youndak-pa family in

Para 3 of the plaint. The respondent No. 1 being aggrieved of the

execution of family settlement deed by the petitioner and respondent No.

2 to 9/defendants in the suit, filed the said suit thereby challenging the

said memorandum of family settlement and also prayed for the relief of

partition and possession of the suit property to the extent of his 1/5th share

being the only son of the petitioner. The petitioner & the respondent No. 2

to 9 i.e. the defendants in the suit filed their written statement wherein the

petitioner & the respondent Nos. 2 to 9/defendants denied the status of

respondent No. 1 as son of the petitioner. Besides, it was also pleaded that

as the respondent no. 1 was a stranger, so he cannot claim any cause of

action to file the suit, as such, the suit was liable to be dismissed for want

of cause of action.

3. Taking note of the pleading of the parties, the learned trial court framed

the preliminary issue which is reproduced as under:

"Issue No. 1: Whether plaint of the plaintiff does not disclose any cause of action and therefore, plaint is liable to be rejected? OPD.

The learned trial court after hearing the contesting parties rejected the

contention of the petitioner & the respondent No. 2 to 9 vide order dated

31.10.32017 and decided the issue in favour of respondent No. 1 and

against the petitioner & the respondent Nos. 2 to 9.

4. The petitioner has impugned the order dated 31.10.2017 on the following

grounds:

(i) That the plaint does not disclose any cause of action;

(ii) That the learned trial court has refused to reject the plaint

primarily on the ground that the memorandum of family

settlement was creating a clog on the rights of the respondent No.

1 whereas the petitioner has denied any relationship with

respondent No. 1 and for all intents and purposes, he continues to

be only a stranger for the petitioner;

(iii) That the respondent No. 1 got a State Subject as also a certificate

of his belonging to Scheduled Tribe issued by the Competent

Authority by claiming parentage of petitioner and the petitioner

was never summoned by any such authority and also petitioner

did not have such knowledge that anyone including respondent

No. 1 was laying claim to his parentage in the name of the

petitioner herein.

5. Mr. P. N. Raina, learned senior counsel appearing for the petitioner

vehemently argued that the plaint does not disclose any cause of action as

such, the same was required to be rejected, more particularly when the

respondent No. 1 was not related to petitioner but a stranger. Mr. P. N.

Raina, learned Senior Counsel also tried to persuade this Court that the

suit is hopelessly time barred. He placed reliance upon the judgment of

Hon‟ble Supreme Court in 'Sopan Sukhdeo Sable versus Assistant

Charity Commissioner'2004 AIR (SC) 1801.

6. Mr. Rahul Pant, learned senior counsel appearing for respondent No. 1

vehemently argued that while considering the issue with regard to

rejection of the plaint for want of cause of action, only the averments in

the plaint are required to be examined and if from the mere perusal of the

plaint it transpires that the cause of action is not disclosed, then only the

plaint can be rejected. He further submitted that the defence of the

defendants cannot be looked in to while determining as to whether the

plaint discloses any cause of action or not.

7. Heard and perused the record.

8. The Apex Court has considered the meaning of "cause of action" in its

various pronouncements and it has been held that cause of action would

mean bundle of facts which the petitioner must prove, if traversed, to

entitle him to a judgement in his favour by the court. In "Kunjan Nair

Sivaraman Nair vs. Narayanan Nair and others, (2004) 3 SCC

277", the Hon‟ble Supreme Court again explained the term "cause of

action" and it would be apt to reproduce para 16 and 17 of the judgment

as under:

6. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in "cause of action."

9. Law is well settled that while considering the issue as to whether the

plaint discloses the cause of action or not, the averments made in the

plaint only are required to be considered and the defence of the

defendants cannot be considered for the purpose of determining the said

issue. The plaint can be rejected only when from the averments made in

the plaint it can be gathered that either there is no cause of action or the

court lacks the jurisdiction. In Madanuri Sri Rama Chandra Murthy

v. Syed Jalal, (2017) 13 SCC 174, the Apex Court has held as under:

"7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing

any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."

10. In „Saleem Bhai v. State of Maharashtra, 2003(1) SCC 557', it was

held with reference to Order 7 Rule 11 of the Code that the relevant

facts which need to be looked into for deciding an application are the

averments made in the plaint. The trial court can exercise the power at

any stage of the suit before registering the plaint or after issuing

summons to the defendant at any time before the conclusion of the trial.

For the purposes of deciding an application under Clauses (a) and (d) of

Rule 11 of Order 7 CPC, the averments in the plaint are germane; the

pleas taken by the defendant in the written statement would be wholly

irrelevant at that stage.

11. A perusal of the plaint reveals that the plaintiff/respondent No. 1 claimed

to be the son of the petitioner and being a co-sharer of the undivided

property of Youndak-pa Family, sought declaration of the memorandum

of family settlement deed executed and registered on 06.10.2015 as null

and void, being against the rights of the respondent No. 1 as son of the

petitioner, having interest in the property that was subject matter of the

memorandum of family settlement and also sought partition of the land

mentioned above. It appears from the order impugned that the learned

counsel appearing for the defendants/petitioner & the respondent Nos. 2 to

9 before the learned trial court had sought rejection of the plaint on the

ground that the respondent No. 1 was not the son of the petitioner,

therefore, he had no right to challenge the memorandum of family

settlement. Rightly so, because in the plaint in the preliminary objections

of their written statement, the defendants/petitioner & the respondent Nos.

2 to 9 had categorically pleaded that the respondent No. 1 has no cause of

action to file the suit against the petitioner & the respondent Nos. 2 to

9/defendants, as he was not the son of the petitioner. The learned trial

court after taking note of the pleadings of the respondent No. 1/plaintiff

came to the conclusion that it discloses the cause of action and the suit has

been filed by the respondent No.1 to remove the clog in the form of

memorandum of family settlement on his rights qua the suit property.

12. The contention of the petitioner that the respondent No. 1 is not his son is

the defence of the petitioner in the written statement and the said defence

cannot be looked into for the purpose of rejection of the plaint on account

of lack of cause of action. The reading of the plaint as a whole would

demonstrate that the respondent No.1 has pleaded all the relevant facts to

demonstrate the existence of the cause of action to file the suit. Thus, the

learned trial court has rightly decided the issue in favour of the respondent

No. 1 and against the petitioner &respondent Nos. 2-9. This Court does

not find any illegality in the order impugned.

13. P. N. Raina, learned senior counsel appearing for the petitioner tried to

persuade this Court that the suit is hopelessly time barred. This argument

of Mr. P. N. Raina, learned senior counsel is taken note of for the purpose

of rejection only as the rejection of the plaint was not sought due to the

reason of it being time barred.

14. Viewed thus, this Court is of the considered view that there is no merit in

the present petition and the same is required to be dismissed. Ordered

accordingly.

15. Record, if received in original, be sent back forthwith.

16. Interim directions stand vacated.

(RAJNESH OSWAL) JUDGE

Jammu:

20.04.2023
Sahil Padha
                         Whether the order is speaking:     Yes/No.
                         Whether the order is reportable:   Yes/No.