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TMI Blog2010 (10) TMI 1163X X X X Extracts X X X X X X X X Extracts X X X X ..... endants 1 and 2. The third prayer in the suit was that the defendant No. 2 be directed to hand over the possession of the property to plaintiff. The fourth prayer in the suit, was that defendant No. 2 be restrained from transferring or alienating the property by sale, mortgage or gift in any manner. 2. The plaintiff in the said suit submitted an application Exh.5 for interim injunction to restrain the defendant No. 2 from transferring or alienating property by sale, mortgage, gift or otherwise until final disposal of the suit. The learned Judge did not grant any ex parte injunction, but passed the order for issuing notice on 04.02.2002. The defendants appeared in the suit and thereafter, the defendant No. 1 submitted an application for dismissal of the suit being Exh.19 under Order VII, Rule 11 of the Civil Procedure Code. Similarly, the defendant No. 2 also submitted an application for dismissal of the suit being Exh. 23 under Order VII, Rule 11. Both the defendants contended inter alia that the plaintiff is the real brother of defendant No. 1 and a Power of Attorney was also executed in favour of defendant No. 1 and based on such Power of Attorney, the Sale Deeds are executed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint is based on a document filed along with the plaint, it can, however, be considered to ascertain if plaint discloses any cause of action. Cause of action means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. The words cause of action mean 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. What is to be done by the Court at the stage of deciding as to whether the plaint discloses any cause of action or not is to find out from the allegation of the plaint itself as to whether a bogus, wholly vexatious or frivolous litigation is sought to be initiated under the garb of ingenuous drafting of the plaint or not because it is the duty of the Court to guard against the mischief of a litigant misusing the process of court by entering into a false litigation merely for the purpose of harassing the other party and to nip in the bud the litigation which is sham and shabby in character. In order to find out whether the plaint discloses a cause of action or not, the averments made in the plaint and documents annexed theret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court is that the question 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 7, R. 11 of the CPC has to be decided with reference to averments made in the plaint and clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. In view of this decision of the Supreme Court, it is evident that if something purely illusory has been stated with a view to get out of Order 7, Rule 11 of the CPC by resorting to clever drafting, it cannot be said that the plaint discloses a cause of action and if a clear right to sue is not shown in the plaint, it is liable to be rejected. 15. In the light of scope of Order 7, Rule 11(a) of the CPC, we would now proceed to examine different submissions made on behalf of the appellant. The submission that the plaint was presented on December 26, 1978, whereas issues for determination were framed by the learned Judge on July 21, 1981 and therefore the application filed by the respondent under Order 7, Rule 11(a) of the CPC on June 26, 1996 should not have been entertained at such a long dista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which is difficult to comprehend. 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... The abovesaid judgment which related to an election petition is clearly applicable to suits also and was followed in Samar Singh v. Kedar Nath, (AIR 1987 SC 1926). We, therefore, hold that the fact that issues have been framed in the suit cannot come in the way of consideration of this application filed by the appellant under Order 7, Rule 11, CPC. 17. In view of settled legal position, plea that powers under Order 7, Rule 11(a) of the CPC should not have been exercised after framing of issue cannot be upheld and is hereby rejected. (Emphasis supplied) 5. The aforesaid shows that if it is found that the plaint does not disclose the cause of action, the Court has no option but to reject the plaint. But for deciding such aspects of cause of action, the Court should take into consideration the averments made in the plaint for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaint is considered as it, it does not disclose any cause of action for the prayers made in the suit. 8. Mr. Gandhi, learned counsel appearing for the appellant attempted to contend that as the property has been sold away at a very throwaway price by the Power of Attorney holder, i.e. defendant No. 1 in favour of defendant No. 2, the transaction is in collusion and fraudulent. However, Mr. Gandhi, learned counsel for the appellant has not been able to show us any averment in the plaint in support of the said contention. Further, merely because the quantum of consideration is less per se would not result into a ground for setting aside of the sale. 9. Apart from the above, there are no prayers in the plaint for declaration for cancellation of the Power of Attorney nor there is any averment in the plaint that the attorney has misused the fiduciary capacity by giving the material particulars of the alleged misuse. 10. It was contended by the learned counsel appearing for the appellant that the plaint could be amended and even in absence of the amendment in the plaint, the evidence could be led for showing the mode and manner of fraud by giving material particulars. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tarakhand and others, reported in (2008) 10 SCC 97 : (AIR 2009 SC 413) would be relevant. In the said decision, at para 19, it was observed by the Apex Court as under: (Para 16 of AIR) 19. It is trite that the rule of pleadings postulate that a plaint must contain material facts. When the plaint read as a whole does not disclose material facts giving rise to a cause of action which can be entertained by a civil court, it may be rejected in terms of Order 7, Rule 11 of the Code. Similarly, a plea of bar to jurisdiction of a civil court has to be considered having regard to the contentions raised in the plaint. For the said purpose, averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety and the court would not be justified in determining the question, one way or the other, only having regard to the reliefs claimed dehors the factual averments made in the plaint. (See: Church of North India v. Lavajibhai Ratanjibhai (AIR 2005 SC 2544) 14. At this stage, we may refer to the decision of the Apex Court in the case of I.T.C. Limited v. Debts Recovery Appellate Tribunal reported at AIR 1998 SC 634 and more particularly the obser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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