Abdul Gafur & Anr. V/s State Of Uttarakhand & Ors.

Information Type: Judicial Information
Court: Supreme Court
Date of Judgment(s): 2008-08-11
Case No: 4982 of 2008
Case Type: Appeal (Civil)
Judge Name: C.K. Thakker & D.K.Jain
Subject: Civil Law
Statutes / Acts: Code of Civil Procedure (CPC), 1908
Bench Strength: Double Bench
State of Appellant(s): Uttar Pradesh
History of Case No: Order, dated 29 th March, 2007, passed by the High Court of Uttarakhand in Writ Petition Misc. No.272 of 2007
Equal Citation Details :

2008(11 )SCR1142,2008(10 )SCC97 ,2008(11 )SCALE263 ,

Case Note / Description :

the law confers on every person an inherent right to bring a suit of civil nature of one's choice, at one's peril, howsoever frivolous the claim may be, unless it is barred by a statute. [Para 13] [1150 E-G] Smt. Ganga Bai v. Vijay Kumar & Ors. (1974) 2 SCC 393 and Dhannalal v Kalawatibai and Ors. (2002) 6 SCC 16 - relied on. 1.2. 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 CPC. 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 de'hors the factual averments made in the plaint. [Para 16] [1151-E,F,G] Church of North India v. Lavajibhai Ratanjibhai and Ors. (2005) 10 SCC 760 - relied on. 1.3. Under s.24 of CPC, the High Court has jurisdiction to suo motu withdraw a suit or appeal, pending in any court subordinate to it, to its file and adjudicate itself on the issues involved therein and dispose of the same. Unless the High Court decides to transfer the suit or the appeal, as the case may be, to some other court or the same court, it is obliged to try, adjudicate and dispose of the same. The High Court is competent to dispose of the suit on preliminary issues, as contemplated in Order 14 Rule 1 and 2 of CPC, which may include the issues with regard to maintainability of the suit. If the High Court is convinced that the plaint read as a whole does not disclose any cause of action, it may reject the plaint in terms of Order 7 Rule 11 of CPC. [Para 17] [1151-51 H,A,B,C] 1.4. 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, the court should exercise its power - under the said provision. And if clever drafting has created an illusion of a cause of action, it should be nipped in the bud at the first hearing by examining the party searchingly under Order X CPC. Nonetheless, the fact remains that the suit has to be disposed of either by the High Court or by the courts subordinate to it in a meaningful manner as per the procedure prescribed in the CPC and not on one's own whims. [Para 17] [1152 C-E] T. Arivandandam v. T.V. Satyapal and ANOTHER (1977) 4 SCC 467 - relied on. 2.1 In the instant case, when the transferred suits and the appeals came up for consideration before the High Court, it, without passing any order on the application preferred by the appellants for recall of the ex-parte transfer order, dismissed the suits on the ground that the issues raised in the suits were being examined in the writ petition. The procedure adopted by the High Court is unknown to law. The object of filing of the suits could be a dubious and indirect attempt on the part of respondent No.4, to derive some undue advantage in connivance with the appellants, yet that was no ground to dismiss the suits summarily in the aforenoted manner. [Para 18] [1152,F,G,H, 1153 AB] 2.2 One of the fundamental norms of judicial process is that arguable questions either legal or factual, should not be summarily dismissed without recording a reasoned order. Mere entertaining of the writ petition, to which the appellants were not parties, even if it involved determination of similar issues was not a good ground to dismiss the two suits without granting opportunity to the parties to prove their respective stands.

 
 
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