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Dismissal summarily is unwarranted

KANDE VENKATESH GUPTA ,
  13 August 2008       Share Bookmark

Court :
Supreme Court
Brief :
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.
Citation :
delivered on 12-08-2008 not yet reported
REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4982 OF 2008
(Arising out of S.L.P. (C) No. 8622 of 2007)



ABDUL GAFUR & ANR. -- APPELLANT (S)


VERSUS


STATE OF UTTARAKHAND & ORS. -- RESPONDENT (S)



JUDGMENT



D.K. JAIN, J.:



Leave granted.


2. This appeal, by special leave, is directed against the

order, dated 29th March, 2007, passed by the High Court of

Uttarakhand in Writ Petition Misc. No.272 of 2007 whereby




1
the two suits filed by the appellants for perpetual injunction

have been dismissed in limine.


3. Facts necessary for the disposal of this appeal are as

follows:


On 2/28th March, 2005, a gazette Notification was issued

under Section 4 of the Land Acquisition Act, 1894 (for short

`the Act') for acquiring 0.6900 Hec. of land belonging to one

Tek Chand, respondent No.4 herein, for construction of

approach road for Himalayan Institute Hospital Trust,

Dehradun, respondent No.3 (hereinafter referred to as "the

Hospital"). Tek Chand objected to the said acquisition. In the

meanwhile, on 25th May, 2005, he alienated a part of the said

land in favour of appellants No.1 and 2 by way of gift deeds.

Gazette notification under Section 6 of the Act was published

on 16th June, 2005.


4. On 4th July, 2005, Tek Chand (respondent No.4) preferred a

Writ Petition challenging the validity of Notifications under

Sections 4 and 6 of the Act. It appears that on 27th March,

2006, a clarification was issued by the State Government,


2
respondent No.1, to the effect that the possession of the

passage to the Hospital shall remain with them; the

Government would be making financial contribution in its

construction and the public would be entitled to use the

same. In the affidavit filed on behalf of the Government in

the Writ Petition it was reiterated that the road was not

going to be used exclusively by the Hospital. Ultimately,

the Writ Petition was dismissed. Special Leave Petition filed

by Tek Chand against the said order was also dismissed on

15th September, 2006. Licence deed in respect of the said

land was executed in favour of the Hospital on 16th

November, 2006 and construction of the road commenced

some time in November, 2006.


5. Apprehending that the Hospital was planning to raise a wall

on both sides of the road, obstructing use of the road by the

public at large, including the appellants, the appellants

filed the aforementioned two suits against the Hospital and

Tek Chand for perpetual injunction in the court of Civil

Judge (JD), Dehradun, restraining the Hospital from raising



3
construction of any nature in the said property.

Applications under Order 39, Rules 1 & 2 of the Code of

Civil Procedure, 1908 (for short "the Code") were also filed

for grant of interim injunction.


6. The suits were contested by the Hospital. Taking into

consideration the written statement filed on behalf of the

Hospital and after hearing the parties, the trial court, by

detailed orders, dated 2nd February, 2007, granted

temporary injunction in favour of the appellants and

restrained the Hospital from constructing boundary wall on

both sides of the road in question. Being aggrieved, the

Hospital, filed appeals to the court of District Judge,

Dehradun. Arguments in the appeals were heard and

orders were reserved.


7. During the pendency of the appeals, Tek Chand filed yet

another Writ Petition on 11th March, 2007, inter alia,

alleging that the acquisition was fraudulent. While

entertaining the Writ Petition, exercising its power under

Section 24 of the Code, vide an ex-parte order dated 20th


4
March, 2007, the High Court transferred both the said suits

as well as the civil appeals to itself in order to get the

dispute settled between the parties. In the said order, the

High Court directed that both the lower courts shall give

notices to all the parties in the suit and the appeals,

informing them that the suits and appeals stand

transferred to the High Court and they were required to

appear in person before the Court on 28th March, 2007. On

the said order being communicated to the appellants, they

filed Misc. Application No. 499 of 2007 in the said Writ

Petition seeking recall of order dated 20th March, 2007.


8. When the Writ Petition came up for consideration, on 29th

March, 2007, the High Court dismissed both the suits and

the appeals by passing the following short order:


"We have perused the averments
made in the suits as well as in the
appeals, which are represented by Sri
Neeraj Garg (Advocate).

Since, the question involved is
directly raised in the writ petition and we
are hearing the writ petition, therefore,
the suits as well as appeals pending



5
before the court below are dismissed
accordingly.

Let this writ petition for final
hearing on 03.04.2007. Learned Counsel
for the Respondents may file Counter
Affidavit, if any, by 03.04.2007.

In the meantime, if the Respondents
shall raise any construction that will be
at their own risk."



It is against this order of the High Court that this appeal, by

special leave, has been filed.


9. Mr. Mukul Rohtagi and Mr. P.S. Patwalia, learned senior

counsel appearing on behalf of the appellants submitted

that the High Court has committed a manifest error in

dismissing the suits by a cryptic order without taking into

consideration the nature and the purport of the two suits.

Learned counsel argued that the scope of the Writ Petition

filed by the original owner of the subject land and the suits

filed by the appellants was entirely different inasmuch as in

the suits there is no challenge to the acquisition of the piece

of land as in the case of the Writ Petition. It was pointed



6
out that the relief in the suits is confined to the right of the

appellants to use the public road laid on the acquired land.

On merit, it was strenuously urged that being a public

street, neither the State nor any one claiming under it could

cause any obstruction or hindrance in its user by enclosing

it with the walls. In support of the proposition that the land

having been acquired for construction of a public road, it

could not be leased out for private use, learned counsel

placed reliance on a decision of this Court in Municipal

Board, Manglaur Vs. Sri Mahadeoji Maharaj1 as also on

a decision of the Allahabad High Court in Ram Swarup &

Anr. Vs. Municipal Board, Bulandshahr & Anr.2 It was

also alleged that taking advantage of the time gap between

the dismissal of the suits and ad interim injunction by this

Court, the Hospital has completed the wall on both sides of

the road in a tearing hurry to make the present appeal a

fait accompli. It is, thus, pleaded that the Hospital should

be directed to demolish the wall and restore status quo ante.


1
[1965] 2 S.C.R. 242
2
A.I.R. 1979 ALLAHABAD 361


7
10. Per contra, Mr. Jayant Bhushan, learned senior counsel

appearing on behalf of the Hospital, while candidly

admitting that the manner in which the two suits have been

dismissed by the High Court is totally indefensible,

submitted that said suits were nothing but yet another

attempt by the original owner, respondent No.4 herein, to

somehow retain the control on the acquired land, now a

public road, as it would enhance the value of his remaining

land on both sides of the road. Learned counsel was at

pains to assert that the land on both sides of the road was

proposed to be developed by respondent No.4 as a

commercial venture in connivance with the appellants. It

was argued that if the road is used as a thoroughfare, the

very purpose of acquisition of land for providing free and

smooth passage to those visiting the Hospital, would be

defeated.


11. Mr. V.K. Jain, learned counsel, appearing on behalf of the

State Government, supporting the stand of the Hospital,

submitted that both the suits being meritless, the High



8
Court was justified in dismissing them. To buttress the

submission that vexatious and meaningless litigation

should be closed at the earliest stage, learned counsel

placed reliance on a decision of this Court in T.

Arivandandam Vs. T.V. Satyapal & Anr.3.


12.Thus, the short question for consideration is whether the

High Court was justified in dismissing the two suits on the

sole ground that it was proposing to examine a similar

issue in the Writ Petition preferred by the original owner of

the land?


13. Section 9 of the Code provides that civil court shall have

jurisdiction to try all suits of a civil nature excepting the

suits of which their cognizance is either expressly or

impliedly barred. To put it differently, as per Section 9 of

the Code, in all types of civil disputes, civil courts have

inherent jurisdiction unless a part of that jurisdiction is

carved out from such jurisdiction, expressly or by necessary

implication by any statutory provision and conferred on

3
(1977) 4 SCC 467


9
other Tribunal or Authority. Thus, 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.


14. In Smt. Ganga Bai Vs. Vijay Kumar & Ors.4, this Court

had observed as under:


"There is an inherent right in every
person to bring suit of a civil nature and
unless the suit is barred by statute one
may, at ones peril, bring a suit of one's
choice. It is no answer to a suit,
howsoever frivolous the claim, that the
law confers no such right to sue. A suit
for its maintainability requires no
authority of law and it is enough that no
statute bars the suit."



15. In Dhannalal Vs. Kalawatibai & Ors.5 relying on the

afore-extracted observation in Ganga Bai's case (supra),

this Court had held as follows:


"Plaintiff is dominus litis, that is, master
of, or having dominion over, the case. He
is the person who has carriage and
control of an action. In case of conflict of
jurisdiction the choice ought to lie with
4
(1974) 2 SCC 393
5
(2002) 6 SCC 16


10
the plaintiff to choose the forum best
suited to him unless there be a rule of
law excluding access to a forum of
plaintiff's choice or permitting recourse to
a forum will be opposed to public policy
or will be an abuse of the process of law."



16. 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 de'hors the factual averments

made in the plaint. (See: Church of North India Vs.

Lavajibhai Ratanjibhai & Ors.6)



6
(2005) 10 SCC 760


11
17. Having considered the matter in the light of the afore-stated

legal position, we are of the opinion that the impugned

order cannot be sustained. It is true that under Section 24

of the Code, 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. It

needs little emphasis that the High Court is competent to

dispose of the suit on preliminary issues, as contemplated

in Order 14 Rule 1 & 2 of the Code, 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 the Code. As a matter of fact,

as observed by V.R. Krishna Iyer, J., in T. Arivandandam

(supra), if on a meaningful - not formal - reading of the

plaint, it is manifestly vexatious, and meritless, in the sense

12
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 Code and not on one's own

whims.


18. In the instant case, as noted above, vide order dated 20th

March, 2007, the High Court transferred the two suits and

the appeals to itself. On being served with a copy of the

said order, the appellants immediately moved an

application for recall of the said order. In the said

application, it was pointed out that in the appeals,

preferred by the Hospital against the interim injunction

granted by the civil judge, argument had been heard by the

district judge and order was to be pronounced on 26th



13
March, 2007 but in the meanwhile on 20th March, 2007, the

High Court passed the order withdrawing the appeals to

itself. When the transferred case came up for consideration

before the High Court on 29th March, 2007, without passing

any order on the application preferred by the appellants for

recall of order dated 20th March, 2007, the High Court

dismissed the suits on the aforenoted ground, namely, the

issues raised in the suits were being examined in the Writ

Petition. We have no hesitation in holding that the

procedure adopted by the High Court is unknown to law.

We are conscious of the fact that the object of filing of the

suits could be a dubious and indirect attempt on the part of

Tek Chand, respondent No.4, to derive some undue

advantage in connivance with the plaintiffs, yet that was no

ground to dismiss the suits summarily in the aforenoted

manner. It must be kept in mind that 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. A mere

entertainment of the Writ Petition, to which the appellants

14
herein were not parties, even if it involved determination of

similar issues, in our opinion, was not a good ground to

dismiss the two suits without granting opportunity to the

parties to prove their respective stands. Moreover, the

scope of the Writ Petition and the two suits also seems to be

different.


19. On a conspectus of the factual scenario and in view of the

above discussion, the appeal is allowed; the impugned

order, dated 29th March, 2007, is set aside and the two

suits and the appeal, dismissed in terms of the said order,

are restored to the file of the High Court for fresh

adjudication and disposal in accordance with law. The

High Court may also pass appropriate orders on the

appellant's prayer for restitution, for which purpose I.A.

No.7 of 2007 shall stand transferred to the High Court. We

may clarify that we have not expressed any opinion on the

merits of the two suits or the appeals, which shall be

considered and disposed of on their own merits,

uninfluenced by any observation in this judgment.



15
20. In the facts and circumstances of the case, the parties will

bear their own costs.




.................................................J.
(C.K. THAKKER)



.................................................J.
(D.K. JAIN)
NEW DELHI;
AUGUST 11, 2008.




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