Orissa High Court

Niharkanti Mishra vs Nihar Ranjan Patnaik & Others ... ... on 3 April, 2025

              ORISSA HIGH COURT : CUTTACK

                    C.R.P. No.19 of 2024
     An application under Section 115 of the Code of Civil
                      Procedure, 1908
                            ***

Niharkanti Mishra                     ...          Petitioner



                                 -VERSUS-

Nihar Ranjan Patnaik & Others             ...      Opposite Parties




Counsel appeared for the parties:

For the Petitioner            : Mr. B.Mohanty,Advocate.


For the Opposite Parties      : Mr. B.Baug, Advocate



P R E S E N T:

                     HONOURABLE
         MR. JUSTICE ANANDA CHANDRA BEHERA



Date of Hearing: 17.03.2025      ::   Date of Judgment : 03.04.2025





                                 J UDGMENT

ANANDA CHANDRA BEHERA, J.--

1. This revision under Section 115 of the C.P.C,1908 has been

filed by petitioner (defendant No.3 in the suit vide C.S. No.169 of

2023 pending in the Court of learned Civil Judge, Sr. Division,

Bhubaneswar) against the Opposite Parties Nos.1 and 2 (plaintiffs

in that suit vide C.S. No.169 of 2023) arraying the defendant

Nos.1, 2, 4, 5, 6 and 7 of that suit vide C.S. No.169 of 2023 as

proforma Opposite Parties challenging an order of rejection of his

petition dated 05.01.2024 under Order 7 Rule 11 of the

C.P.C.,1908 passed on dated 13.03.2024 by the learned Civil

Judge, Sr. Division, Bhubaneswar in C.S. No.169 of 2023.

2. The factual backgrounds of this revision, which prompted

the petitioner (defendant No.3 in the suit vide C.S. No.169 of

2023) for filing of the same is that, the suit vide C.S. No.169 of

2023 was filed by the O.P. Nos.1 and 2 of this revision being the

plaintiffs against the defendants including the petitioner in this

revision praying for declaration of title, cancellation of sale deeds

and for permanent injunction stating about the accrual of its

cause of action in Para No.16 of their plaint.

3. In that suit vide C.S. No.169 of 2023, the defendant No.3

filed a petition on dated 05.01.2024 under Order 7 Rule 11 of the

C.P.C. Praying for rejection of the plaint of the plaintiffs (O.P.

Nos.1 and 2 in this revision) on the ground that, the suit of the

plaintiffs vide C.S. No.169 of 2023 is without cause of action and

as such there is no cause of action for the plaintiffs to file the

suit. For which, the plaint of the plaintiffs vide C.S. No.169 of

2023 is liable to be rejected.

4. The plaintiffs (O.P. Nos.1 and 2 in this revision) objected to

the same by filing their objection denying the claim of the

defendant No.3.

5. After hearing from both the sides, the Trial Court rejected

such petition dated 05.01.2024 under Order 7 Rule 11 of the

C.P.C. of the defendant No.3 as per Order dated 13.03.2024

assigning the reasons that,

"when the averments in the plaint of the plaintiffs

are disclosing the cause of action for filing of the

same, then, the question of rejection of their plaint

does not arise".

6. On being dissatisfied with the said order dated 13.03.2024

passed by the learned trial court rejecting the petition dated

05.01.2024 under Order 7 Rule 11 of the C.P.C. of the defendant

No.3, he (defendant No.3) challenged the same by filing this

revision.

7. I have already heard from the learned counsel for the

petitioner and the learned counsel for the Opposite Party Nos.1

and 2.

8. It appears from Para Nos.10 and 11 of the petition dated

05.01.2024 under Order 7 Rule 11 of the C.P.C. of the petitioner

(defendant No.3) that, he (petitioner) had filed such petition for

rejection of the plaint of the plaintiffs, on the ground that, there

no cause of action i.e. non-existence of cause of action in the

plaint of the plaintiffs for filing the suit vide C.S. No.169 of 2023.

9. Now, it is to be seen, whether the above ground raised by

the defendant No.3 (petitioner in this revision) for rejection of the

plaint of the plaintiffs vide C.S. No.169 of 2023 on the ground of

non-existence of cause of action in the plaint of the plaintiff is

entertainable under law?

10. Whether, a plaint discloses cause of action or not is

essentially a question of fact.

So, whether, cause of action does or does not exist in the

plaint of the plaintiffs must be found from the readings of the

plaint itself.

11. It is the settled propositions of law that, a plaint can never

be rejected for non-existence of cause of action, but, a plaint can

be rejected for non-disclosure of cause of action.

12. There is distinction between non-disclosure of cause of

action and non-existence of cause of action.

13. So, non-disclosure of cause of action in a plaint would fall

within the ambit of Order 7 Rule 11 of the C.P.C. for rejection of

the plaint, but, whereas, non-existence of cause of action would

not fall within the ambit of Order 7 Rule 11 of the C.P.C. for

rejection of plaint.

On this aspect, the propositions of law has already been

clarified by the Hon'ble Courts and Apex Court in the ratio of the

following decisions:-

(i) In a case between Dahiben Vrs. Arvindbhai Kalyanji Bhanusali (D) thr. LRs. & Others reported in 2021 (1) Civ.C.C. 210 (SC) that, whether a plaint discloses a cause of action or not is

essentially a question of fact, but, whether it does or does not must be found out from reading the plaint itself.

(ii) In a case between Kishore Kumar Vrs. Ishar Dass reported in 2024 (4) CCC 123 (J & K) that, there is distinction between "non-disclosure of cause of action" and "non-existence of cause of action". Non-disclosure of cause of action in a plaint would fall within ambit of Order 7 Rule 11 of the C.P.C. for rejection of the plaint, but, non-existence of cause of action would not fall within ambit of Order 7 Rule 11 of the C.P.C. for rejection of the plaint.

(iii) In a case between Jageshwari Devi & Others Vrs. Shatrughan Ram reported in 2007 (15) SCC 52 that, there is distinction between "non-

disclosure of cause of action" and "non-existence of cause of action". Non-disclosure of cause of action in a plaint would fall within ambit of Order 7 Rule 11 of the C.P.C. for rejection of the plaint, but, non- existence of cause of action would not fall within ambit of Order 7 Rule 11 of the C.P.C. for rejection of the plaint.

14. When, in the petition dated 05.01.2024 under Order 7 Rule

11 of the C.P.C, 1908, the defendant No.3 (petitioner in this

revision) had prayed for rejection of plaint of the plaintiffs on

ground of non-existence of cause of action stating in his petition

that, the plaint of the plaintiffs is without cause of action and

when according to him (petitioner), there is no cause of action in

the plaint of the plaintiffs, then at this juncture, in view of the

principles of law enunciated by the Hon'ble Courts and Apex

Court in the ratio of the aforesaid decisions, the petition dated

05.01.2024 under Order 7 Rule 11 of the C.P.C. of the defendant

No.3 (petitioner in this revision) for rejection of the plaint of the

plaintiffs vide C.S. No.169 of 2023 on the ground of non-existence