Uttarakhand High CourtMohd Ramzan vs Mohd Sammi And Another on 22 March, 2016Author:U.C. DhyaniBench:U.C. DhyaniIN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

           Writ Petition (M/S) No. 734 of 2016
         (UnderArticle 227of the Constitution of India)



Mohd. Ramzan                                 .............       Petitioner

                                  versus


Mohd. Sammi and another                    ........        Respondents

                         --------------------------



Mr. Birendra Singh Adhikari, Advocate, present for the writ petitioner.



U. C. Dhyani, J. (Oral)By    means       of    present    writ    petition,     the
petitioner seeks to:"Quash the impugned order dated 16.02.2016
   passed in Civil Revision No. 98/15 (Annexure -4) as well as
   order dated 01.09.2015, passed by the Civil Judge (J.D.),
   Dehradun passed in Original Suit No. 199/2014, 'Mohd.
   Sami vs. Ramzan (Annexure-3)."On the basis of pleadings of the parties an
issue was framed by the Trial Court as follows:"Whether the suit is barred byOrder 7 Rule 11
      C.P.C.?"The only contention of the defendant before the
Trial Court was that the plaintiff has not filed any2document       to    show     from       where      the    plaintiff's
grandmother Smt. Asgari Jahan Begum obtained a
right to execute the Will in favour of the plaintiff ?
Admittedly, the Will has been brought on record of the
Trial Court. The documents have also been filed to
show that plaintiff's grandmother has been recorded in
the Municipal records. The contention of the defendant
was that the grandmother of the plaintiff had no right
to execute the Will, inasmuch as, she was not the
owner of the property in question. The said issue ofOrder 7 Rule 11 C.P.C. was decided by the Trial Court
in favour of the plaintiff. Aggrieved against the same, a
Civil Revision was preferred by the defendant. The
revisional court did not interfere in the order passed
by the Trial Court. Aggrieved against the same, present
Writ    Petition    has    been       filed   by   the    defendant-
petitioner.The scope of rejection of plaint has been given inOrder 7 Rule 11 C.P.C. The same is being reproduced
herein below for convenience:"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 supply3the 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 for
     correcting the valuation or the requisite stamp-papers, as the
     case may be, within the time fixed by the curt and that
     refusal to extend such time would cause grave injustice to
     the plaintiff."It is not a case in which the plaint does not
disclose the cause of action. A case of under valuation
and court fee is not before this Court. It is also not a
case of insufficiency of payment of court fee. It is also
not a case before this Court that the plaint is barred
by any law. Further, it is also not within the ambit of
non-compliance ofRule 9 C.P.C. and is, therefore, not
covered byOrder 7 Rule 11 C.P.C. so as to reject the
plaint.Learned counsel for the petitioner placed a
judgment rendered by Hon'ble Supreme Court in
Rajnarain Sarin(dead) through Lrs.And others vs.
Laxmi Devi and others, reported in (2002) 10
Supreme Court Case 501, relevant portion of which
is being reproduced herein below for convenience:"If on a meaningful reading of the plaint, it
   manifestly appears to be vexatious and meritless, in4the sense of not disclosing a clear right to sue, the
   trial court should exercise its power underOrder 7
   Rule 11 of the Code of Civil Proceduretaking care
   to see that the ground mentioned therein is fulfilled
   since bogus litigation ought to be shot down at the
   earliest stage."As has been discussed above, in the instant
case, the plaintiff has disclosed a clear right to sue
and, therefore, Rajnarain Sarin vs. Laxmi Devi's
decision (supra) is not applicable to the facts of this
case.Further, learned counsel for the petitioner also
drew attention of this Court towards para 12 ofSopan
Sukhdeo Sable and others vs. Assistant Charity
Commissioner and others, reported in (2004) 3
Supreme Court Cases 137. Said para is being
reproduced herein below for reference:"12. The trial court must remember that if on a
   meaningful and not formal reading of the plaint it is
   manifestly vexatious and meritless in the sense of not
   disclosing a clear right to sue, it should exercise the
   power under Order 7 Rule 11 of the Code taking care to
   see that the ground mentioned therein is fulfilled. If
   clever drafting has created the illusion of a cause of
   action, it has to be nipped in the bud at the first hearing
   by examining the party searchingly under Order 10 of
   the Code."Present case does not appear to fall within
the definition of 'Illusion of a cause of action'.
Therefore, the facts ofSopan Sukhdeo Sable and
others vs. Assistant Charity Commissioner and5others' (supra) are distinguishable from the facts of
this case.Writ   Petition,   therefore,   fails   and   is,
accordingly, dismissed at the admission stage.(U.C. Dhyani, J.)
                                              22.03.2016
Kaushal6