B.S. Saxena vs Arunima Kumari and Others

Sanju Panda, J.—This civil revision is directed against the Order Dated 20th April, 2005 passed by the Learned Addl. District Judge (F.T.C No. III), Bhubaneswar in M.S. No. 3/198 of 2005/2004 rejecting the application filed by the Defendants under Order 7 Rule 11 (a) & (c) of the CPC read with Section 7(i) of the Orissa Court Fees Act for rejection of the plaint.

The facts, as narrated in the application, are as follows: The present Opposite Parties as Plaintiffs filed C.S. No. 198 of 2004 in the Court of Learned Civil Judge (Senior Division), Bhubaneswar for realization of damages of Rs. 51,80,000 (rupees fifty one lakh eighty thousand) from the Defendants within a specified period & in default to pay the amount, interest & cost with pendente lite & future interest as per the bank''s rate. In the plaint, they alleged that in pursuance of matrimonial column published on 6.10.2002 in the English daily "The Times of India" inviting proposal for marriage of Plaintiff No. 1, Defendant No. 1 proposed for marriage of his son with Plaintiff No. 1. The father & brother of Plaintiff No. 1 came to Lucknow, the place of the Defendants for negotiation. The Plaintiffs further alleged that the marriage was settled with Defendant No. 2 & it was decided that the marriage would take place at Lucknow, While the matter stood thus, Defendant No. 2 gave a telephonic message that he had decided to marry an American citizen. Feeling aggrieved by the said refusal of Defendant No. 2 to marry Plaintiff No. 1, the present suit has been filed. The Petitioners have filed a copy of the plaint as Annexure-1 to this revision application. Since the Plaintiffs are women, they were exempted from paying the Court fees as per Section 35 of the Courts Fees Act. Notice was issued to the Defendants. They appeared & filed their written statement as well as an application on 13.9.2004 under Order 7 Rule 11(a)(c) of the CPC read with Section 7(i) of the Orissa Court fees Act before the Trial Court. The Plaintiffs filed their objection to the said application. Thereafter, the matter was transferred to the Court of Learned Addl. District Judge (FTC No. III), Bhubaneswar where it was registered as M.S. No. 3/1998 of 2005/2004. The Court below afresh considering the said application & the objection, rejected the Defendants'' application on 20.4.2005 on the ground that the cause of action is a bundle of facts which gives rise to the suit. Correctness of the different facts & dates of cause of action stated by the Plaintiffs, though denied by the Defendants, can be seen only during trial of the suit. As regards non-payment of Court fees, since the Plaintiffs are women they were exempted from paying the Court fees.

3.The Learned Counsel appearing for Defendant No. 1-Petitioner submitted that the plaint & its averments dearly reflect that Defendant No. 1 proposed, pursuant to the advertisement made in the matrimonial column of the Times of India, for marriage of his son. The Defendants are staying at Lucknow, & both the parties discussed the matter at Lucknow. The Plaintiff No. 1''s father & brother came to that place & letter of correspondences were made by the Defendants & the proposal was at negotiation stage & nothing was fixed. Further the Plaintiff No. 1''s father send a notice to the Defendants claiming damages of Rs. 1 lakh as the proposal could not be materialized. Therefore, to avoid payment of Court fees, the father of Plaintiff No. 1''s set up the present Plaintiffs to file the suit. No cause of action arises for the said suit as in Hindu Law negotiation of marriage is not a contract between the parties. Therefore, the correspondences made between the parties either for proposal of marriage or decision for settlement of marriage cannot be construed as a contract between the parties & breach thereof cannot inflict any legal injury nor can give rise to a legal right to be enforced under the common law forum. The Court below did not consider the said aspect & only going through the plaint rejected the application on the ground that the cause of action is a bundle of facts which can be taken into consideration during the trial. Since the rejection of the application of the Defendants under Order 7 Rule 11 amounts to final disposal of the suit itself, this Court in exercise of the jurisdiction u/s 115 of the CPC should interfere with the impugned order.

The Learned Counsel appearing for the Plaintiffs-Opposite Parties vehemently argued that the Plaintiffs being women were exempted from payment of Court fees & as the cause of action arose at Bhubaneswar, the Court below rightly rejected the application of the Defendants. Therefore, the impugned order should not be interfered with.

From the above rival submissions of the Learned Counsel for the parties, this Court has to decide whether the Court below rightly rejected the application filed by the Defendants under Order 7 Rule 11 of the CPC or whether it exercised its jurisdiction with material irregularity which needs to be interfered with in exercise of the revisional power of this Court.

The Apex Court in the case of Saleem Bhai and Others Vs. State of Maharashtra and Others, has held that the relevant facts which need to be looked into for deciding an application under Order 7 Rule 11 of the CPC are the averments in the plaint. The Trial Court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit i.e. before registering the plaint or after issuing summons to the Defendants at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) & (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane, the pleas taken by the Defendant in the written statement would be wholly irrelevant at that stage.

In the present case, since the Trial Court did not consider any of the averments made in the plaint, this Court sets aside the impugned Order Dated 20th April, 2005 passed by the Learned Addl. District Judge (F.T.C No. III), Bhubaneswar in M.S. No. 3/198 of 2005/2004 & remits the matter to it to examine the same in the light of the observations made by the Apex Court in the case of Saleem Bhai (supra).

The civil revision is accordingly allowed. No costs.