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Judgment
Per Sujit Narayan Prasad, J:
Prayer:
The instant application has been filed against order dated 08.04.2022 passed by learned Principal Judge, Family Court, Gumla in Original Suit No. 64 of 2021, by which the suit filed by the appellants against the respondents under Section 7(1)(e) of the Family Court Act for declaration that appellant nos.2 and 3 are natural son and daughter of Saket Kumar Singh has been rejected on the ground that the Court has no territorial jurisdiction to hear the suit and the suit is barred by limitation and defective one.
Factual Aspect
The fact of the case of petitioners, appellants herein, is that the appellants filed the suit for declaration that the appellant no.2 and 3 are natural son and daughter of Late Saket Kumar Singh. It has further been stated therein that in the year 1987-88 while the appellant no.1 was working under Saket Kumar Singh as labourer in digging a pond, the said Saket Kumar Singh proposed to marry her for increasing his lineage as because he had no issue and she was taken her by Saket Kumar Singh to his native village-Bairyadih, P.S. Pipratanr, District-Palamau and kept her as wife and he along with appellant no.1 also used to come at village-Samadari, P.S. Bishunpur, District-Gumla and they were recognized as husband and wife by the villagers. It is further stated that out of their wedlock the appellant no.1 gave birth a male child on 14.10.1990 namely Nilesh Kumar @ Nilesh Dahanga (Appellant No.2) and thereafter a female child also born out of their wedlock namely Khusboo Dahanga (Appellant No.3), who was married at the time of filing the suit.
It is further stated that in the year 1996 Saket Kumar Singh had gone to his native village leaving the appellants but did not return. The appellant no. 1 searched her level best but family of Saket Kumar Singh did not disclose his address. The appellant no.1 however looked after the children (appellant no.2 and 3). In the meantime after few month the respondents sent a message that Saket Kumar Singh died. The appellant had no source of income and there was responsibility of two children as such in compelling circumstances the appellant no.1 come in contact of one Nemu Prakash Dahanga of village-Banari, P.S. Bishunpur, District-Gumla, who supported the appellant no.1 and her children appellant no. 2 and 3 and admitted them in School by giving his name as father of the children as Nemu Prakash Dahanga.
It is further stated that suddenly in the year 2020, the appellants came to know that Saket Kumar Singh father of the appellant no.2 and 3 is alive, then they went to village-Pagar native village of Saket Kumar Singh, where Saket Kumar Singh refused to accept the appellant no.2 and 3 as his son and daughter. Thereafter, on 17.7.2020 the appellant sent a legal notice to Saket Kumar Singh and requested him to accept the appellant no.2 as son, but the same and refused.
Aggrieved thereof, the appellants filed the suit being Original Suit No. 64 of 2021.
The suit was heard on merit on the point of admission and the same was rejected vide order dated 08.04.2022 on the ground that the suit filed by the applicant does not fall within the jurisdiction of this court; has been filed after a delay of 30 years; is riddled with discrepancies; is barred by limitation, and has been instituted with malicious intent. Therefore, the suit is not maintainable.
Being aggrieved with the order dated 08.04.2022 passed by the learned Principal Judge, Family Court in Original Suit No. 64 of 2021, the appellants have approached this Court by filing the instant appeal.
Submission on behalf of appellants:
Learned counsel for the appellants has submitted that the learned family court has erroneously rejected the plaint on the ground that the Court has no territorial jurisdiction ignoring the fact that the suit was filed under Section 7(1)(e) of the Family Court Act for declaration that the appellant nos. 2 and 3 are natural son and daughter of Saket Kumar Singh and appellants and defendants presently resides within the jurisdiction of the learned family court.
So far as the rejection of the plaint/suit on the ground of limitation is concerned, submission has been made that cause of action arose for the first time on 05.07.2020 when said Saket Kumar Singh refused to accept appellant nos. 2 and 3 as his son and daughter.
Submission has been made that specific statement has been made by the appellants in the plaint that in the year 1996 Saket Kumar Singh had gone to his village leaving the appellants and did not return, although thereafter, the appellant no. 1 searched him but family of Saket Kumar Singh did not disclose his address. Later on, the respondents sent a message that said Saket Kumar Singh has died.
It has been submitted that the appellants having no source of income, came in contact of one Nemu Prakash Dahanga who support the appellant and her children and enrolled the children in school by giving his name as father of the children as Nemu Prakash Dahanga.
Submission has been made initially the father‟s name of the appellant no. 2 and 3 was mentioned in the School Register and other places as „Saket Kumar Singh, but, when he became traceless, Nemu Prakash Dhanga, who only was supporting the appellant no. 1 gave his name to use as father though he was not the natural father of the appellant no. 2 and 3.
Submission has been made that the learned family court without considering the provision of Order VII Rule 11 CPC rejected the plaint filed by the appellant and without appreciating the documents as also pleading available on record, which requires interference by this Court.
Submission of behalf of respondents:
Learned counsel for the respondents has submitted that the suit has been dismissed on the ground of lack of jurisdiction; barred by limitation; the appellants‟ case is full of contradictions as would be evident from version made in the plaint and documentary evidence adduced by the appellants.
Submission has been made in Aadhar Card, Matriculation Certificate issued by the Pratap High School, Banari by the Jharkhand Academic Council, the name of father of appellant nos. 2 and 3 has been mentioned as „Nemu Prakash Dahnga‟. It has been submitted that these documents are statutory documents which has got legal sanctity and they are supposed to be valid document for all purposes.
Submission has been made that appellants have based their case on the Baptism Certificate issued on 09.07.2020 issued in favaour of appellant no. 2, namely Nilesh Kumar, which shows his date of birth to be „14.10.1990‟ and religion „Christian‟. It has been submitted that even allegedly the appellant no. 2 born in the year 1990 but for making birth certificate he waited for twenty years to obtain the certificate. Further, no corresponding certificate for appellant no. 3 exists despite the same religion and tradition requiring church registration of births and baptisms.
Further submission has been made that even the date of birth of the appellant no. 2 in the certificates are different. In Matriculation Certificate the date of birth of appellant no. 2 is „14.08.1993‟, which was issued on 02.02.2009; in Aadhar Card of appellant no. 2, the date of birth is mentioned as „13.08.1993‟; in the plaint, the date of birth is mentioned as „14.10.1990‟, which itself shows that appellants‟ case is full of contradictions.
Further submission has been made that appellant no. 1 alleges that she had relationship with said Saket Kumar Singh since 1987-88 and out of their wedlock appellant no. 2 and 3 born in the year 1990 and 1996, but despite such long standing claim, she never initiated any complaint before a civil or criminal court or she did not ever lodge any FIR or police complaint even allegedly when Saket Kumar Singh refused to keep her or recognize her children and waited for her death and only thereafter lodged the suit.
It has been submitted that alleged father [Saket Kumar Signh] has now died and no DNA evidence was ever obtained during his lifetime, so as to assess the claim of the appellants.
It has been submitted that respondents have been made party without having any pleading against them or any cause of action against them, as such even they are not the necessary party in the suit and only in order diminish the image the suit was filed.
Learned counsel for the respondents further submitted that the suit filed by the appellants-petitioners is not only hopelessly barred by law of limitation but also a vexatious and meritless one and considering these facts into consideration the same has been rejected in exercise of power conferred under Rule 7 Order 11 CPC which requires no interference by this Court.
Analysis
Heard learned counsel for the parties and perused the documents available on record as also the finding recorded by learned family court.
This Court before going into the legality and propriety of the impugned order needs to go into the legal position involved in the case.
It is well settled principle of law that the judicial time is precious and ought to be employed in the most efficient manner possible. Sham litigations are one such menace that not only waste the time of the courts, but also cause unwarranted prejudice and harm to parties arrayed as defendants in such litigations, thereby defeating justice.
In order to deal with such a menace, the Code of Civil Procedure, 1908 (“CPC”), under Order VII Rule 11provides litigants the option to pursue an independent and special remedy, empowering courts to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any grounds contained in this provision.
For ready reference, Order VII Rule 11 of the Code of Civil Procedure, 1908 is quoted as under:
“Order VII Rule 11
11. Rejection of plaint.—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;
(c)where the relief claimed 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-papers 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 from correcting the valuation or supplying the requisite stamp-papers, 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.]”
From plain reading of Order VII Rule 11 CPC, it is evident that it describes the circumstances when the plaint filed by the plaintiff is to be rejected without even adducing the evidence. The first criteria/condition is where it does not disclose a cause of action; and the other criteria is 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. The other criteria is where the relief claimed 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. The other criteria when the plaint is to be rejected is where the suit appears from the statement in the plaint to be barred by any law;
Thus, it is evident that that the Court is to see whether the plaint discloses cause of action; and the court has to scrutinise the averments/pleas in the plaint. If the pleading in plaint do not disclose a clear right or material(s) to sue, or creates an illusion of a cause of action by cleaver drafting, court should reject the plaint at first hearing.
Reference in this regard may be made to the judgment rendered by the Hon‟ble Apex Court in the case of Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 706, wherein the Hon‟ble Apex Court taking into consideration the other case laws has reiterated the principle with respect to „cause of action‟; non-joinder of necessary party and other factors while rejecting the suit under Order 7 Rule 11 CPC. For ready reference, the relevant paragraph of the judgment is quoted as under:
“11.This position was explained by this Court in Saleem Bhai v. State of Maharashtra [(2003) 1 SCC 557] , in which, while considering Order 7 Rule 11 of the Code, it was held as under: (SCC p. 560, para 9)
“9.A perusal of Order 7 Rule 11 CPC makes it clear 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 under Order 7 Rule 11 CPC 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 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, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.”
It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [(2006) 3 SCC 100] .
12.It is also useful to refer the judgment in T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467] , wherein while considering the very same provision i.e. Order 7 Rule 11 and the duty of the trial court in considering such application, this Court has reminded the trial Judges with the following observation: (SCC p. 470, para 5)
“5.… The learned Munsif must remember that if on a meaningful—not formal—reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Chapter XI) and must be triggered against them.”
It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order 7 Rule 11. If clever drafting has created the illusion of a cause of action as observed by Krishna Iyer, J. in the abovereferred decision, it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the Code.
Cause of action
13.While scrutinising the plaint averments, it is the bounden duty of the trial court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words “cause of action”. A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue.
14.In A.B.C. Laminart (P) Ltd. v. A.P. Agencies [(1989) 2 SCC 163] , this Court explained the meaning of “cause of action” as follows: (SCC p. 170, para 12)
“12.A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.”
15.It is useful to refer the judgment in Bloom Dekor Ltd. v. Subhash Himatlal Desai [(1994) 6 SCC 322] , wherein a three-Judge Bench of this Court held as under: (SCC p. 328, para 28)
“28.By „cause of action‟ it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court, (Cooke v. Gill [(1873) LR 8 CP 107] ); in other words, a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit.”
It is mandatory that in order to get relief, the plaintiff has to aver all material facts. In other words, it is necessary for the plaintiff to aver and prove in order to succeed in the suit.
In the light of the above discussion, in view of the shortfall in the plaint averments and statutory provisions, namely, Order 7 Rule 11, Rule 14(1) and Rule 14(2), Forms 47 and 48 in Appendix A of the Code which are statutory in nature, we hold that the learned Single Judge of the High Court has correctly concluded that in the absence of any cause of action shown as against the first defendant, the suit cannot be proceeded either for specific performance or for the recovery of money advanced which according to the plaintiff was given to the second defendant in the suit and rightly rejected the plaint as against the first defendant. Unfortunately, the Division Bench failed to consider all those relevant aspects and erroneously reversed the decision of the learned Single Judge. We are unable to agree with the reasoning of the Division Bench of the High Court.
Further, in the case of P.V. Guru Raj Reddy v. P. Neeradha Reddy, (2015) 8 SCC 331 the Hon‟ble Apex Court has observed that while exercising of power under Order 7 Rule 11 CPC, only the averments in plaint have to be read as a whole. For ready reference, the relevant paragraph of the judgment is quoted as under:
“5.Rejection of the plaint under Order 7 Rule 11 of CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7 Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order 7 Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial.”
Further the Hon‟ble Apex Court in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali, (2020) 7 SCC 366 while dealing with the issue with respect to Order 7 Rule 11 CPC has touched all legal aspects involved therein and held that the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision. It has further been held that if no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted. It has been held therein that if on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 CPC. Referring to the Limitation Act, 1963, which prescribes a time-limit for the institution of all suits, appeals, and applications, it has been held that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. Discussing the facts of the case and considering the fact that the suit was filed after the delay of over 5 and ½ years, after the alleged cause of action arose in 2009, it has been held that the plaintiffs have failed to discharge the onus of proof that the suit was filed within the period of limitation, as such the plaint was liable to be rejected under Order 7 Rule 11(d) CPC. and the suit filed by the plaintiffs is clearly an abuse of the process of the court, and bereft of any merit. In view thereof, while dismissing the civil appeal costs of Rs 1,00,000/- was imposed. For ready reference, relevant paragraphs of the judgment is quoted as under:
23.2.The remedy under Order 7 Rule 11 is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.
23.3.The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.
23.4.In Azhar Hussain v. Rajiv Gandhi [Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315. Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH 823] this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words : (SCC p. 324, para 12)
“12.… The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation, the court readily exercises the power to reject a plaint, if it does not disclose any cause of action.”
23.5.The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order 7 Rule 11 are required to be strictly adhered to.
23.6.Under Order 7 Rule 11, a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] , read in conjunction with the documents relied upon, or whether the suit is barred by any law.
23.11.The test for exercising the power under Order 7 Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] which reads as : (SCC p. 562, para 139)
“139.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. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.”
23.12.In Hardesh Ores (P) Ltd. v. Hede & Co. [Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614] the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V. Janakiraman [D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267; See also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941] .
23.13.If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 CPC.
23.14.The power under Order 7 Rule 11 CPC may be exercised by the court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra [Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557] . The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain case [Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315. Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH 823] .
23.15.The provision of Order 7 Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clauses (a) to (e) are made out. If the court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the court has no option, but to reject the plaint.
24.“Cause of action” means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
24.1.In Swamy Atmananda v. Sri Ramakrishna Tapovanam [Swamy Atmananda v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51] this Court held : (SCC p. 60, para 24)
“24.A cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded.”
(emphasis supplied)
24.2.In T. Arivandandam v. T.V. Satyapal [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467] this Court held that while considering an application under Order 7 Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words : (SCC p. 470, para 5)
“5.… The learned Munsif must remember that if on a meaningful—not formal—reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing.…”
(emphasis supplied)
24.3.Subsequently, in ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.
24.4.If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Rama Chandra Murthy v. Syed Jalal [Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174 : (2017) 5 SCC (Civ) 602] held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.
25.The Limitation Act, 1963 prescribes a time-limit for the institution of all suits, appeals, and applications. Section 2(j) defines the expression “period of limitation” to mean the period of limitation prescribed in the Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article.
28.A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh [State of Punjab v. Gurdev Singh, (1991) 4 SCC 1 : 1991 SCC (L&S) 1082] held that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words “right to sue” mean the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted. Order 7 Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected.
29.18.The delay of over 5 and ½ years after the alleged cause of action arose in 2009, shows that the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963. The suit was instituted on 15-12-2014, even though the alleged cause of action arose in 2009, when the last cheque was delivered to the plaintiffs. The plaintiffs have failed to discharge the onus of proof that the suit was filed within the period of limitation. The plaint is therefore, liable to be rejected under Order 7 Rule 11(d) CPC.
30.The present suit filed by the plaintiffs is clearly an abuse of the process of the court, and bereft of any merit. The trial court has rightly exercised the power under Order 7 Rule 11 CPC, by allowing the application filed by Respondents 2 and 3, which was affirmed [Dahiben v. Arvindbhai Kalyanji Bhanusali, 2016 SCC OnLine Guj 10017] by the High Court.
31.In view of the aforesaid discussion, the present civil appeal is dismissed with costs of Rs 1,00,000 payable by the appellant to Respondents 2 and 3, within a period of twelve weeks from the date of this judgment. Pending applications, if any, are accordingly disposed of.
From the case laws, as cited and discussed above, it is abundantly clear that as per settled position of law as provided under Order 7 Rule 11 if any of the grounds as specified in clauses (a) to (e) are made out, the court is bound to reject the plaint.
This Court, on the touchstone of above case laws and provision of law as provided under Order 7 Rule 11, has proceeded to re-advert to the facts of the present case.
It is the case of the petitioners/appellants that in the year 1987-88 while the appellant no.1 was working under Saket Kumar Singh [allegedly died in the year 2020] as labourer in digging a pond, the said Saket Kumar Singh proposed to marry her for increasing his lineage as because he had no issue. It is further case of the appellant that thereafter, said Saket Kumar Singh taken to his native village-Bairyadih, P.S. Pipratanr, District-Palamau and kept her as wife and they were recognized as husband and wife by the villagers. It is further stated that out of their wedlock the appellant no.1 gave birth to a male child on 14.10.1990 namely Nilesh Kumar @ Nilesh Dahanga (Appellant No.2) and thereafter a female child also born out of their wedlock namely Khusboo Dahanga (Appellant No.3) now she has been married.
It is further case of the appellants that in the year 1996 Saket Kumar Singh had gone to his native village but did not return. Thereafter, the appellant no. 1 searched her level best but family of Saket Kumar Singh did not disclose his address, however, later on she came to know that Saket Kumar Singh died.
The appellant no. 1 has further made out the case that since she had no source of income and had responsibility of two children as such in compelling circumstances the appellant no.1 came in contact of Nemu Prakash Dahanga of village-Banari, who supported the appellant no.1 and her children appellant no. 2 and 3 and they were admitted in School by giving his name as father of the children as Nemu Prakash Dahanga.
It is further alleged that suddenly in the year 2020, the appellants came to know that Saket Kumar Singh father of the appellant no.2 and 3 is alive, then they went to village-Pagar native village of Saket Kumar Singh, where Saket Kumar Singh refused to accept the appellant no.2 and 3 as his son and daughter. Thereafter, on 17.7.2020 the appellant sent a legal notice to Saket Kumar Singh and requested him to accept the appellant no.2 as son, but he refused. Aggrieved thereof, the appellants filed the suit being Original Suit No.64 of 2021.
The appellants has stated that cause of action arose in the year 2020 when the said Saket Kumar Singh refused to accept the appellants and only after a year the suit was filed as such submission has been made that there was no inordinate delay in filing the suit.
The learned family court, after discussing the facts as mentioned in the plaint and provision of law as under Order VII Rule 11 CPC held the suit maintainable on the ground of that suit has been filed after inordinate delay of 30 years as such it is time barred and is full of defects and even does not fall within the jurisdiction of the court besides other grounds.
This Court, in the background of above factual aspect and the finding arrived at by the learned Family Court while rejecting the plaint, has to see whether the finding arrived at by the learned family court is erroneous and/or non-consideration of material facts, as available on record.
Admittedly, the suit was filed in the year 2021 whereas the alleged marriage took place in the year 1987 and allegedly thereafter the two children born, the son [appellant no. 2 herein] sometimes in the year 1990 and the second one is daughter born sometimes in the year 1996, who got married before filing of the suit. The petitioner no. 1/appellant no. 1 has stated that later on said Saket Kumar Singh refused to marry by disowning her. The question arises what prevented her to lodge any complaint/FIR in this regard and even after that she waited for years and only after death of the said Saket Kumar Singh in the 2020, she filed the suit claiming herself to be the wife who got married sometimes in the year 1987. The inordinate delay in approaching the court has not been explained by the appellants rather he approached this Court only after death of the said Saket Kumar Singh, against whom the relief has been sought.
In view of the aforesaid fact, if the learned family court has rejected the suit on the ground of limitation holding that the suit is barred by limitation, that cannot be faulted with.
So far as the issue of jurisdiction is concerned, the learned family court called for report from the Siristedar, who reported that petitioner no. 1 and Saket Kumar Singh were last residing at village Samdari under Bishunpur Police Station, District Gumla, which falls within the jurisdiction of the Court but the petitioners have to prove the jurisdiction on the basis of valid documents. The learned family court, after perusal of the Aadhar Card of Petitioner No. 1, 2 and 3, has noted that the name of husband of petitioner no. 1 in Aadhar Card is „Nemu Prakash Dahanga‟ of Vilage and Post-Banari, P.S. Vishunpur, Gumla. Similarly, the name of father of petitioner no. 2 is mentioned as Nemu Prakash Dahanga. Whereas in the plaint name of husband of petitioner has been mentioned as Saket Kumar Singh and father of petitioner no. 2 and 3 is mentioned as Saket Kumar Singh having no documentary basis.
The learned family court, while rejecting the plaint, has further found the plaint full of contradictions.
It is claimed that Saket Kumar Singh is the father of appellant nos. 2 and 3 but in the statutory documents i.e., Aadhar Card and Matriculation Certificate of appellant no. 2, name of father of appellant no. 2 has been mentioned as „Nemu Prakash Dahanga‟. In the Aadhar Card of appellant no. 1, the name of husband has been mentioned as „Nemu Prakash Dahanga‟.
Further submission has been made that even the date of birth of the appellant no. 2 in different certificate is different. In Matriculation Certificate the date of birth of appellant no. 2 is „14.08.1993‟, which was issued on 02.02.2009; in Aadhar Card of appellant no. 2, the date of birth is mentioned as ‟13.08.1993‟; in the plaint, the date of birth is mentioned as ‟14.10.1990‟, which itself shows that appellants‟ case is full of contradictions.
Claim has been made on the Baptism Certificate which was issued on 09.07.2020 in favaour of appellant no. 2, namely Nilesh Kumar, which shows his date of birth to be „14.10.1990‟ and religion „Christian‟. It has been submitted that even allegedly the appellant no. 2 born in the year 1990 but for making birth certificate he waited for twenty years to obtain the certificate. Further, no corresponding certificate for appellant no. 3 exists despite the same religion and tradition requiring church registration of births and baptisms. It casts doubt upon such certificate and shows the intention of the appellants.
So far present respondents are concerned, they have been made party without having any pleading against them or any cause of action against them, as such even they are not the necessary party in the suit and only in order diminish the image the suit was filed.
Further, it would be apt to mention herein that it is settled proposition of law that a civil suit cannot be filed or maintained directly against a dead person. Under the law, a law suit initiated against a deceased individual is a complete nullity from its inception, because a dead person lacks legal personality and cannot be a party to a case. But in the case at hand, it appears that purposely initially the suit was filed mentioning the name of husband of petitioner no. 1 and father of petitioner no. 2 and 3 as „Saket Kumar Singh‟ knowing fully well that he died before filing of the suit and later on i.e., after filing of the suit a petition under Order VI Rule 17of the Code of Civil Procedure has been filed on behalf of petitioners for adding „Late‟ before the name of Saket Kumar Singh.
Furthermore, under common law principles, it is established that a deceased person cannot be defamed. Because defamation requires injury to a living person's active reputation in society, a lawsuit cannot be brought simply to diminish or attack the image or reputation of someone who has already passed away.
The Hon‟ble Apex Court in the case of T. Arivandandam v. T.V. Satyapal [supra] has held that while considering the very same provision i.e. Order 7 Rule 11, the duty of the trial court must remember that if on a meaningful—not formal—reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing.
In the case at hand, taking into consideration the facts, as discussed above, the learned family court taking note the issue of suit being barred by limitation; suit is riddled with contradictions; the contradictions in the plaint and documentary evidence as also the fact that the said Saket Kumar Singh has died, has dismissed the suit that cannot be faulted with.
Accordingly, the instant appeal lacks merit is dismissed.
Pending Interlocutory Application, if any, stands disposed of.