REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.     4982       OF 2008 (Arising out of S.L.P. (C) No. 8622 of 2007)

ABDUL GAFUR & ANR. — APPELLANT (S)

VERSUS

STATE OF UTTARAKHAND & ORS. — RESPONDENT (S)

J U D G M E N T

D.K. JAIN, J.:

Leave granted.

2.  This  appeal,  by  special  leave,  is  directed  against  the

order, dated 29th March, 2007, passed by the High Court of

Uttarakhand in Writ Petition Misc. No.272 of 2007 whereby

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the two suits filed by the appellants for perpetual injunction

have been dismissed in limine.

3.   Facts  necessary  for  the  disposal  of  this  appeal  are  as

follows:

On 2/28th March, 2005, a gazette Notification was issued

under Section 4 of the Land Acquisition Act, 1894 (for short

‘the Act’)  for acquiring 0.6900 Hec. of land belonging to one

Tek  Chand,  respondent  No.4  herein,  for  construction  of

approach  road  for  Himalayan  Institute  Hospital  Trust,

Dehradun,  respondent  No.3  (hereinafter  referred  to  as  “the

Hospital”).  Tek Chand objected to the said acquisition.  In the

meanwhile, on 25th May, 2005, he alienated a part of the said

land in favour of appellants No.1 and 2 by way of gift deeds.

Gazette notification under Section 6 of the Act was published

on 16th June, 2005.   

4. On 4th July, 2005, Tek Chand (respondent No.4) preferred a

Writ Petition challenging the validity of Notifications under

Sections 4 and 6 of the Act.  It appears that on 27th March,

2006, a clarification was issued by the State Government,

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respondent  No.1,  to  the  effect  that  the  possession  of  the

passage  to  the  Hospital  shall  remain  with  them;  the

Government would be making financial contribution in its

construction and the public  would be entitled to use the

same.  In the affidavit filed on behalf of the Government in

the  Writ  Petition it  was reiterated  that  the  road was not

going to be used exclusively by the Hospital.   Ultimately,

the Writ Petition was dismissed.  Special Leave Petition filed

by Tek Chand against the said order was also dismissed on

15th September, 2006.  Licence deed in respect of the said

land  was  executed  in  favour  of  the  Hospital  on  16th

November, 2006 and construction of the road commenced

some time in November, 2006.

5. Apprehending that the Hospital was planning to raise a wall

on both sides of the road, obstructing use of the road by the

public  at  large,  including  the  appellants,  the  appellants

filed the aforementioned two suits against the Hospital and

Tek  Chand  for  perpetual  injunction  in  the  court  of  Civil

Judge (JD), Dehradun, restraining the Hospital from raising

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construction  of  any  nature  in  the  said  property.

Applications under Order 39, Rules 1 & 2 of the Code of

Civil Procedure,  1908 (for short “the Code”) were also filed

for grant of interim injunction.

6. The  suits  were  contested  by  the  Hospital.   Taking  into

consideration the written statement filed on behalf  of  the

Hospital  and after  hearing the parties, the trial  court,  by

detailed  orders,  dated  2nd February,  2007,  granted

temporary  injunction  in  favour  of  the  appellants  and

restrained the Hospital from constructing boundary wall on

both sides  of  the road in question.   Being aggrieved,  the

Hospital,  filed  appeals  to  the  court  of  District  Judge,

Dehradun.   Arguments  in  the  appeals  were  heard  and

orders were reserved.

7. During the pendency of the appeals,  Tek Chand filed yet

another  Writ  Petition  on  11th March,  2007,  inter  alia,

alleging  that  the  acquisition  was  fraudulent.  While

entertaining  the  Writ  Petition,  exercising  its  power  under

Section 24 of the Code, vide an ex-parte order dated 20th

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March, 2007, the High Court transferred both the said suits

as  well  as  the  civil  appeals  to  itself  in  order  to  get  the

dispute settled between the parties.  In the said order, the

High Court directed that both the lower courts shall  give

notices  to  all  the  parties  in  the  suit  and  the  appeals,

informing  them  that  the  suits  and  appeals  stand

transferred  to  the  High  Court  and they  were  required  to

appear in person before the Court on 28th March, 2007.  On

the said order being communicated to the appellants, they

filed  Misc.  Application  No.  499  of  2007  in  the  said  Writ

Petition seeking recall of order dated 20th March, 2007.

8. When the Writ Petition came up for consideration, on 29th

March, 2007, the High Court dismissed both the suits and

the appeals by passing the following short order:

“We  have  perused  the  averments made  in  the  suits  as  well  as  in  the appeals,  which  are  represented  by  Sri Neeraj Garg (Advocate).

Since,  the  question  involved  is directly raised in the writ petition and we are  hearing  the  writ  petition,  therefore, the  suits  as  well  as  appeals  pending

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before  the  court  below  are  dismissed accordingly.

Let  this  writ  petition  for  final hearing on 03.04.2007.  Learned Counsel for  the  Respondents  may  file  Counter Affidavit, if any, by 03.04.2007.

In the meantime, if the Respondents shall  raise any construction that will be at their own risk.”

It is against this order of the High Court that this appeal, by

special leave, has been filed.

9. Mr. Mukul  Rohtagi  and Mr. P.S.  Patwalia,  learned senior

counsel  appearing  on  behalf  of  the  appellants  submitted

that  the  High  Court  has  committed  a  manifest  error  in

dismissing the suits by a cryptic order without taking into

consideration the nature and the purport of the two suits.

Learned counsel argued that the scope of the Writ Petition

filed by the original owner of the subject land and the suits

filed by the appellants was entirely different inasmuch as in

the suits there is no challenge to the acquisition of the piece

of land as in the case of the Writ Petition.  It was pointed

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out that the relief in the suits is confined to the right of the

appellants to use the public road laid on the acquired land.

On  merit,  it  was  strenuously  urged  that  being  a  public

street, neither the State nor any one claiming under it could

cause any obstruction or hindrance in its user by enclosing

it with the walls.  In support of the proposition that the land

having been acquired for construction of a public road, it

could  not  be  leased  out  for  private  use,  learned  counsel

placed reliance on a decision of this Court  in  Municipal

Board, Manglaur Vs. Sri Mahadeoji Maharaj1 as also on

a decision of the Allahabad High Court in Ram Swarup &

Anr. Vs. Municipal Board, Bulandshahr & Anr.2  It was

also alleged that taking advantage of the time gap between

the dismissal of the suits and ad interim injunction by this

Court, the Hospital has completed the wall on both sides of

the road in a tearing hurry to make the present appeal a

fait accompli.   It is, thus, pleaded that the Hospital should

be directed to demolish the wall and restore status quo ante.

1  [1965] 2 S.C.R. 242 2  A.I.R. 1979 ALLAHABAD 361

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10. Per  contra,  Mr.  Jayant  Bhushan,  learned  senior  counsel

appearing  on  behalf  of  the  Hospital,  while  candidly

admitting that the manner in which the two suits have been

dismissed  by  the  High  Court  is  totally  indefensible,

submitted  that  said  suits  were  nothing  but  yet  another

attempt by the original owner, respondent No.4 herein, to

somehow retain the  control  on the  acquired  land,  now a

public road, as it would enhance the value of his remaining

land on both sides of  the road.   Learned counsel  was at

pains to assert that the land on both sides of the road was

proposed  to  be  developed  by  respondent  No.4  as  a

commercial  venture  in connivance  with the appellants.  It

was argued that if the road is used as a thoroughfare, the

very purpose of acquisition of land for providing free and

smooth  passage  to  those  visiting  the  Hospital,  would  be

defeated.

11. Mr. V.K. Jain, learned counsel, appearing on behalf of the

State  Government,  supporting  the  stand  of  the  Hospital,

submitted  that  both  the  suits  being  meritless,  the  High

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Court  was justified  in dismissing  them.   To  buttress  the

submission  that  vexatious  and  meaningless  litigation

should  be  closed  at  the  earliest  stage,  learned  counsel

placed  reliance  on  a  decision  of  this  Court  in  T.

Arivandandam Vs. T.V. Satyapal & Anr.3.  

12.Thus, the short question for consideration is whether the

High Court was justified in dismissing the two suits on the

sole  ground  that  it  was  proposing  to  examine  a  similar

issue in the Writ Petition preferred by the original owner of

the land?

13. Section 9 of the Code provides that civil  court shall  have

jurisdiction to try all  suits of a civil  nature excepting the

suits  of  which  their  cognizance  is  either  expressly  or

impliedly barred.  To put it differently, as per Section 9 of

the  Code,  in  all  types  of  civil  disputes,  civil  courts  have

inherent  jurisdiction  unless  a  part  of  that  jurisdiction  is

carved out from such jurisdiction, expressly or by necessary

implication  by  any  statutory  provision  and  conferred  on

3 (1977) 4 SCC 467

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other Tribunal or Authority.  Thus, the law confers on every

person an inherent right to bring a suit of civil  nature of

one’s  choice, at one’s peril,  howsoever frivolous the claim

may be, unless it is barred by a statute.   

14. In  Smt. Ganga Bai  Vs.  Vijay Kumar & Ors.4, this Court

had observed as under:

“There  is  an  inherent  right  in  every person to bring suit of a civil nature and unless the suit is barred by statute one may, at ones peril,  bring a suit of one's choice.  It  is  no  answer  to  a  suit, howsoever  frivolous  the  claim,  that  the law confers no such right to sue. A suit for  its  maintainability  requires  no authority of law and it is enough that no statute bars the suit.”

15. In  Dhannalal  Vs.  Kalawatibai  &  Ors.5 relying  on  the

afore-extracted  observation in  Ganga Bai’s case  (supra),

this Court had held as follows:

“Plaintiff  is  dominus litis, that is, master of, or having dominion over, the case. He is  the  person  who  has  carriage  and control of an action. In case of conflict of jurisdiction the choice  ought to lie  with

4 (1974) 2 SCC 393 5 (2002) 6 SCC 16

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the  plaintiff  to  choose  the  forum  best suited  to him unless  there  be  a rule  of law  excluding  access  to  a  forum  of plaintiff's choice or permitting recourse to a forum will be opposed to public policy or will be an abuse of the process of law.”

16. It is trite that the rule of pleadings postulate that a plaint

must  contain  material  facts.  When  the  plaint  read  as  a

whole does not disclose material facts giving rise to a cause

of action which can be entertained by a civil court, it may

be  rejected  in  terms  of  Order  7,  Rule  11  of  the  Code.

Similarly, a plea of bar to jurisdiction of a civil court has to

be considered having regard to the contentions raised in the

plaint.  For the said purpose, averments disclosing cause of

action and the reliefs sought for therein must be considered

in  their  entirety  and  the  court  would  not  be  justified  in

determining the question, one way or the other, only having

regard to the reliefs claimed  de’hors  the factual averments

made  in  the  plaint.  (See:  Church  of  North  India  Vs.

Lavajibhai Ratanjibhai & Ors.6)

6 (2005) 10 SCC 760

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17. Having considered the matter in the light of the afore-stated

legal  position,  we  are  of  the  opinion  that  the  impugned

order cannot be sustained.  It is true that under Section 24

of the Code,  the High Court  has jurisdiction to  suo motu

withdraw  a  suit  or  appeal,  pending  in  any  court

subordinate  to  it,  to  its  file  and  adjudicate  itself  on  the

issues involved therein and dispose  of the same.   Unless

the High Court decides to transfer the suit or the appeal, as

the case may be, to some other court or the same court, it

is  obliged to try,  adjudicate  and dispose  of the same.  It

needs little emphasis that the High Court is competent to

dispose of the suit on preliminary issues, as contemplated

in Order 14 Rule 1 & 2 of the Code, which may include the

issues with regard to maintainability of the suit.  If the High

Court is convinced that the plaint read as a whole does not

disclose  any  cause  of  action,  it  may  reject  the  plaint  in

terms of Order 7 Rule 11 of the Code.  As a matter of fact,

as observed by V.R. Krishna Iyer, J., in T. Arivandandam

(supra),  if  on a  meaningful  -  not  formal  – reading of  the

plaint, it is manifestly vexatious, and meritless, in the sense

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of  not  disclosing  a  clear  right  to  sue,  the  court  should

exercise its power – under the said provision.  And if clever

drafting  has  created  an  illusion  of  a  cause  of  action,  it

should  be  nipped  in  the  bud  at  the  first  hearing  by

examining  the  party  searchingly  under  Order  X  CPC.

Nonetheless,  the  fact  remains  that  the  suit  has  to  be

disposed  of  either  by  the  High  Court  or  by  the  courts

subordinate  to  it  in  a  meaningful  manner  as  per  the

procedure  prescribed  in  the  Code  and  not  on one’s  own

whims.

18. In the instant case, as noted above, vide order dated 20th

March, 2007, the High Court transferred the two suits and

the appeals to itself.   On being served with a copy of the

said  order,  the  appellants  immediately  moved  an

application  for  recall  of  the  said  order.   In  the  said

application,  it  was  pointed  out  that  in  the  appeals,

preferred  by  the  Hospital  against  the  interim  injunction

granted by the civil judge, argument had been heard by the

district  judge  and  order  was  to  be  pronounced  on  26th

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March, 2007 but in the meanwhile on 20th March, 2007, the

High  Court  passed  the  order  withdrawing  the  appeals  to

itself.  When the transferred case came up for consideration

before the High Court on 29th March, 2007, without passing

any order on the application preferred by the appellants for

recall  of  order  dated  20th March,  2007,  the  High  Court

dismissed the suits on the aforenoted ground, namely, the

issues raised in the suits were being examined in the Writ

Petition.   We  have  no  hesitation  in  holding  that  the

procedure adopted by the High Court is unknown to law.

We are conscious of the fact that the object of filing of the

suits could be a dubious and indirect attempt on the part of

Tek  Chand,  respondent  No.4,  to  derive  some  undue

advantage in connivance with the plaintiffs, yet that was no

ground to dismiss  the  suits  summarily  in the  aforenoted

manner.   It  must  be  kept  in  mind  that  one  of  the

fundamental  norms  of  judicial  process  is  that  arguable

questions either legal or factual, should not be summarily

dismissed  without  recording  a  reasoned  order.   A  mere

entertainment of the Writ Petition, to which the appellants

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herein were not parties, even if it involved determination of

similar issues,  in our opinion,  was not a good ground to

dismiss the two suits without granting opportunity to the

parties  to  prove  their  respective  stands.   Moreover,  the

scope of the Writ Petition and the two suits also seems to be

different.

19. On a conspectus of the factual scenario and in view of the

above  discussion,  the  appeal  is  allowed;  the  impugned

order,  dated  29th March,  2007,  is  set  aside  and  the  two

suits and the appeal, dismissed in terms of the said order,

are  restored  to  the  file  of  the  High  Court  for  fresh

adjudication  and  disposal  in  accordance  with  law.   The

High  Court  may  also  pass  appropriate  orders  on  the

appellant’s  prayer  for  restitution,  for  which  purpose  I.A.

No.7 of 2007 shall stand transferred to the High Court.  We

may clarify that we have not expressed any opinion on the

merits  of  the  two  suits  or  the  appeals,  which  shall  be

considered  and  disposed  of  on  their  own  merits,

uninfluenced by any observation in this judgment.

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20. In the facts and circumstances of the case, the parties will

bear their own costs.  

………………………………………….J.        (C.K. THAKKER)

                              ..….…………………………………….J.        (D.K. JAIN)

NEW DELHI; AUGUST 11, 2008.

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