& Ors Vs. Ratanlal  INSC 19 (30 January 1990)
Jagdish Saran (J) Verma, Jagdish Saran (J) Kania, M.H.
1990 SCR (1) 172 1990 SCC (2) 42 JT 1990 (3) 68 1990 SCALE (1)279
of Civil Procedure: Order 7 Rules 11 and Order 23 Rule 3A--Maintainability Of
suit--Issuance of summons by trial court-Whether a bar to trial when no triable
issue is shown to arise.
who owned Goyal Talkies entered into a partnership with respondent Ratanlal
representing the joint family firm of M/s. Ratanlal Damdoolal and Bros., for
the purpose of running the cinema business. Later, the said Motilal together
with his wife and children filed a civil suit for dissolution of partnership,
rendition of accounts, etc., against respondent Ratanlal, as defendant No. 1,
the firm "M/s Damdoolal and Bros." as defendant No. 2, and one Puranmal
as defendant No. 3. Motilal subsequently filed an application for correction of
the description of defendant No. 2 firm, which was allowed.
suit was compromised. According to one of the terms of the compromise,
plaintiff was to pay to defendant Nos.1 and 2 a sum of Rs.15,700 in full
satisfaction of their claim, subject to final accounting. The plaintiff paid
this sum within the specified period and thereupon the receiver gave
possession. Subsequently, the Court passed a final decree dated 16.11.1959
stating that the partnership stood dissolved, and directing defendant Nos. 1
and 2 to refund to the plaintiff the amount of Rs.5,470 which was the excess
amount paid by the plaintiff to them. Defendant Nos. 1 and 2 filed an appeal
against the final decree which was dis- missed, and their second appeal in the
High Court was also dismissed on 2.12.1972.
Civil Suit No. 1699 of 1980 was filed by Ratanlal, respondent herein, against
the appellants, who are the legal representatives of Motilal, assailing the
consent decree after taking the entire benefit thereunder. The reliefs claimed
were for a declaration that the final decree dated 16.11.1959 was a nullity,
and for possession of Goyal Talkies, etc. The appellants resisted the suit
inter alia on the ground that it was barred by res judicata, and further that
the suit was also barred by virtue of Rule 3A Order 23, C.P.C. The Trial Court framed
a 173 preliminary issue regarding maintainability and held the suit to be
maintainable. The High Court dismissed the civil revision against that order.
this Court it was contended on behalf of the appellant that the suit was barred
by virtue of Rule 3A of Order 23 and even otherwise tile plaint averments did
not disclose any cause of action in order to raise a triable issue. In reply,
it was contended that Rule 3A of Order C.P.C., had no application since the
decree assailed in the suit was a date much prior to insertion of Rule 3A by
amend- ment with effect from 1.2.1977; and that the question of examining the
frame of the suit to determine its maintain- ability on any other ground did
not arise since the appel- lant's case was based on the bar under Order 23,
Rule 3A, and no specific objection for rejection of the plaint under order 7
Rule 1 t C.P.C., was taken earlier.
the course of hearing of the appeal, the respond- ent filed an application for
amendment of the plaint.
the appeal, this Court,
(1) On the admitted facts appearing from the record itself, counsel for the
respondent was unable to show that all or any of the averments in the plaint
disclose a cause of action giving rise to a triable issue. [179F] Since the
plaint suffers from this fatal defect, the mere issuance of summons by the
Trial Court does not require that the trial should proceed even when no triable
issue is shown to arise. Permitting the continuance of such a suit is
tantamount to licensing frivolous and vexatious litigation.
can not be done. [179G-H] (3) It being beyond dispute that the plaint averments
do not disclose a cause of action, the plaint is liable to be rejected under
Order 7 Rule i 1, C.P.C. without going into the applicability of Order 23 Rule
3A, C.P.C. to the present suit. [180A]
is no ground to allow the application for amend- ment of the plaint which apart
from being highly belated, is clearly an afterthought fur the obvious purpose
of averting the inevitable consequence of rejection of the plaint on the ground
that it does not disclose any cause of action or raise any triable issue.
Moreover, the proposed amendments in the plaint are to raise two grounds which
are concluded 174 by the earlier adjudication ending with dismissal of Ratan- lal's
Second Appeal against the impugned decree. [177E-F]
APPELLATE JURISDICTION: Civil Appeal No. 1043 of 1990.
the Judgment and Order dated 10.8.1989 of the Bombay High Court in C.R.A. NO. 521
V.A. Bobde, S.D. Mudaliar. Mrs. Ranjana Bobde and C.K. Ratnaparkhi for the
and Ms. Bina Gupta for the Respondent.
Judgment of the Court was delivered by VERMA, J. Special Leave granted.
short question involved is the maintainability of the suit which gives rise to
this appeal. The appellants contend mat the Suit is not maintainable even on
the plaint averments. The Trial Court held the suit to be maintainable and the
High Court has dismissed the appellants' revision affirming that view. Hence this
appeal by special leave.
appellants are the legal representatives of Motilal who purchased the disputed
property, namely, 'Goyal Talkies' at Kamptee in the year 1946. The said Motilal
entered into a partnership on 31.12.1953 with respondent Ratanlal repre- senting
the joint family firm "M,s. Ratanlal Damdoolal and Bros." for the
purpose of running the cinema business in 'Goyal Talkies'. Some disputes having
arisen between the parties, the said Motilal together with his wife and chil- dren
filed Civil Suit No. 19A of 1955 on 4.8.1955 in the Court of Civil Judge, Class
I, Nagput, against respondent Ratanlal as defendant No. 1, the firm "M/s. Damdoolal
and Bros." as defendant No. 2 and one Puranmal as defendant No. 3. The
suit was for the dissolution of partnership, rendi- tion of accounts and
ancillary reliefs. On discovery of the misdescription of defendant No. 2 firm,
an application was made by the plaintiff for correction of that misdescription.
being obvious, the Trial Court allowed the plaintiff's application on 19.8.1955
permitting defend- ant No. 2 firm to be correctly described as "M/s. Ratanlal
Damdoolal and Bros." instead of "M/s. Damdoolal and Bros." It
appears that the correction even though permitted was 175 not actually
incorporated in the plaint. However, the par- ties were not misled in any
manner by the misdescription of defendant No. 2 made initially in the plaint
which is evi- dent from the fact that defendant No. I Ratanlal who filed the
separate written statement in the suit on behalf of defendant No. 2 also
correctly described defendant No. 2 as "Ratanlal Damdoolal and Bros."
This suit was compromised between the parties and a compromise petition dated February 20, 1956 signed by the plaintiff, Motilal, Ratanlal
for himself as defendant No. 1 and also on behalf of defendant No. 2 firm, and
the counsel for defendant Nos. 1 and 2 was filed in the Trial Court. This
compromise was recorded by the Court on 5.3.1956 after the statements of
defendant No.1 Ratanlal and the counsel for defendant No. 2 firm were recorded
accepting the compromise. One of the agreed terms was that defendant No. 3 Puranmal
should be discharged from the suit apparently because he had no interest in the
to the terms of the compromise, plaintiff was to pay to defendant Nos. 1 and 2
a sum of Rs.15,700 in full satisfaction of their claim subject to final
accounting, which included the sum of Rs.2,600 paid to Puranmal by defendant
Nos. 1 and 2. It was also agreed that on payment of this amount by the
plaintiff to defendant Nos. 1 and 2 within the specified period, the
partnership would be deemed to be dissolved and that defendant Nos. 1 and 2
gave up all their rights including the interest acquired by them from defendant
No. 3, Puranmal under the sale-deed executed in their favour. It was agreed
that the plaintiff would be entitled to possession of the talkies immediately
on payment of the amount due to defendant Nos. 1 and 2. The Receiver Shri K.S. Mishra
Advocate, was required to act in terms of the compromise between the parties
which required confirma- tion of accounts from the accountbooks of the
partnership and thereafter distribution of the surplus between the plaintiff
and defendant Nos. 1 and 2.
plaintiff paid this sum of Rs.15,700 on 5.3.1956 well within the specified
period; the receiver rendered accounts on 19.3.1956 and an application for
correction was made on 3.4.1956. It may be mentioned that full compliance
having been made by the plaintiff on 5.3. 1956, the receiver gave possession of
the Talkies to the plaintiff on 5.3. 1956 according to the compromise since the
Only thing remaining to be done thereafter was to refund to the plaintiff the
amount of Rs.5,470 paid in excess by plaintiff to defendant Nos. 1 and 2. Accordingly,
on 16.11.1959 the Court passed the final decree in the suit stating that the
partnership stood dissolved with effect from 27.4.1959 and the defendant Nos. 1
and 2 were directed to refund to the plaintiff the amount of Rs.5,470 which was
the excess amount paid by the plaintiff to them.
Notwithstanding the above facts, defendant Nos. 1 and 2 filed an appeal against
the final decree dated 16.11.1959 in the Court of the Extra Assistant Judge, Nagpur
which was C.A. No. 413 of 1962 decided on 27.12. 1962. Thereafter, a second
appeal No. 293 of 1963 was also filed by these de- fendants in the High Court
which too was dismissed on 2.12.1972. The final decree dated 16.11.1959 based
on the compromise which was fully satisfied become final inasmuch as the
defendants did not challenge the same by a further appeal to this Court.
Civil Suit No. 1699 of 1980 in the Court of Civil Judge, Senior Division, Nagpur,
was filed by respond- ent Ratanlal against the petitioners who are the legal
representatives of the aforesaid Motilal assailing the above consent decree
after taking the entire benefit there under.
claimed in this suit are for a declaration that the aforesaid final decree
dated 16.11. 1959 passed on the basis of the order dated 5.3.1956 in Civil Suit
No. 19A of 1955 by the Civil Judge, Senior Division, Nagpur, is a nullity; that
the partnership under the partnership-deed dated 31.12.1953 between the said Ratanlal
and Motilal continues to subsist; that Ratanlal is entitled to posses- sion of
the said Goyal Talkies; and the other ancillary reliefs. This suit was
contested by the petitioners, inter alia on the ground that it was barred by res
judicata by the earlier adjudication between the parties and also that it was
not maintainable. It would suffice to say that as a result of the High Court's
direction, the Trial Court framed preliminary issue regarding maintainability
of the suit and by its order dated 15.4.1985, it held the suit to be main- tainable.
On behalf of the petitioners the suit was claimed to be barred also by virtue
of Rule 3A of Order 23, C.P.C.
Trial Court rejected these contentions and held the suit to be maintainable.
The petitioners then preferred a Civil Revision in the High Court which has
been dismissed by the Order dated 10.8.1989. Hence this appeal by special leave.
contention of Shri V.A. Bobde, learned counsel for the appellant is that the
suit is barred by virtue of Rule 3A of Order 23, C.P.C. and even otherwise the plaint
aver- ments do not disclose any cause of action in order to raise a triable
issue. He also contended that even if Rule 3A inserted in Order 23, C.P.C. by
the C.P.C. Amendment Act, 1976 with effect from 1.2.1977 does not apply to the
present suit challenging the decree passed prior to the amendment, this suit is
barred also in accordance with the unamended provision existing earlier. In
reply, Shri V.P. Salve, learned counsel for the respondent contended that Rule
3A of Order 23, C.P.C. has no application since the decree as- sailed in the
suit is of a date much prior to insertion of 177 Rule 3A by amendment with
effect from 1.2. 1977. He also contended that the question of examining the
frame of the suit to determine its maintainability on any other ground does not
arise since the petitioners case was based on the bar under Order 23, Rule 3A,
C.P.C., which too was an objec- tion raised after the filing of the written
statement in which the plea of res judicata had been taken. However, in all
fairness Shri Salve made no attempt to contend that the suit as framed raises
any triable issue on the basis of the only grounds on which the decree dated
16.11.1959 is alleged to be a nullity. He urged only two additional grounds,
not pleaded in the existing plaint, which were raised unsuccess- fully on
behalf of the present respondent in the First Appeal and the Second Appeal
against the compromise decree to contend that the suit is triable. He also
urged that no specific objection for rejection of the plaint under Order 7 Rule
11 C.P.C. was taken earlier and, therefore, the matter be remanded for a fresh
consideration on this basis.
avoid protracting this litigation any longer, we gave opportunity to learned
counsel for the respondent to prepare the case on this point. Shri Salve then
filed an application for amendment of the plaint on the next day in any attempt
to plead the additional grounds on which alone he claimed the suit to be triable.
first dispose of the application for amendment to the plaint filed by Shri
Salve on January 12, 1990 during the course of hearing of the appeal. We do not
find any ground to allow this application which apart from being highly belated,
is clearly an after-thought for the obvious purpose of averting the inevitable
consequence of rejection of the plaint on the ground that it does not disclose
any cause of action or raise any triable issue. Moreover, the proposed
amendments in the plaint, as summarised by Shri Salve, are to raise two grounds
which are concluded by the earlier adjudication ending with dismissal of Ratanlal's
Second Appeal against the impugned decree. The first is the consequence of
rejection of the plaint under Order 7, Rule 11, C.P.C. in the earlier suit on
26.3.1959 and its revival on payment of court-fee by plaintiff, Motilal, in
terms of that order itself. It is sufficient to mention that the High Court's
order dismissing the Second Appeal arising out of that decree considers and
rejects this argument and that order has become final between the parties since
it was not challenged thereafter. The second point relates to delivery of
possession of the Talkies on 5.3.1956 to plaintiff, Motilal, which is alleged
to have been made under a wrong procedure. The facts narrated above clearly
indicate that delivery of possession by the 178 Receiver, Shri K.S. Mishra,
Advocate, to plaintiff, Motilal, was in pursuance of the Court's order dated
5.3.1956 after plaintiff Motilal had already deposited the sum of Rs.15,700
which was really in excess of the amount required to be paid by the plaintiff, Motilal,
to. defendant Nos. 1 and 2 re- sulting in subsequent refund of Rs.5,470 to
plaintiff and the express compromise between parties which was accepted by Ratanlal
in his statement recorded by court on 22.2. 1956.
contention also was rejected in the earlier adjudica- tion ending with the High
Court's dismissal of the Second Appeal which has become final. Moreover, this
appeal is not against that decision of the High Court. There is no ground to
allow the belated attempt to amend the plaint for taking these grounds. The
application for amendment is, therefore, rejected.
not consider it necessary to decide the applica- bility of Rule 3A of Order 23,
C.P.C. to the present suit since the matter can be disposed of even otherwise.
The plaint averments specify the grounds on which the decree dated 16.11. 1959
is alleged to be nullity. The question is:
any of these grounds raises a triable issue in the suit or in other words does
the plaint disclose any cause of action? The specific case of the respondent as
clearly mentioned in Para 3 of the impunged order dated 10.8. 1989 of the High
Court is as under:
plaintiff has never claimed that some fraud, coercion or misrepresentation is
played. On the other hand, he says that due to the lapses while deciding the
matter, decree passed by the Court below has become a nullity.
therefore, clear that the respondent/plaintiff does not challenge validity of
the decree dated 16.11.1959 on the ground of fraud, coercion or
misrepresentation but merely on the basis of lapses in deciding the earlier
suit which have been specifically mentioned in para 6 of the plaint. It is,
therefore, only on these limited grounds that the question of maintainability
of the present suit has to be decided.
therefore, now refer to the grounds mentioned in para 6 of the plaint which
alone are relied on to dis- close a cause of action for the suit. The first
ground of nullity averred in para 6 of the plaint is that the decree was passed
against a non-existent person --"M/s. Damdoolal and Bros." It is not
the respondent's case that "M/s. Dam- doolal and Bros." is a legal
entity distinct from "M/s. Ratanla Damdoolal and Bros." so that the
decree was against another person As earlier stated, in the written-statement
filed by respondent Ratan- 179 lal, the description of defendant No. 2 was
correctly given by respondent Ratanlal himself as "M/s. Ratanlal Damdoolal
and Bros." and not "M/s. Damdoolal and Bros." Moreover, an order
dated 19.8. 1955 was made by the trial court permit- ting the correction to be
made even though it was not duly incorporated in the plaint thereafter. It is
significant that the first appeal and the second appeal filed against the
compromise decree made by the respondent in which the firm as one of the
appellants was correctly described as "M/s. Ratanlal Damdoolal and
Bros." and not "M/s. Damdoolal and Bros". The decree was,
therefore, against "M/s. RatanIal Damdoolal and Bros." and this is
how it was admittedly understood throughout by the respondent himself who repre-
sented the firm at every stage of the earlier suit till the final decision by
the High Court, describing the firm cor- rectly as "M/s. Ratanlal Damdoolal
and Bros." Obviously this ground is non-existent.
next ground of nullity pleaded is that the decree does not direct discharge of
defendant No. 3, Puranmal.
no relief was claimed or granted against defend- ant No. 3, Puranmal who was
treated by all to be only a formal party. This ground also is, therefore, non-existent.
next ground is that there is no consideration for aban- donment of the interest
of Puranmal which renders the corre- sponding term void. Admittedly, the terms
of compromise show payment of Rs.2,600 to Puranmal and execution of a sale-deed
by Puranmal in favour of defendant Nos. 1 and 2 who alone thereafter remained
the interested parties. This is how Shri Salve, learned counsel for the
respondent summarised the entire grounds of nullity pleaded in the plaint.
admitted facts appearing from the record itself, learned counsel for the
respondent, was unable to show that all or any of these averments in the plaint
disclose a cause of action giving rise to a triable issue. In fact, Shri Salve
was unable to dispute the inevitable consequence that the plaint was liable to
be rejected under Order 7 Rule 11, C.P.C. on these averments. All that Shri
Salve contended was that the Court did not in fact reject the plaint under
Order 7 Rule 11, C.P.C. and summons having been issued, the trial must proceed.
In our opinion, it makes no difference that the Trial Court failed to perform
its duty and proceeded to issue summons without carefully reading the plaint
and the High Court also overlooked this fatal defect. Since the plaint suffers
from this fatal defect, the mere issuance of summons by the Trial Court does
not require that the trial should proceed even when no triable issue is shown
the continuance of such a suit is tantamount to licensing frivolous and
vexatious litigation. This cannot be done.
being beyond dispute that the plaint averments do no disclose a cause of
action, the plaint is liable to be rejected under Order 7 Rule 11, C.P.C.
without going into the applicability of Order 23 Rule 3A, C.P.C. to the present
suit. Having reached this conclusion, it is unnecessary to adopt the technical
course of directing the Trial Court to make the consequential order of
rejecting the plaint and, instead, we adopt the practical course of making that
order in this proceeding itself to avoid any needless delay in conclusion of
this futile litigation.
the appeal is allowed. The impugned orders of the Trial Court and the High
Court holding the suit to be maintainable are set aside and the plaint is
rejected under Order 7 Rule 11, C.P.C. The respondent shall pay the appel- lants'