Telangana High Court
M/S. Vidya Vikas Samithi Trust Tandur vs Prof Smt Shashiprabha Manik Rao on 12 September, 2024
HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
HON'BLE JUSTICE M.G. PRIYADARSINI
A.S.No.362 of 2024
Mr. B. Mayur Reddy, learned Senior Counsel representing Mohd. Ismail Khan, learned counsel
for the appellant
Mr. B. Nalin Kumar, learned Senior Counsel representing Ms. PratushaBoppanna, learned
counsel for respondent No.1
Ms. Padma Sharanappa, learned counsel for respondent Nos.2 to 5
Judgment:(Per Justice Moushumi Bhattacharya)
The Appeal Suit arises out of the order and decree dated
06.01.2024 rejecting the appellants' plaint in O.S.No.80 of 2021
on an Application made by the defendants (respondents herein)
under Order VII Rule 11 (a) and (d) of The Code of Civil
Procedure, 1908 (C.P.C.).
2. The appellants (plaintiffs) had approached this Court in
an earlier Appeal Suit in 2023 (A.S.No.327 of 2023) challenging
the order dated 05.06.2023 passed by the Trial Court rejecting
the plaint on the respondents' Application under Order VII Rule
11 of the C.P.C. A Co-ordinate Bench disposed of the said
Appeal by the judgment dated 09.10.2023 by setting aside the
order dated 05.06.2023, impugned in that Appeal, and
remanding the matter to the Trial Court for re-examining the
Application filed by the respondents/defendants under Order
VII Rule 11 of the C.P.C. and pass a fresh order in accordance
with law.
3. The present Appeal is therefore from a second-look at the
respondents' Application for rejection of the appellants' plaint
on the ground of the plaint not disclosing a cause of action and
being barred by law: Order VII Rule 11(a) and (d) of the C.P.C,
respectively.
4. Learned Senior Counsel appearing for the appellants
submits that the Trial Court misdirected itself in considering
the pleadings and material of the respondents/defendants in
determining whether the plaint should be rejected under Order
VII Rule 11 of the C.P.C. Counsel submits that the impugned
order does not contain any reasons for arriving at the
conclusion that the appellants' plaint should be rejected.
5. Learned Senior Counsel appearing for the respondents/
defendants submits that the Trial Court correctly exercised its
discretion in rejecting the plaint and only considering the
pleadings and documents in the plaint. Counsel submits that
the impugned order contains reasons in support of the
conclusion.
6. We have considered the impugned order passed by the
Trial Court allowing the Application filed by the respondents
and rejecting the Suit filed by the appellants under Order VII
Rule 11 of the C.P.C.
7. The Trial Court recorded the case made out by the
defendants (respondents herein) in paragraphs 1 and 2 of the
impugned order. Paragraph 2 consists of sub-paragraphs (a-g).
The Trial Court considered the allegations made in the plaint
that the 'Society' (plaintiff No.2) passed a Resolution in the
General Body Meeting dated 15.06.1981 to establish a Trust
namely Vidya Vikas Samithi Trust, Tandur, and that an
unregistered Trust Deed dated 27.01.1982 was executed by the
President, Vice-President of the Society with 2 of the Trustees.
The Society subsequently executed a registered Deed of Trust
dated 16.05.1994 represented by the Secretary, the
Chairman/Managing Trustee and other Trustees. The
Chairman/Managing Trustee executed a Deed of Reconstitution
of Trust on 19.01.2012 consisting of himself and other Trustees
including a permanent Trustee. The Trial Court proceeded to
record that the Reconstituted Trust Deed dated 19.01.2012
states that the plaintiff No.2 (Society) shall not interfere in the
activities of the Trust and in the case of any vacancy, the
remaining Trustees shall make necessary appointments to fill
up the vacancy. The Trial Court also recorded that the person
who was claiming to be the Managing Trustee of the Trust was
not nominated or appointed as a Trustee and hence the said
person has no locus standi to sue as the Managing Trustee or
on behalf of the Trust. The Trial Court further recorded the
allegations in the plaint regarding the creation of a duplicate
Trust by the plaintiff No.1 without any authority and that the
original Trust was established by the unregistered Deed of Trust
dated 27.01.1982 which is entirely different from the
subsequent reconstitution established vide a Deed of Trust
dated 11.12.2020.
8. In the continuing sub-paragraphs of paragraph 2, the
Trial Court referred to an impleadment petition filed by the
person claiming to be the Managing Trustee of the Trust which
is contrary to the allegations made in the plaint filed in the Suit.
The Trial Court also refers to a perpetual injunction granted by
the High Court in A.S.No.680 of 2014 which runs contrary to
the ex parte injunction granted in O.S.No.80 of 2021 by the
appellants/plaintiffs.
9. In paragraphs 3 and 4, the Trial Court referred to the
counter affidavit filed by the plaintiffs/appellants reiterating the
material averments made in the plaint in O.S.No.80 of 2021
claim for dismissal of the Application filed under Order VII Rule
11 of the C.P.C. by the respondents herein.
10. In paragraph 8, the Trial Court reiterated that in an
application for rejection of the plaint under Order VII Rule 11 of
the C.P.C., the Court is only required to consider the statements
in the plaint.
11. In paragraph 9 and the sub-paragraphs thereunder, the
Trial Court reiterated the contents of paragraphs 1 and 2 as
stated above with regard to the averments made in the plaint.
Paragraph 9 (g) concluded that O.S.No.80 of 2021 has been filed
by the plaintiffs questioning the deed of Reconstitution of Trust
dated 07.07.2021 by the defendant No.1 who has no power or
authority to 'knock-away' (the Court assumes the expression to
mean dissipate) the properties of the Trust by nominating
outsiders as Trustees.
12. In paragraph 10 (a-k), the Trial Court however referred to
the material on record and the arguments made by the plaintiffs
and the defendants. The Trial Court considers in great detail on
the alleged activities of the Managing Trustee and other
Trustees and the alleged activities of the defendants in
encroaching upon the property of the Trust and demolishing the
superstructure for the purpose of grabbing the land.
13. Paragraphs 11-15 refer to the law with regard to the
rejection of the plaint under Order VII Rule 11 of the C.P.C.
Paragraphs 16-18 contain repetition of the facts. Paragraph 18
refers to Ex.B-6 being the registered deed of Reconstitution of
Trust dated 19.01.2012. Paragraph 19 is the penultimate
paragraph where the Trial Court refers to Colonel Shrawan
Kumar Jaipuriyar v. Krishna Nandan Singh 1 to hold that the
plaintiff must have a clear right to sue in the form of a cause of
action failing which the plaint is liable to be rejected. The Trial
Court concluded that the plaintiffs do not have a right to sue
the defendants who are the Trustees and that the cause of
action shown by the plaintiffs is a result of clever drafting.
14. The Court has carefully read the impugned order several
times but is constrained to say that, it is indeed difficult, if not
impossible, to separate the averments in the plaint and the case
(2020) 16 SCC 594
made out by the defendants. The impugned order contains
repetition of facts, refers to evidence and also the submissions
made on behalf of the defendants (including in paragraph (10-
a)).
15. The narration of facts is so convoluted that the exercise of
determining whether the plaint discloses a cause of action
becomes a mix-up of the plaint's case + evidence read with the
defence of the defendants. To complicate the matter further, the
conclusion of the Trial Court that the plaint does not disclose a
clear right to sue or a cause of action in paragraph 19 of the
impugned order is not buttressed by any reason for coming to
that conclusion. Contrary to the submissions made on behalf of
the respondents/defendants, this Court tried to locate the
reason for holding in favour of the defendants that the plaint
should be dismissed. In fact, there is no reason given in
paragraph 19 of the impugned order as to why the defendants'
application for rejection of the plaint should succeed.
16. The law with regard to rejection of the plaint under Order
VII Rule 11 of the C.P.C. is that the plaint must disclose a clear
right to sue and whether the plaintiff is entitled to a decree from
the statements made in the Court: Liverpool & London S.P. & I.
Association Ltd. vs. M.V. Sea Success I 2 . There are several
decisions of the Courts that only the statements made in the
plaint must be seen and not the Written Statement: Sopan
Sukhdeo Sable vs. Assistant Charity Commissioner 3 . The law
further declares that Order VII Rule 11 of the C.P.C.
circumvents trial for Suits which are manifestly vexatious and
meritless: T.ArivandandamVs. T.V. Satyapal 4. The word 'shall' in
Order VII Rule 11 of the C.P.C. makes rejection mandatory in
such cases.
17. In the recent judgment of the Supreme Court in Dahiben
vs. Arvindbhai Kalyanji Bhanusali (Gajra) 5, the test under Order
VII Rule 11 of the C.P.C was explained with reference to
decisions in that respect.
18. The respondents/defendants relied on Dahiben (supra) to
urge that a document referred to in the plaint should also be
taken into consideration for deciding an application under
Order VII Rule 11(a) - where the plaint does not disclose a cause
of action. This judgment however would not come to the
assistance of the respondents/defendants since the impugned
(2004) 9 SCC 512
2004 (3) SCC 137
(1977) 4 SCC 467
(2020) 7 SCC 366
order does not contain the necessary clarity for separating the
statements made in the plaint and the case of the defendants.
19. The point is not whether the Court was right in
considering documents annexed to the plaint - Exs.B.1-8 - but
whether the impugned order offers coherent reasons for
rejecting the plaint from the averments made in the plaint as
opposed to the case of the respondents/defendants. After all, an
order of rejection of a plaint cannot be a value-judgment or one
which reflects pre-conceived thinking by the Court on the
perceived infirmities of the Suit.
20. As stated above, the facts are jumbled up in a manner to
make this separation difficult for us.
21. Needless to say, the exercise required under Order VII
Rule 11 of the C.P.C is to see whether the plaint establishes a
cause of action and whether from the averments, by itself,
would invite a decree. It is not necessary for the Court to
consider the overall defect of the case of the plaintiff as well as
the defendant for arriving at the conclusion as to whether the
plaint should be sustained or rejected.
22. The respondents/defendants also do not have any ground
to oppose the present Appeal since this Court is not able to find
any link between the narration of facts from paragraphs 1-18 of
the impugned order and the conclusion in paragraph 19 that
the plaint should be rejected. There is no reason at all in
support of the ground that the plaint does not disclose a cause
of action and is hence liable to be rejected or that the plaintiffs
attempted to create a cause of action by clever drafting.
23. It would indeed be extraordinary for a plaintiff to demolish
its own cause of action in the plaint by making statements
which are inconsistent with the relief claimed or more
specifically to aver that documents annexed to the plaint are
"spurious" (para 10(i) of the impugned order). Most curious
indeed.
24. Order VII Rule 11 (a) and (d) of the C.P.C. reflect two
distinct grounds, namely, of the plaint not disclosing a cause of
action and the Suit appearing from the statement in the plaint
to be barred by law respectively. Therefore, the Trial Court
should have indicated its reasons for holding that the plaint is
also liable to be rejected under Order VII Rule 11 (d) of the
C.P.C.
25. The suggestion made on behalf of the respondents that
the remarks of the Trial Court may be expunged is not
acceptable in view of the nature of the present proceeding. The
findings are not unparliamentary or objectionable in a
moral/ethical sense to merit deletion.
26. We, therefore agree with the appellants/plaintiffs that the
impugned order does not disclose the reasons for rejecting the
plaint. The reasons for coming to this conclusion are stated in
the foregoing paragraphs.
27. A.S.No.362 of 2024 is accordingly allowed. The impugned
order dated 06.01.2024 is set aside. All connected applications
are disposed of in terms of this judgment.
_________________________________
MOUSHUMI BHATTACHARYA, J
________________________________
M.G.PRIYADARSINI, J
Date: 12.09.2024
va
