Woodland Manufacturers Limited vs Sankar Prosad Garga & Ors.

In a suit for partition, the defendants have filed an application for rejection of the plaint on the ground that the plaint does not disclose a cause of action

and is barred by law. Mr. Ahin Chowdhury, learned senior counsel appearing on behalf of the applicants submits that a bare reading of the plaint

would not show that the plaintiff does not have a cause of action against the defendants inasmuch as having regard to the decrees passed earlier in the

suits filed by the parties, the present suit is barred by res judicata. In order to appreciate the said argument, it is necessary to refer to some of the facts

stated in the plaint.

The plaintiff filed the instant suit, which is in the nature of a partition suit. The plaintiff claims to be a co-owner of the property and has prayed for the

preliminary decree declaring the respective shares of the plaintiff and the defendant nos. 1 and 2 in Lot Nos. 1, 2 and 3 at the suit premises with

further prayer for final decree and rendition of accounts. In the plaint, the plaintiff has referred to the earlier suits filed by and between the parties,

three of which were filed by the plaintiff and two by the defendants. The earlier three suits of the plaintiff consist of two suits for specific

performance and one for partition. In the plaint, it is stated that in the earlier proceedings, the application filed by Sankar Prosad Garga under Section 4

of the Partition Act, 1893 was disposed of with the direction that the present plaintiff would transfer and convey all its right, title and interest over and

in respect of the suit property to Sankar at and for a consideration to be determined by the Registrar of Assurance whose decision shall be final and

Shankar should make an application before the Registrar of Assurance within 7 days, with further directions that within a fortnight from the date of

receipt of communication of the market value of the suit property on the date of the application of Shankar under Section 4 of the Partition Act, 1893

from the Registrar of Assurance, Kolkata, Shankar would indicate the decision to the advocate for the plaintiff and would, simultaneously with the

communication of the decision of the Registrar, forward the conveyance required to be executed by Woodland for transfer of its right, title and interest

in respect of the property in question in favour of Shankar.

The plaintiff alleged that upon enquiries in the office of the Registrar of Assurance, the plaintiff came to learn that the advocate of the defendant no.1

in terms of the judgment dated 12th September 2014 had applied before the Registrar of Assurance, Kolkata on 17th September 2014 for obtaining a

market value of the suit premises. Since the plaintiff did not receive any communication, the advocate on record of the plaintiff, by letter dated 3rd

February 2017 addressed to the defendant no.1 and also to his advocate, requested for a copy of the application made on behalf of defendant no.1 to

the Registrar of Assurance, Kolkata. There being no response, the plaintiff made a request before the concerned Estate Public Information Officer

under Section 6 of the Right to Information Act, 2005 and pursuant to such communication, on or about 17th May 2017, the Registrar of Assurance,

Kolkata made over a copy of the letter dated 20th April 2017 addressing Rajesh Poddar, a director of the plaintiff, whereby the said authority declined

to furnish the information sought by the aforesaid letter. In a writ application filed before this Court against such refusal, an order was passed on 24th

July 2017 by which the registering authority was directed to complete the valuation within a fortnight and intimate the respective parties the valuation

immediately thereafter. Pursuant thereto, the Registrar of Assurance submitted its report on the market value of the suit property.

 The plaintiff alleged that notwithstanding such communication, the defendant no.1 did not pay the consideration amount as required to be paid under

the decree and, as such, has forfeited its right and the suit for preemption filed earlier would automatically stand dismissed. The defendant no.1 did not

act in terms of the earlier decree. Subsequently, it had come to the knowledge of the plaintiff that the defendants executed a deed of gift dated 28th

March 2017 and had thereby purported to make a gift of a demarcated plot of land measuring 6 cottahs, 14 chhitaks and 0 square feet together with

structure having an area of 3000 sq.ft. standing thereon in favour of the defendant no.2.

The plaintiff contends that as crystallized by the decree passed in the earlier proceedings, the plaintiff owns an undivided half share in Lot Nos. 1 and

3 of the suit premises and an undivided 3/4th share in Lot No. 2 thereof and the defendants are obstructing the plaintiff in enjoyment of the lots and

realizing the entirety of the rents, issues and profits thereon. It has now become necessary for the plaintiff to file the instant suit for a preliminary

decree along with the other consequential reliefs.

Both the plaintiff and the defendants have relied upon the earlier proceedings to justify their respective claims. In an application for rejection of the

plaint, the court is not required to scrutinize any evidence that the parties intend to rely for the purpose of finding out if the plaintiff has a cause of

action. There is a distinction between the plaint not disclosing a cause of action and the plaintiff has no cause of action. The plaint while is demurrable

for the non-disclosure of a cause of action is not liable to be rejected on the later.

The plaint must conform to Order 7 Rule 1 of the Code of Civil Procedure. It is essential that a plaint must disclose a cause of action and a statement

to that effect that it is not barred by limitation. The cause of action is essentially a bundle of facts to be stated in the plaint which if prove at the trial

would result in a decree being passed in favour of the plaintiff.

In (1988) QBD 128, Lord Esher M.R., defined “cause of action†to mean “every fact which it would be necessary for the plaintiff to prove, if

traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each

fact, but every fact which is necessary to be proved.â€​

Fry L.J., agreed and said :-

“Everything which, if not proved, gives the defendant an immediate right to judgment must be part of the cause of action.â€​

 There is no distinction between a plant not disclosing a cause of action and the plaintiff has no cause of action to sue. A decision as to whether the

plaint discloses no cause of action the Court is required to read the plaint in a meaningful manner and take the averments in the plaint to be correct.

The plaintiff may have a cause of action which ultimately may not succeed that is not the consideration on which the plaint is to be rejected at the

initial stage.

To put it in a concise form, the words “cause of action†means the whole bundle of material facts which are necessary for the plaintiff to prove,

in order to entitle him to the reliefs claimed in the suit. Order 7 Rule 1 requires the plaintiff to incorporate in the plaint the facts constituting the cause

of action. The plaintiff is required to plead all material facts upon which his right to relief is based and from which court can arrive at a conclusion in

his favour. Such “cause of action†generally means a situation or state of facts that entitles a party to maintain an action in court, the material

facts imperative for claimant to allege and prove, constitute cause of action that helps plaintiff to obtain decree. The phrase ‘does not disclose cause

of action’ as used in Order 7 Rule 11(a) has to be narrowly construed. The distinction between non-existence of a cause of action and non-

disclosure of cause of action has been discussed in State of Orissa v. Kolckna Company Ltd. reported at (1996) 8 SCC 377.

Under Order 7 Rule 11(a), the plaint shall be rejected 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 plea that there is no cause of action for the suit is not same as to say the plaint does not

disclose any cause of action, which is a ground for rejection of the plaint. The correctness or otherwise of the allegations constituting the cause of

action is beyond the purview of Clause (a) of Order 7 Rule 11. (see British Airways vs. Art Works Export Ltd. & Anr. reported at AIR 1986 Cal

120).

This power of rejection of plaint ought to be used only when court is absolutely sure that the plaintiff does not have an arguable case at all. If on a true

and meaningful reading of the plaint it appears that the plaintiff has a cause of action irrespective of the result of the suit, the plaint cannot be rejected.

Whether the suit is barred by res jdicata or otherwise is a matter of evidence to be established at the trial. On the basis of the averments made in the

plaint, it cannot be said that the plaint does not disclose any cause of action. Whether the plaintiff would ultimately succeed at such a cause of action is

not for the court to decide at this stage.

In deciding an application of this nature the court is not supposed to assess as to whether the plaintiff would be ultimately able to prove its case. For

the purpose of assessing whether the plaint disclosed a cause of action against the defendants, the averments in the plaint had to be accepted as

correct. The interpretation of the earlier judgments and nature of such proceedings and its effect on the present suit cannot form the basis of an

application under Order 7 Rule 1(d).

Considering the nature of the dispute between the parties it is apparent that Order 7 Rule 11(d) which provides that plaint can be rejected in a case

where the suit appears from the statement in the plaint to be barred by law could not be applied as there is no bar to the suit under the provisions of

any law. The plea or res judicata is a plea in defence to be substantiated at the trial. Under such circumstances, GA No. 114 of 2018 stands

dismissed. However, there shall be no order as to costs. The defendants shall file their written statement within four weeks from date. The said

directions are peremptory.