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
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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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