Kanhiya vs Gauri and Others

Devinder Gupta, J.—The Defendant-Appellant has preferred this appeal against the judgment and decree passed on 14th September, 1979 by the Additional District Judge, Mandi allowing the appeal of Plaintiffs/Respondents and thereby reversing the judgment of the Subordinate Judge, Sunder nagar dated 31st of May, 1976.

On 27th February, 1973, a suit was instituted by the Plaintiffs/Respondents seeking a decree for mandatory injunction directing Defendant Appellant to close the water channel taken by him from his Gharat located in Khasra No. 217 to his second Gharat located in Khasra No. 177 due to which it was alleged that flow of water to the Gharat of Plaintiffs located in Khasra No. 33 which was alleged to have been available since the last 14 years had stopped since 19th June, 1972 and the prayer was made for directing the Defendant to restore the same in its original condition and further restraining the Defendant not to stop the flow of water coming to the Gharat of the Plaintiffs and for recovery of damages suffered by the Plaintiffs due to the acts of Defendant.

Suit was contested by the Defendant who denied that the Plaintiffs had acquired any right in the water of the water channel feeding his two Gharats which the Defendant had alleged to be in existence for the last 16 years and it was denied that Gharat of Plaintiffs was being fed with water of water channel in question for the last 14 years. It was specifically pleaded that the Plaintiffs had no cause of action.

The trial court dismissed the suit. In appeal the lower appellate court set aside the judgment and decree of the trial court and granted decree in favour of the Plaintiffs of permanent prohibitory injunction restraining the Defendant from stopping the flow of water to water channel which runs the Gharat of Plaintiffs located in Khasra No. 33 (wrongly stated as Kliasra No. 133) and also proceeded to pass a decree of Rs. 1,000/- by way of damages.

I have heard the learned Counsel for the parties. It has been argued on behalf of the Defendant-Appellant that despite the fact that an objection had been raised before the lower appellate court that the Plaintiffs had not pleaded any right on which they had come to the court and as such they had no cause of action, the lower appellate court despite noticing this contention on his behalf failed to record any finding. It has been urged that in fact the plaint ought to have been rejected as it discloses no cause of action. In the plaint, it has not been pleaded as to what is the basis of their claim. Neither the Plaintiffs alleged to have acquired any right by way of prescription nor have they claimed any grant or custom and as such the plaint discloses no cause of action and the same ought to have been rejected. Reliance has been placed upon Kiran Chandra Pramanik Vs. Purna Chandra Pramanik and Others, that the plaint which discloses no cause of action can be rejected at any stage of the proceedings may be even at the stage of second appeal.

I have gone through the plaint. The Plaintiffs have alleged that their Gharat located in Khasra No. 33 was being run for the last 14 years with the help of the water of Khud Kiargi and the Gharat of Defendant located in Khasra No. 217 was also being run with the water of this water channel. Since 19th June, 1972, the Defendant had by diverting the flow of water of water channel started running his another Gharat located in Khasra No. 177 due to which no water is available to the Plaintiffs'' Gharat and due to this, the Plaintiffs have suffered damages. It has been alleged that the Defendant had no right to divert the flow of water. Cause of action was stated to have arisen on 19th June, 1972 on the date of alleged diversion of water. From the entire reading of the plaint, it will be found that neither the Plaintiffs have based the plaint on any custom or on the basis of any grant. Even there is no averment of claiming any right of easement by prescription. It was necessary for the Plaintiffs to specifically allege in the plaint the basis of their right. In the absence of any pleading about the assertion of their right, it can be said that the plaint disclosed no cause of action. To find out as to whether the plaint discloses a cause of action or not, the court has to look into the allegations in the plaint, assuming that to be true for the time being and see whether such allegations in the plaint discloses a cause of action. A suit is always based on the cause of action. There can be no suit without a cause of action. 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 assert a right in the Plaintiff and some act done by Defendant to infringe the same, in the absence of which no cause of action can be said to have possibly accrued. Merely, alleging that the Plaintiffs were getting water to their Gharat for the last 14 years from a water channel and there is diversion of the said water due to the acts of Defendant, without alleging any more, will not amount to the plaint disclosing any cause of action. The Plaintiffs cannot be said to have acquired any right to easement by prescription as there is no allegation that user of the water of the water channel was as of right continuously for a period of more than 20 years plus 2 years prior to the institution of the suit. There is no assertion of any grant or any custom. As such, the plaint disclosed no cause of action and it ought to have been rejected. Without going into the merits of the case and without going into the evidence adduced by the Defendant, I hold that the plaint discloses no cause of action.

The provisions of Order 7 Rule 11 of the CPC are mandatory in nature; there is no bar that a plaint cannot be rejected at the appellate stage when it discloses no cause of action.

Accordingly, the appeal is allowed. The judgments and decrees passed by both the courts below are set aside. The plaint is rejected under Order 7 Rule 11 of the CPC disclosing no cause of action. The parties are left to bear their own costs.