2017(3) ALL MR 544
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

A. S. CHANDURKAR, J.

Indian Oil Corporation Ltd. Vs. Ramesh s/o. Wasanji Kariya & Ors.

Civil Revision Application No.8 of 2016,Civil Revision Application No.9 of 2016

24th January, 2017.

Petitioner Counsel: Mr. ROHIT JOSHI
Respondent Counsel: Mr. A.P. TATOD, Mr. M.P. KARIYA

(A) Civil P.C. (1908), O.7 R.11 - Rejection of plaint - Application for - Consideration of - Held, while considering such application only averments in plaint required to be taken into consideration - Averments in plaint have to be assumed to be correct - If on a meaningful reading of entire plaint cause of action is disclosed then plaint is not liable to be rejected under O.7 R.11 - No defence nor any extraneous material at instance of defendants can be looked into at this stage - Question as to whether cause of action as pleaded would fructify into a decree, cannot be gone into at the stage of considering such prayer. (Para 7)

(B) Civil P.C. (1908), O.7 R.11 - Rejection of plaint - Application for - Suits filed for declaration that plaintiffs had right to receive dealership of petroleum outlet - Dismissal of suits sought on ground that in view of Supreme Court judgment in case of Mohd. Jamal [(2014) 1 SCC 201], plaintiffs not entitled for any relief - No specific provision of law quoted under which suits are sought to be got dismissed - No case that there is total absence of cause of action for filing suits - Whether plaintiffs would be entitled for any relief or not is a matter to be decided on merits - Same cannot be considered in application under O.7 R.11 - Hence, rejection of application held proper. (Paras 8, 9)

Cases Cited:
Mohd. Jamal Vs. Union of India & another, 2014 ALL SCR 374=(2014) 1 SCC 201 [Para 3,4,8]
Ganga Bai Vs. Vijay Kumar, (1974) 2 SCC 393 [Para 9]


JUDGMENT

JUDGMENT :- Since notice for final disposal has been issued in both these Civil Revision Applications in which common issues arise, they are being decided by this common order.

2. The Applicant, who is defendant no.2 in the suits instituted by the Non-applicants - original plaintiffs is aggrieved by the order passed by the trial Court refusing to dismiss the suits filed by the said non-applicants on the ground that the same are not tenable as per the law laid down by the Honourable Supreme Court.

3. Brief facts giving rise to the present proceedings are that the original plaintiffs claim to have taken various steps for installation of petroleum outlets on their lands in terms of policy circular dated 14th November, 2002. According to the plaintiffs, despite taking all such necessary steps, the plaintiffs have not been allotted such dealership on the ground that the earlier policy had undergone a change as a result of which, it was the stand of the applicant that the plaintiffs' rights were extinguished. On that basis, the plaintiffs have filed suits for declaration that they had right to receive dealership of their petrol pumps along with prayer for mandatory injunction to allot the same in their favour. Ancillary perpetual injunction was also sought. In these suits, the applicant moved applications for dismissal of the suits on the ground that in view of the judgment of the Honourable Supreme Court in Mohd. Jamal Vs. Union of India & another [(2014) 1 SCC 201] : [2014 ALL SCR 374], the plaintiffs had no right to seek allotment of dealership on the basis of the policy circular dated 8th October, 2002 as the same had been suspended on 5th February, 2003. The dismissal of the suit was sought on said ground. The plaintiffs opposed the said applications and by the impugned order, the trial Court refused to accept the stand of the applicants and rejected the applications. Being aggrieved, the applicants have filed the present Revision Applications.

4. Shri Rohit Joshi, the learned counsel for the applicant, submitted that in view of the law laid down by the Honourable Supreme Court in Mohd. Jamal, [2014 ALL SCR 374] [supra] that was decided on 8th July, 2013, the plaintiffs had no legal right to any relief, whatsoever, especially the relief sought in the suits. According to him, in absence of any letter of intent being issued to the plaintiffs, they were not entitled for allotment of dealership, as the policy circular dated 8th October, 2002 was no longer in existence. He submitted that in both the suits, the documents in question had been executed after the policy decision dated 8th October, 2002 was suspended on 5th February, 2003. According to the learned counsel for the applicant, the suits were not maintainable in view of provisions of Order-VII, Rule 11 (a) of the Civil Procedure Code, 1908 [for short "the Code"]. It was also urged that the provisions of Order-XII, Rule 6 of the Code could also be taken into consideration for dismissal of the suits. It was, therefore, urged that the trial Court, while rejecting the applications preferred by the applicant, committed a jurisdictional error which was necessary to be corrected under Section 115 of the Code.

5. On the other hand, Shri A.P. Tathod, the learned counsel for the original plaintiffs, supported the order passed by the trial Court. According to him, as the cause of action was specifically mentioned in the plaints, there would be no question of the suits being dismissed under provisions of Order-VII, Rule 11 (a) of the Code. The necessary ingredients of aforesaid provisions for seeking rejection of the plaint had not been satisfied. It was submitted that merely on the basis of aforesaid judgment, the suits were not liable to be dismissed and, in fact, their trial was warranted. The conduct of the applicant in changing its policy was such that the same resulted in prejudice to the plaintiffs and, therefore, no case was made out to exercise revisional jurisdiction.

6. I have heard learned counsel for the parties at length and perused the material on record.

7. Before considering the submissions of the learned counsel, it may be stated that while considering an application under provisions of Order-VII, Rule 11 (a) of the Code, it is only the plaint averments that are required to be taken into consideration. The plaint averments have to be assumed to be correct. If on a meaningful reading of the entire plaint, cause of action is disclosed that would enable the plaintiff to file the suit, then the plaint is not liable to be rejected under Order- VII, Rule 11 (a) of the Code. Neither can the defence set up by the defendants nor can any extraneous material at the instance of the defendants be looked into while considering such application. Further, whether the cause of action, as pleaded, would fructify into a decree is not a question to be gone into at the stage of considering such prayer nor is the likelihood of the success of the plaintiffs a consideration. In the aforesaid legal backdrop, the applications in question deserve to be considered.

8. It is to be noted that in the applications for dismissal of the suits, no specific provision of law has been quoted under which the suits are sought to be got dismissed. The entire basis of said applications is that in view of the law laid down by the Honourable Supreme Court in Mohd. Jamal, [2014 ALL SCR 374] [supra], the plaintiffs are not entitled for any relief and that it would be a futile exercise resulting in wasting the time of the Court if such suits are tried. A careful perusal of the plaints indicates that the plaintiffs have disclosed the cause of action that has prompted them to approach the Civil Court for obtaining the reliefs as prayed. It is not the case that there is total absence of any cause of action for filing the suits. The entire basis of the applications moved by the applicant is that in view of aforesaid decision of the Honourable Supreme Court, the suits were liable to be dismissed. If the decision in Mohd. Jamal, [2014 ALL SCR 374] [supra] is perused, it has been held therein that land owners, who had entered into fresh lease agreements after the policy dated 8th October, 2002 had been suspended would not be in a position to claim any right on the basis of said policy in the absence of any letter of intent having been issued thereunder. It is not held by the Honourable Supreme Court that suits of such nature cannot be filed. It is to be noted that the facts of aforesaid case indicate that the proceedings therein did not arise from any civil suit, but out of writ applications filed before High Court. It is one thing to state that ultimately the plaintiffs would not be entitled to any relief and it is another thing to state that the plaint does not disclose any cause of action for the plaint to be rejected.

9. It is, therefore, clear that in the present case, the plaints disclose a cause of action for approaching the Civil Court. The plaintiffs have referred to policy decision dated 14th November, 2002 in the plaint and not the policy decision dated 8th October, 2002. Whether the plaintiffs would be entitled for any relief or not is a matter to be decided on merits and the same cannot be a consideration while deciding an application under provisions of Order-VII, Rule 11 of the Code. In para 15 of the judgment of Honourable Supreme Court in Ganga Bai Vs. Vijay Kumar [ (1974) 2 SCC 393], it was observed as under:-

"15. ....There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous to 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."

The emphasis of the learned counsel for the applicant is on the aspect of entitlement of the plaintiffs to relief in the suits, and, as observed earlier, the same cannot be a consideration in the present .matter. Hence, as it is found that the plaints disclose cause of action for filing the suits, the plaints are not liable to be rejected under provisions of Order-VII, Rule 11 (a) of the Code.

10. The matter can be looked at from another point of view. The applicant in support of its applications seek to rely upon extraneous material which does not form part of the plaints. The said course is not permissible as it is only the plaint averments that are required to be taken into consideration. It would have been a different matter if the filing of the suit itself was barred. However, the same is not the fact in the present case.

11. As far as the submission that the suits deserve to be dismissed in view of provisions of Order-XII, Rule 6 of the Code is concerned, the same does not deserve acceptance. There is no admission as such on the basis of which the suits are liable to be dismissed. The applicant seeks to rely upon the judgment of the Honourable Supreme Court for seeking dismissal of the suits. The said judgment cannot be utilized for dismissing the suit under provisions of Order-XII, Rule 6 of the Code.

12. In view of aforesaid, I do not find that the trial Court committed any jurisdictional error to warrant interdiction by this Court under Section 115 of the Code. Both the Civil Revision Applications are, therefore, dismissed with no orders as to costs. It is, however, clarified that the present adjudication shall not prejudice the case of either of the parties if the applicant seeks dismissal of the suits under any other provisions of the Code, if permissible in law.

Revision dismissed.