Sunday, 8 September 2019

Whether plaint can be rejected if suit is filed on possibility of infringement of right?

 In the aforesaid background, it is to be held that the plaint does not
disclose any cause of action for the relief prayed, that is, a direction to
the second respondent to execute and register a sale deed in favour of
the first respondent and to put the first respondent in possession. There
does not exist any legal right which the plaintiff or the first respondent is
entitled to invoke and enforce. For a right to exist, there must be a
corelative duty which can be enforced in a law suit. A right cannot exist
without an enforceable duty. Ownership means a bundle of rights which
would normally include the right to exclude and transfer the property in a
manner one wants, subject to contractual obligations as agreed or
statutory restrictions imposed on the owner. In the present case, the
pleadings fail to establish violation of a statutory right or breach of a
contractual obligation which creates an enforceable right in the court of
law. In the absence of any such right or even a claim, the plaint would
not disclose cause of action.
10. This Court in Church of Christ Charitable Trust and Educational
Society Represented by its Chairman v. Ponniamman Educational

Trust Represented by its Chairman/ Managing Trustee1 has referred
to the earlier judgment of this Court in A.B.C. Laminart Pvt. Ltd. and
Another v. A.P. Agencies, Salem2 to explain that the cause of action
means every fact which, if traversed, would be necessary for the plaintiff
to prove in order to seek a decree and relief against the defendant.
Cause of action requires infringement of the right or breach of an
obligation and comprises of all material facts on which the right and
claim for breach is founded, that is, some act done by the defendant to
infringe and violate the right or breach an obligation. In T. Arivandanam
v. T.V. Satyapal and Another3 this Court has held that if the plaint is
manifestly vexatious, meritless and groundless, in the sense that it does
not disclose a clear right to sue, it would be right and proper to exercise
power under Order VII Rule 11 of the Code of Civil Procedure, 1908
(‘Code’, for short). A mere contemplation or possibility that a right may
be infringed without any legitimate basis for that right, would not be
sufficient to hold that the plaint discloses a cause of action.
11. In view of the aforesaid discussion, we would allow the present appeal
and set aside the impugned order. The application under Order VII Rule
11 of the Code filed by the appellant is allowed and the plaint preferred by the first respondent is rejected as it discloses no cause of action.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6760 OF 2019

COLONEL SHRAWAN KUMAR JAIPURIYAR
@ SARWAN KUMAR JAIPURIYAR Vs  KRISHNA NANDAN SINGH 

Dated: SEPTEMBER 02, 2019.


Leave granted.
2. In spite of second call, there is no appearance on behalf of Krishna
Nandan Singh, the plaintiff, the first respondent before us.
3. The first respondent has filed a civil suit T.S. No. 97/16 against Sarwan
Kumar Jaipuriyar, the appellant before us and Anil Kumar, the second
respondent before us. The second respondent is the brother of the first
respondent.
4. The plaint admits that there was amicable division and partition of
property bearing Holding no. 163 old Holding no. 42, Ward No. 10 (New)
7 (Old), Mahal No.1, Mohalla- Mainpura, P.S. Danapur, Patna amongst

respondent no.1, respondent no.2 and their brother Sunil Kumar Mehta.
This partition was evidenced by recording Memorandum of Partition
dated 04.12.2008, which was signed and executed by the three
brothers.
5. The factum of partition and the partition deed itself is not challenged and
questioned in the civil suit preferred by the first respondent. In fact, Sunil
Kumar Mehta, the third brother is not even a party to the suit. The suit
also acknowledges that the second respondent was allotted and became
the owner of south-eastern part of the aforesaid holding whereas the first
respondent stands recorded as the owner of another portion and that the
first respondent and second respondent have been paying taxes for the
respective portions to Nagar Parishad under receipts.
6. The grievance and the cause of action as pleaded in the civil suit by the
first respondent is that the second respondent had sold the portion
allotted to him on partition to the appellant vide registered sale deed
dated 25.01.2016. This sale deed, it is claimed, is void ab initio and
inoperative as there is every chance that the privacy of the first
respondent’s family would be affected and destroyed. It is pleaded that
the first respondent has got a right and authority to repurchase the

portion allotted to the second respondent under the partition evidenced
by the Memorandum of Partition dated 04.12.2008.
7. The Memorandum of Partition dated 04.12.2008 which is placed on
record and an accepted/admitted document does not give any right of
pre-emption to the first respondent. There is also no pleading to the said
effect in the plaint. As the partition and the Memorandum of Partition are
not denied or challenged, ownership of the second respondent and his
right to sell the property in terms of the Memorandum of Partition are
and would be undisputed legal rights under the Transfer of Property Act,
1882. There was no restraint to exercise of this right vested with the
second respondent by contract or under any statute. This is not alleged
and adverted to in the plaint. It is also an undisputed position that Sunil
Kumar Mehta who was on partition allotted the third portion of the
property, has sold and transferred his portion to a third party vide
registered sale deed dated 15.10.2009. The said sale deed is not under
challenge and was not questioned by the first respondent.
8. The aforesaid factual and legal position being admitted and accepted in
the plaint, we fail to understand how and on what basis, the first
respondent claims right of pre-emption or repurchase of the portion that
was allotted to the second respondent in terms of amicable division as
evidenced by Memorandum of Partition dated 04.12.2008. On the

aforesaid partition, the second respondent became the sole and
exclusive owner of the portion allotted to him, a legal position, which is
not even controverted and denied by the first respondent in the plaint.
9. In the aforesaid background, it is to be held that the plaint does not
disclose any cause of action for the relief prayed, that is, a direction to
the second respondent to execute and register a sale deed in favour of
the first respondent and to put the first respondent in possession. There
does not exist any legal right which the plaintiff or the first respondent is
entitled to invoke and enforce. For a right to exist, there must be a
corelative duty which can be enforced in a law suit. A right cannot exist
without an enforceable duty. Ownership means a bundle of rights which
would normally include the right to exclude and transfer the property in a
manner one wants, subject to contractual obligations as agreed or
statutory restrictions imposed on the owner. In the present case, the
pleadings fail to establish violation of a statutory right or breach of a
contractual obligation which creates an enforceable right in the court of
law. In the absence of any such right or even a claim, the plaint would
not disclose cause of action.
10. This Court in Church of Christ Charitable Trust and Educational
Society Represented by its Chairman v. Ponniamman Educational

Trust Represented by its Chairman/ Managing Trustee1 has referred
to the earlier judgment of this Court in A.B.C. Laminart Pvt. Ltd. and
Another v. A.P. Agencies, Salem2 to explain that the cause of action
means every fact which, if traversed, would be necessary for the plaintiff
to prove in order to seek a decree and relief against the defendant.
Cause of action requires infringement of the right or breach of an
obligation and comprises of all material facts on which the right and
claim for breach is founded, that is, some act done by the defendant to
infringe and violate the right or breach an obligation. In T. Arivandanam
v. T.V. Satyapal and Another3 this Court has held that if the plaint is
manifestly vexatious, meritless and groundless, in the sense that it does
not disclose a clear right to sue, it would be right and proper to exercise
power under Order VII Rule 11 of the Code of Civil Procedure, 1908
(‘Code’, for short). A mere contemplation or possibility that a right may
be infringed without any legitimate basis for that right, would not be
sufficient to hold that the plaint discloses a cause of action.
11. In view of the aforesaid discussion, we would allow the present appeal
and set aside the impugned order. The application under Order VII Rule
11 of the Code filed by the appellant is allowed and the plaint preferred
1 (2012) 8 SCC 706
2 (1989) 2 SCC 163
3 (1977) 4 SCC 467

by the first respondent is rejected as it discloses no cause of action.
There shall be no order as to costs.
...............…………………………, J.
(MOHAN M. SHANTANAGOUDAR)
..............…………………………, J.
(SANJIV KHANNA)
NEW DELHI;
SEPTEMBER 02, 2019.


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