Madhya Pradesh High Court
Indore Treasure Island Pvt Ltd vs M/S Enlake Food Ventures Pvt Ltd ... on 4 February, 2022
Author: Anil Verma
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
C.R. No.89/2021
Indore Treasure Island Pvt. Ltd.
Vs.
M/s Enlake Food Ventures Pvt. Ltd. Managing Director)
-1-
Indore, dated 04/02/2022
Heard through Video Conferencing.
Shri V.K. Jain, learned Senior Counsel with Ms. Vaishali Jain,
learned counsel for the petitioner.
Shri H.K. Gilke, learned counsel for the respondent.
The petitioner/defendant has filed this present revision petition
under Section 115 of Code of Civil Procedure, 1908 (in short "CPC")
being aggrieved by the impugned order dated 30.01.2021 passed by
3rd Civil Judge, Class-II, Indore in civil suit No.271/2019 by which an
application filed by the petitioner under Order 7 Rule 11 r/w Section
151 of CPC has been dismissed.
02. The facts of the case in short are that respondent No.1 filed a
civil suit against the petitioner and respondent Nos.2 to 4, for
recovery of Rs.2,27,546/- with interest. An agreement dated
05.10.2018 was executed between respondent Nos.1 and 2, and
respondent No.1 deposited whole security amount of Rs.2,80,000/-.
After serving the notice in the suit, petitioner/defendant No.1 filed an
application under Order 7 Rule 11 r/w 151 of CPC and prayed for
rejection of the suit against him on the ground that no cause of action
is accrued to the plaintiff to file a suit against him and no relief has
been sought against him. There was no contact between the plaintiff
and petitioner/defendant No.1 and implementation of petitioner/
defendent No.1 in the suit is a gross misuse of process of law.
Therefore, it was prayed that plaint should be rejected against him and
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
C.R. No.89/2021
Indore Treasure Island Pvt. Ltd.
Vs.
M/s Enlake Food Ventures Pvt. Ltd. Managing Director)
name of the petitioner should be deleted from suit.
03. The said application was opposed by the respondent No.1 in the
trial court. The respondent No.1 stated in his reply that all the
objections are question of facts which required to be decided by
evidence. After hearing the arguments of both the parties, learned trial
court vide impugned order dated 30.01.2021 dismissed the aforesaid
application on all the objections, hence, present revision petition has
been filed before this Court.
04. Learned counsel for the petitioner contended that
petitioner/defendant No.1 is owner of Treasure Island Mall. The
defendant No.2/respondent No.2 and defendant Nos.3 and 4 are
partners thereof. A rent agreement was executed between respondent
No.2 and 1. Respondent No.1 did not pay the rent according to the
agreement and served notice of termination of leave and licence
agreement dated 15.10.2018. But the petitioner had no concerned on
the transaction between respondent Nos.1 and 2 and there was no
contact between the petitioner and respondent No.1. It is falsely stated
in the suit that respondent No.2 is the partner of Treasure Island Mall
with the petitioner. The petitioner is not necessary and proper party in
the suit pending before the trial court and no cause of action has
arisen against him, the civil suit is not tenable against him but, trial
court has erroneously rejected the said application by the impugned
order.
05. Learned counsel for the petitioner further contended that
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
C.R. No.89/2021
Indore Treasure Island Pvt. Ltd.
Vs.
M/s Enlake Food Ventures Pvt. Ltd. Managing Director)
respondent No.1 has falsely stated in the plaint that respondent No.2
in mutual consent with the petitioner has entered into an agreement
with respondent No.1. Learned trial court failed to observe that
respondent No.1/plaintiff has not prayed for any relief against him in
the suit and no legal and triable cause of action has arisen against him.
Learned trial court has seriously erred in holding that the petitioner is
not seeking rejection of the plaint in part. Trial court has erred in
holding that objections which the petitioner has raised in the
application are mixed questions of law and fact, hence, he prays that
impugned order be set aside and application filed by the petitioner
under Order 7 Rule 11 r/w Section 151 of CPC be allowed and plaint
filed against him be rejected.
06. Per contra, learned counsel for the respondent No.1 supported
the impugned order passed by the court below and also contended that
cause of action has arisen against the petitioner, therefore, he is just,
proper and necessary party in the suit pending before the trial court.
07. Heard learned counsel for both the parties at length and perused
the record.
08. The crux of the controversy, therefore, revolves around the
concept, meaning and dimensions of words "cause of action, wholly
or in part".
The expression "cause of action" has not been defined either in
the Constitution of India or in the Code of Civil Procedure. The cause
of action is often described as a bundle of essential facts necessary
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
C.R. No.89/2021
Indore Treasure Island Pvt. Ltd.
Vs.
M/s Enlake Food Ventures Pvt. Ltd. Managing Director)
for plaintiff to prove if disputed or traversed by defendant to succeed
in the suit. Failure to prove such facts shall entitle the defendant a
right to judgment in his favour, therefore, cause of action gives
occasion for and forms the foundation of the suit.
09. In the case reported in (1989) 2 SCC 163, A.B.C. Laminart (P)
Ltd. v. A.P. Agencies, the Hon'ble Supreme Court has made the
following observations:-
"12. A cause of action means every fact, which if
traversed, it would be necessary for the plaintiff to
prove in order to support his right to a judgment of the
Court. In other words, it is a bundle of facts which
taken with the law applicable to them gives the plaintiff
a right to relief against the defendant. It must include
some act done by the defendant since in the absence
of such an act no cause of action can possibly accrue.
It is not limited to the actual infringement of the right
sued on but includes all the material facts on which it is
founded. It does not comprise evidence necessary to
prove such facts, but every fact necessary for the
plaintiff to prove to enable him to obtain a decree.
Everything which if not proved would give the
defendant a right to immediate judgment must be part
of the cause of action. But it has no relation whatever
to the defence which may be set up by the defendant
nor does it depend upon the character of the relief
prayed for by the plaintiff."
10. While scrutinizing the plaint averments, it is the duty of the trial
Court to ascertain the materials for cause of action, because the cause
of action is a bundle of facts which taken with the law applicable to
them gives the plaintiff the right to relief against the defendant. Every
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
C.R. No.89/2021
Indore Treasure Island Pvt. Ltd.
Vs.
M/s Enlake Food Ventures Pvt. Ltd. Managing Director)
fact which is necessary for the plaintiff to prove to enable him to get a
decree should be set out in clear terms. A cause of action must include
some act done by the defendant since in the absence of such an act no
cause of action can possibly accrue.
11. In light of the controversy, this Court has carefully gone
through the averments made in para 5 of the plaint. Respondent
No.1/plaintiff has categorically stated about the act of the
petitioner/respondent No.1, which is reproduced as under:-
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dksVZ {ks= esa fLFkr fdjk;[email protected] izkIr O;olkf;;ksa ds O;olk;h
{ks= esa uk uk izdkj ls leL;k,a mRiUu djds O;;lk; esa ck/kk,a mRiUu
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mRiUu djrs] O;olkf;d xfrfof/k;ksa ds lqpk: :i ls pyus esa
dfBukb;ksa mRiUu djrs gS] blh Ja[kyk esa izfroknh dzekad 1 ¼,d½ }kjk
ekg fnlacj 2018 ¼nks gtkj vBjk½ es fnukad ¼N%½] 7 ¼lkr½ o 8 ¼vkB½
dks] ekg vizSy 2019 ¼nks gtkj mUuhl½ esa fnukad 26 ¼NCchl½ o 27
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dksVZ ds fdjk;snkjksa }kjk dh xbZ] rc tkdj izfroknh dzekad 2 ¼nks½}kjk
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nks rhu nks ,d pkj ,d½ ,p-Mh-,Q lh- cSd a 'kk[kk VsªM gkml] bUnkSj
ek/;e ls tek djsa A izfroknh dzekad 2 ¼nks½ ds funsZ'k ij oknh }kjk
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HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
C.R. No.89/2021
Indore Treasure Island Pvt. Ltd.
Vs.
M/s Enlake Food Ventures Pvt. Ltd. Managing Director)
pktZsl dk Hkqxrku izfroknh dzekad 1 ¼,d½ ds [kkrs esa fd;k x;k A "
12. Respondent No.2 before filing of the civil suit gave notice dated
06.07.2019 to the respondent No.1 (petitioner) also, which was duly
replied by him.
13. After perusal of the prayer clause in paragraph No.11 of the
plaint, it is clear that plaintiff specifically sought relief against all the
respondents including petitioner/respondent No.1, therefore, it cannot
be said that plaintiff/respondent No.1 did not seek any relief against
the petitioner/defendant No.1. Hon'ble the Supreme Court in the case
of Baluram Vs. P. Chellathangam, reported in 2015 (13) SCC, 579
in paragraph No.15 has held as under:-
"15. A "necessary party" is a person who ought to have
been joined as a party and in whose absence no effective
decree could be passed at all by the court. If a "necessary
party" is not impleaded, the suit itself is liable to be
dismissed. A "proper party" is a party who, though not a
necessary party, is a person whose presence would enable
the court to completely, effectively and adequately
adjudicate upon all matters in dispute in the suit, though
he need not be a person in favour of or against whom the
decree is to be made. If a person is not found to be a
proper or necessary party, the court has no jurisdiction to
implead him, against the wishes of the plaintiff. The fact
that a person is likely to secure a right/interest in a suit
property, after the suit is decided against the plaintiff, will
not make such person a necessary party or a proper party
to the suit for specific performance."
14. Respondent No.2/defendant No.2 is partnership firm, and the
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
C.R. No.89/2021
Indore Treasure Island Pvt. Ltd.
Vs.
M/s Enlake Food Ventures Pvt. Ltd. Managing Director)
defendant Nos.3 and 4 are partners thereof. Respondent No.2 was
granted a Food Court at 4th Floor of Treasure Island on leave of
licence vide agreement dated 26.06.2016. The plaintiff also sought
relief against the petitioner, therefore, at this stage, the petitioner is a
necessary and proper party in the civil suit pending before the trial
court. The present dispute is between the present plaintiff and
defendant in respect of balance amount regarding to the suit property
of the ownership of the petitioner. Therefore, the plaintiff's suit cannot
be rejected against the petitioner/defendant No.1 on the ground that
no cause of action has arisen against him.
15. In view of the aforesaid, this Court is of the considered view
that the trial court has not committed any error of law while rejecting
the petitioner's application under Order 7 Rule 11 r/w Section 151 of
CPC. This Court does not find any reason to interfere with the
impugned order passed by the trial court in exercise of revisional
powers conferred under Section 115 of the Code of Civil Procedure.
Accordingly, the present civil revision is dismissed.
No order as to costs.
(Anil Verma)
Judge
N.R.
Digitally signed by
NARENDRA KUMAR
RAIPURIA
Date: 2022.02.08
17:38:20 +05'30'
