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CASE NO.: Appeal (civil)  448 of 2004

PETITIONER: Sopan Sukhdeo Sable & Ors.                               

RESPONDENT: Assistant Charity Commissioner & Ors.            

DATE OF JUDGMENT: 23/01/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T (Arising out of SLP (Civil) No. 20366/2002)

ARIJIT PASAYAT,J

       Leave granted.

       The appellants who were plaintiffs in a suit filed  before the learned Civil Judge, Senior Division, Srirampur  have questioned legality of the conclusions arrived at by  the Courts below holding that the plaint filed by them was  to be rejected in terms of Order VII Rule 11 of the Code of  Civil Procedure, 1908 (in short the ’Code’). The plaintiffs  claimed to be tenants under respondent No.2, Shaneshwar  Deosthan Trust (hereinafter referred to as the ’trust’). Its  trustees and the Assistant Charity Commissioner (in short  the ’Commissioner’) were the other defendants. Plaintiffs  claimed that they were tenants of the trust of which the  defendants Nos. 3 to 13 were the trustees. Alleging that  they have been forcibly evicted notwithstanding continuance  of the tenancy, the suit was filed for the following  reliefs:

A) Plaintiff no. 1 to 17, be declared as the  tenants of the properties described in the  plaint belonging to temple Trust, of which  defendant No.2 to 13 are trustees.

B)      Defendant No.1 to 13, be permanently  restrained by an order of injunction not to  evict plaintiff No.1 to 13, forcibly with  the help of police and also not to   interfere in their business being carried on  by them in suit shops, and not to interfere  in the possession of suit shops in any  manner-whatsoever, either by themselves or  by their servants, agents, relatives or  anybody claiming through or under them.

C)      Direct the defendant No. 2 to 13, to  pay compensation for the loss caused to the  plaintiffs on account of their acts of

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omission and commission as described in the  plaint, committed by them prior to the  filing of the suit and during pendency of  suit for the damage that may be caused to  the plaintiffs.

D)      Defendant No.1 be directed to enquire  into the illegal acts, committed by  defendant No.2 to 13, and issue appropriate  direction to that effect.      

        The suit was numbered as R.C.S. No.160/1997 in the  trial Court. The stand of the plaintiffs-appellants  essentially was that the tenancy was for a period of 11  years and not for 11 months as claimed by the trust. An  application was filed by the trust raising a preliminary  plea that the plaint is liable to be rejected under Order  VII Rule 11 of the Code. With reference to Section 80 of the  Bombay Public Trusts Act, 1950 (in short the ’Act’) it was  urged that no Civil court had jurisdiction to decide or deal  with any question which by or under the Act is to be decided  or dealt with by any officer or authority under the Act and  in respect of which the decision or order of such officer or  authority has been made final and conclusive. The trial  Judge framed two preliminary issues, i.e. (a) whether the  suit was liable to be rejected under Order VII Rule 11 of  the Code for want of cause of action, and (b) whether the  suit was tenable against all the defendants. Findings in  respect of the preliminary issues were recorded against the  plaintiffs. A finding was recorded that the plaint does not  disclose any cause of action and also in view of the  specific provisions of the Act, the jurisdiction vests only  with the District Court to give direction to Commissioner  and in any event Section 80 of the Act took away  jurisdiction of the Civil Court and the plaint was rejected.  Challenging the judgment and decree dated 21.10.2000 passed  by the learned Civil Judge, Senior Division, Srirampur, an  appeal was preferred before the District Court which was  numbered as Regular Civil Appeal No.178 of 2000. The appeal  was dismissed and the decree passed by the trial Court was  confirmed by II Additional District Judge at Srirampur,  Ahmed Nagar District. The matter was carried in Second  Appeal before the High Court which by the impugned judgment  upheld the findings recorded by the Courts below. Before the  High Court, it was contended by the appellants that Sections  50, 51 and 80 of the Act had no application and the lease  being for 11 years, the action of the trust in dispossessing  the plaintiffs forcibly cannot have the approval of law. The  stand of the trust was to the effect that the plaintiffs  have not approached the Court with clean hands. They had  tried to get relief from the High Court by filing a petition  under Article 226 of the Constitution of India, 1950 (in  short the ’Constitution’). They failed to comply with the  interim directions given by the High Court and before the  date posted before the High Court for consideration of the  interim orders, they filed the suit and prayed for  injunction. Subsequently, the writ petition was withdrawn.  The plaint filed by the plaintiffs did not disclose any  cause of action and in any event the relief sought for could  not have been granted by the Civil Court in view of the  specific provisions contained in Sections 50, 51 and 80 of  the Act. There was no forcible dispossession as claimed. The  Courts below were justified in rejecting the plaint.

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The High Court accepted the plea of the trust and  dismissed the second appeal affirming the conclusions  arrived by the Courts below.  

       In support of the appeal, Mr. V.A. Mohta, learned  senior counsel appearing for the appellants submitted that  the Courts below have lost sight of the nuances of Order VII  Rule 11 of the Code. Even if for the sake of arguments it is  conceded that some reliefs were to be dealt with by the  authorities under the Act, the reliefs were severable and  the Civil Court had jurisdiction to deal with them. The  dispute projected in the suit essentially related to the  question of tenancy and the relationship between the  plaintiffs and the defendant-trust vis-‘-vis the question of  tenancy, the term of tenancy are matters intermittently  linked with these basic issues. Such issues cannot be  decided by the authorities under the Act. Therefore, the  rejection of the plaint under Order VII Rule 11 of the Code  cannot be maintained in law. The plaintiffs were  dispossessed illegally and a person dispossessed illegally  was entitled to protection. A person without title but in  ’settled’ possession as against mere fugitive possession,  can get back possession if forcibly dispossessed or rather  if dispossessed otherwise than by due process of law.

       Per contra, Mr. A.V. Savant, learned senior counsel  appearing for the defendant-trust submitted that the Courts  below have concurrently found it as a matter of fact that  the plaint did not disclose a cause of action and the Civil  Court had no jurisdiction to deal with a matter,  specifically in view of what has been statutorily provided  in Section 80 of the Act. With reference to the judgment of  the High court it was pointed out that the plaintiffs had  not approached the Court with clean hands. They had adopted  dubious methods, did not comply with the directions of the  High Court for depositing the stipulated amount. By a ruse,  some reliefs have been sought for in the plaint totally out  of context with the main prayers which are to be dealt with  in terms of Sections 50 and 51 of the Act. There were no  pleadings about alleged forcible dis-possession and wholly  untenable plea about the period of tenancy has been rightly  rejected by the Courts below. Clauses (a) and (d) of Rule 11  have full application to the facts of the case. The whole  purpose in filing the suit was to somehow or other remains  in possession of the shops which were leased out to them for  certain periods. As a result of the actions of the  plaintiffs, the trust would have been put to huge financial  loss. All this according to him, disentitle the appellants  from any relief under Article 136 of the Constitution.

       Order VII Rule 11 of the Code reads as follows:

Order VII Rule 11: Rejection of plaint. \026  The plaint shall be rejected in the  following cases :-

(a)     where it does not disclose a cause of  action;

(b)     where the relief claimed is  undervalued, and the plaintiff, on being  required by the Court to correct the  valuation within a time to be fixed by the  court, fails to do so;

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(c)     where the relief claims is properly  valued but the plaint is written upon paper  insufficiently stamped, and the plaintiff,  on being required by the Court to supply the  requisite stamp-paper within a time to be  fixed by the Court, fails to do so;

(d)     where the suit appears from the  statement in the plaint to be barred by any  law;

(e)     where it is not filed in duplicate; (f)     where the plaintiff fails to comply  with the provisions of rule 9.

       Provided that the time fixed by the  Court for the correction of the valuation or  supplying of the requisite stamp-paper shall  not be extended unless the Court, for  reasons to be recorded, is satisfied that  the plaintiff was prevented by any cause of  an exceptional nature for correcting the  valuation or supplying the requisite stamp- paper, as the case may be, within the time  fixed by the Court and that refusal to  extend such time would cause grave injustice  to the plaintiff."                     

       In the present case the respondent-trust has relied  upon clauses (a) and (d) of Rule 11.  

       Before dealing with the factual scenario, the spectrum  of Order VII Rule 11 in the legal ambit needs to be noted.           In Saleem Bhai and Ors. v. State of Maharashtra and  Ors. (2003 (1) SCC 557) it was held with reference to Order  VII Rule 11 of the Code that the relevant facts which need  to be looked into for deciding an application thereunder are  the averments 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 Order  VII Rule 11 of the Code, the averments in the plaint are the  germane; the pleas taken by the defendant in the written  statement would be wholly irrelevant at that stage.

       In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal and  Ors. (1998 (2) SCC 70) it was held that the basic question  to be decided while dealing with an application filed under  Order VII Rule 11 of the Code is whether a real cause of  action has been set out in the plaint or something purely  illusory has been stated with a view to get out of Order VII  Rule 11 of the Code.

       The trial Court must remember that if on a meaningful  and not formal reading of the plaint it is manifestly  vexatious and meritless in the sense of not disclosing a  clear right to sue, it should exercise the power under Order  VII Rule 11 of the Code taking care to see that the ground  mentioned therein is fulfilled. If clever drafting has  created the illusion of a cause of action, it has to be  nipped in the bud at the first hearing by examining the  party searchingly under Order X of the Code. (See T.

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Arivandandam v. T.V. Satyapal and Anr. (1977 (4) SCC 467)

       It is trite law that not any particular plea has to be  considered, and the whole plaint has to be read. As was  observed by this Court in Roop Lal Sathi v. Nachhattar Singh  Gill (1982 (3) SCC 487), only a part of the plaint cannot be  rejected and if no cause of action is disclosed, the plaint  as a whole must be rejected.

       In Raptakos Brett & Co.Ltd. v. Ganesh Property (1998  (7) SCC 184) it was observed that the averments in the  plaint as a whole have to be seen to find out whether clause  (d) of Rule 11 of Order VII was applicable.  

       There cannot be any compartmentalization, dissection,  segregation and inversions of the language of various  paragraphs in the plaint. If such a course is adopted it  would run counter to the cardinal canon of interpretation  according to which a pleading has to be read as a whole to  ascertain its true import. It is not permissible to cull out  a sentence or a passage and to read it out of the context in  isolation. Although it is the substance and not merely the  form that has to be looked into, the pleading has to be  construed as it stands without addition or subtraction or  words or change of its apparent grammatical sense. The  intention of the party concerned is to be gathered primarily  from the tenor and terms of his pleadings taken as a whole.  At the same time it should be borne in mind that no pedantic  approach should be adopted to defeat justice on hair- splitting technicalities.  

Submission of learned counsel for respondent No.2- trust was that requirement of law being reading the plaint  in its totality, the appellants cannot take the plea that  they would give up or relinquish some of the reliefs sought  for. That would not be permissible. The plea clearly  overlooks the basic distinction between statements of the  facts disclosing cause of action and the reliefs sought for.  The reliefs claimed do not constitute the cause of action.  On the contrary, they constitute the entitlement, if any, on  the basis of pleaded facts. As indicated above, Order VI  Rule 2 requires that pleadings shall contain and contain  only a statement in a concise form of the material facts on  which the party pleading relies for his claim. If the plea  of Mr. Savant, learned counsel for the respondent-trust is  accepted the distinction between the statement of material  facts and the reliance on them for the claim shall be  obliterated. What is required in law is not the piecemeal  reading of the plaint but in its entirety. Whether the  reliefs would be granted on the pleaded facts and the  evidence adduced is totally different from the relief  claimed. All the reliefs claimed may not be allowed to a  party on the pleadings and the evidence adduced. Whether  part of the relief cannot be granted by the Civil Court is a  different matter from saying that because of a combined  claim of reliefs the jurisdiction is ousted or no cause of  action is disclosed. Considering the reliefs claimed vis-a- vis the pleadings would not mean compartmentalization or  segregation, in that sense. The plea raised by the  respondent-trust is therefore clearly unacceptable.   

Keeping in view the aforesaid principles the reliefs  sought for in the suit as quoted supra have to be  considered. The real object of Order VII Rule 11 of the Code  is to keep out of courts irresponsible law suits. Therefore,

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the Order X of the Code is a tool in the hands of the Courts  by resorting to which and by searching examination of the  party in case the Court is prima facie of the view that the  suit is an abuse of the process of the court in the sense  that it is a bogus and irresponsible litigation, the  jurisdiction under Order VII Rule 11 of the Code can be  exercised.  

       As noted supra, the Order VII Rule 11 does not justify  rejection of any particular portion of the plaint. Order VI  Rule 16 of the Code is relevant in this regard. It deals  with ’striking out pleadings’. It has three clauses  permitting the Court at any stage of the proceeding to  strike out or amend any matter in any pleading i.e. (a)  which may be unnecessary, scandalous, frivolous or  vexatious, or, (b) which may tend to prejudice, embarrass or  delay the fair trial of the suit, or, (c) which is otherwise  an abuse of the process of the Court.  

       Order VI Rule 2(1) of the Code states the basic and  cardinal rule of pleadings and declares that the pleading  has to state material facts and not the evidence. It  mandates that every pleading shall contain, and contain  only, a statement in a concise form of the material facts on  which the party pleading relies for his claim or defence, as  the case may be, but not the evidence by which they are to  be proved.  

       There is distinction between ’material facts’ and  ’particulars’. The words ’material facts’ show that the  facts necessary to formulate a complete cause of action  must be stated. Omission of a single material fact leads to  an incomplete cause of action and the statement or plaint  becomes bad. The distinction which has been made between  ’material facts’ and ’particulars’ was brought by Scott,  L.J. in Bruce v. Odhams Press Ltd. (1936) 1 KB 697 in the  following passage :  The cardinal provision in Rule 4 is that the  statement of claim must state the material  facts. The word "material" means necessary  for the purpose of formulating a complete  cause of action; and if any one "material"  statement is omitted, the statement of claim  is bad; it is "demurrable" in the old  phraseology, and in the new is liable to be  "struck out" under R.S.C. Order XXV, Rule 4  (see Philipps v. Philipps ((1878) 4 QBD  127)); or "a further and better statement of  claim" may be ordered under Rule 7.  The function of "particulars" under Rule 6  is quite different. They are not to be used  in order to fill material gaps in a  demurrable statement of claim - gaps which  ought to have been filled by appropriate  statements of the various material facts  which together constitute the plaintiff’s  cause of action. The use of particulars is  intended to meet a further and quite  separate requirement of pleading, imposed in  fairness and justice to the defendant. Their  function is to fill in the picture of the  plaintiff’s cause of action with information  sufficiently detailed to put the defendant  on his guard as to the case he had to meet  and to enable him to prepare for trial.

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The dictum of Scott, L.J. in Bruce case (supra) has been  quoted with approval by this Court in Samant N. Balkrishna  v. George Fernandez (1969 (3) SCC 238), and the distinction  between "material facts" and "particulars" was brought  out in the following terms:   The word ’material’ shows that the facts  necessary to formulate a complete cause of  action must be stated. Omission of a single  material fact leads to an incomplete cause  of action and the statement of claim becomes  bad. The function of particulars is to  present as full a picture of the cause of  action with such further information in  detail as to make the opposite party  understand the case he will have to meet.  

Rule 11 of Order VII lays down an independent remedy made  available to the defendant to challenge the maintainability  of the suit itself, irrespective of his right to contest the  same on merits. The law ostensibly does not contemplate at  any stage when the objections can be raised, and also does  not say in express terms about the filing of a written  statement. Instead, the word ’shall’ is used clearly  implying thereby that it casts a duty on the Court to  perform its obligations in rejecting the plaint when the  same is hit by any of the infirmities provided in the four  clauses of Rule 11, even without intervention of the  defendant. In any event, rejection of the plaint under Rule  11 does not preclude the plaintiffs from presenting a fresh  plaint in terms of Rule 13.  

       According to Mr. Mohta appearing for the appellants, as  noted above, the reliefs are separable and merely because  some of the reliefs cannot be granted by the Civil Court it  would entail an automatic rejection of the old plaint. In  fact he submitted that some of the reliefs would be given up  by the plaintiffs in the suit itself. It is true as  contended by Mr. Savant learned counsel appearing for the  respondent-trust by ingenious drafting a cause of action in  the nature of red herrings cannot be brought into judicial  arena. But a reading of the reliefs shows that some of them  can only be considered by the Civil Court.  

       Under Order II Rule 1 of the Code which contains  provisions of mandatory nature, the requirement is that the  plaintiffs are duty bound to claim the entire relief. The  suit has to be so framed as to afford ground for final  decision upon the subjects in dispute and to prevent further  litigation concerning them. Rule 2 further enjoins on the  plaintiff to include the whole of the claim which the  plaintiff is entitled to make in respect of the cause of  action. If the plaintiff omits to sue or intentionally  relinquishes any portion of his claim, it is not permissible  for him to sue in respect of the portion so omitted or  relinguished afterwards. If the plaintiffs as contended by  Mr. Mohta want to relinquish some reliefs prayer in that  regard shall be done before the trial Court. A reading of  the plaint and the reliefs along with the contents of the  plaint goes to show that the main dispute relates to the  question of continuance of tenancy and the period of  tenancy. They are in essence unrelated with the other  reliefs regarding enquiry into the affairs of the trust.  Such enquiries can only be undertaken under Section 50 of  the Act. For instituting the suit of the nature specified in

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Section 50, prior consent of the Charity Commissioner is  necessary under Section 51. To that extent Mr. Savant is  right that the reliefs relatable to Section 50 would require  a prior consent in terms of Section 51. If the plaintiffs  give up those reliefs claimed in accordance with law, the  question would be whether a cause of action for the residual  claims/reliefs warrant continuance of the suit. The nature  of the dispute is to be resolved by the Civil Court. The  question of tenancy cannot be decided under Section 50 of  the Act. Section 51 is applicable only to suits which are  filed by a person having interest in the trust. A tenant of  the trust does not fall within the category of a person  having an interest in the trust.  Except relief in Para D of  the plaint, the other reliefs could be claimed before and  can be considered and adjudicated by the Civil Courts and  the bar or impediment in Sections 50 and 51 of the Act will  have no relevance or application to the other reliefs. That  being so, Sections 50 and 51 of the Act would not have any  application to that part of the relief which relates to  question of tenancy, the term of tenancy and the period of  tenancy. The inevitable conclusion therefore is that Courts  below were not justified in directing rejection of the  plaint. However, the adjudication in the suit would be  restricted to the question of tenancy, terms of tenancy and  the period of tenancy only. For the rest of the reliefs, the  plaintiffs shall be permitted within a month from today to  make such application as warranted in law for relinquishing  and/or giving up claim for other reliefs.  

       Another plea which has been raised with some amount of  vehemence by the appellant is the alleged forcible  possession. This plea is strongly disputed by learned  counsel for the respondent-trust who says that the  possession was taken in accordance with law and as noted  above, by voluntary surrendering by most of the tenants.  Much of this controversy revolves from the date till the  order of injunction passed by the trial Court operated.  

There are two different sets of principles which have  to be borne in mind regarding course to be adopted in case  of forcible dispossession. Taking up the first aspect, it is  true that where a person is in settled possession of  property, even on the assumption that he has no right to  remain in property, he cannot be disposed by the owner  except by recourse of law.  This principle is laid down in  Section 6 of the Specific Relief Act, 1963. That Section  says that if any person is dispossessed without his consent  from immovable property other wise than in due course of  law, he or any person claiming through him may, by suit,  recover possession thereof, notwithstanding any other title  that may be set up in such suit. That a person without title  but in "settled" possession \026 as against mere fugitive  possession \026 can get back possession if forcibly  dispossessed or rather, if dispossessed otherwise than by  due process of law, has been laid down in several cases.  It  was so held by this Court in Yashwant Singh v. Jagdish Singh  (AIR 1968 SC 620), Krishna Ram Mohate v. Mrs. Shobha Venkata  Rao, (1989 (4) SCC 131,at p.136), Ram Rattan v. State of  U.P. (1977 (1) SCC 188), and State of U.P. v. Maharaja  Dharmender Prasad Singh (1989 (2) SCC 505). The leading  decision quoted in these rulings is the decision of the  Bombay High Court in K.K. Verma v. Union of India (AIR 1954  Bom. 358).

Now the other aspect of the matter needs to be noted.  

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Assuming a trespasser ousted can seek restoration of  possession under Section 6 of the Specific Relief Act, 1963  can the trespasser seek injunction against the true owner?   This question does not entirely depend upon Section 6 of the  Specific Relief Act, but mainly depends upon certain general  principles applicable to the law of injunctions and as to  the scope of the exercise of discretion while granting  injunction? In Mahadeo Savlaram Sheike v. Pune Municipal  Corporation (1995 (3) SCC 33), it was held, after referring  to Woodrofe on "Law relating to injunction; L.C. Goyal ’Law  of injunctions; David Bean ’Injunction’ Jayce on Injunctions  and other leading Articles on the subject that the appellant  who was a trespasser in possession could not seek injunction  against the true owner. In that context this Court quoted  Shiv Kumar Chadha v. MCD (1993 (3) SCC 161) wherein it was  observed that injunction is discretionary and that:

       "Judicial proceedings cannot be used  to protect or to perpetuate a wrong  committed by a person who approaches the  Court".

Reference was also made to Dalpat Kumar v. Prahlad  Singh (1992 (1) SCC 719) in regard to the meaning of the  words ’prima facie case’ and ’balance of convenience’ and  observed in Mahadeo’s case (supra) that:

       "It is settled law that no injunction  could be granted against the owner at the  instance of a person in unlawful  possession."               

       The question of forcible possession as claimed is also  a matter which can be pressed into service by the parties  before the trial Court and if raised the Court shall deal  with it considering its relevance to the suit and accept it  or otherwise reject the plea in accordance with law. We do  not think it necessary to express any opinion in that  regard.                        Learned counsel for the respondent-trust has urged with  some amount of vehemence about the conduct of the plaintiffs  in not depositing the arrears of money and the effect of 22  of the tenants out of total 44 tenants surrendering  possession. This is a matter which can be considered in the  trial itself so far as it is relevant. It was submitted by  learned counsel for the trust that in any event the District  Court was the only Court having jurisdiction and not the  Court where the suit was filed. This aspect does not appear  to have been specifically urged before the Courts below. So  we do not think it appropriate to express our opinion  thereon.  As regards the question of arrears it shall be  open to the respondent-trust to move the trial Court for  such directions as are available in law. Looking into the  nature of dispute it would be appropriate if the trial Court  makes an effort to complete the trial within six months from  the date of the judgment. The parties are directed to  cooperate for disposal of the suit early within the  stipulated time. The appeal is allowed to the extent  indicated without any order as to costs.  

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