Order Rejecting Plaint - Nandu - 1165

1 R.C.S.
NO. 1165/2018
Chetan Shah V/s Tanak Nandu
CNR No. MHPU020037912018
ORDER BELOW EXH. 34 IN R.C.S. NO.1165/2018
1. This is an application filed by the defendant for

rejection of plaint and dismissal of the suit on various grounds.
2. In the instant application, the defendant firstly states
that the suit is filed against wrong or incorrect defendant. It is
stated that the flats in question as listed in the plaint are
purchased by Vermillion Opportunities and Investments Inc. and
therefore, it is stated that this suit is not tenable against the
present defendant. The defendant further states that the prayers
in the plaint are defective as the plaintiff has not sought
declaration as to his title or for cancellation of title and
therefore, the suit is liable to be dismissed inlimine. It is further
stated that the plaint does not disclose any cause of action
against the defendant as the flats in question are purchased by
Vermillion Opportunities and Investments Inc. It is further stated
that the plaintiff has sought injunction in respect of the flats as
listed in para No. 16 of the plaint, but there is no description of
the property in the said paragraph. It is further stated that the
plaintiff has prayed for injunction until the completion of
arbitration proceeding to which the defendant is not the party
and which is not pending before this court. It is further stated
that the suit is filed to challenge the sale deeds executed in
respect of the suit flats, but the plaintiff has only prayed for
injunction without seeking declaration only to avoid payment of
court fees. It is therefore stated that the suit is under valued.
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3. The defendant further states that the plaintiff has not
made it clear, whether he has filed the present suit in his
individual capacity or as a partner of the partnership firm,
Krome Promoters and Developers. If the plaintiff has filed this
suit in his individual capacity then the title of the suit should
have been in his name only, but he is shown to be the partner
of the firm Krome Promoters and Developers. It is further stated
that the plaintiff has not filed any authority letter authorising
him to file the present suit as partner of Krome Promoters and
Developers. Thus, the plaintiff has no authority to file and verify
the present suit and therefore, the suit is not maintainable. It is
further stated that the plaintiff has made several allegations
against Mr. Nainesh Naidu who is also the partner in Krome
Promoters and Developers. But, he is not made party to this suit
and therefore, the suit is barred for nonjoinder of necessary
party.The defendant further states that Vermillion Opportunities
and Investments Inc. has already sold Flat Nos. A303, A401
and C103 to the third parties and therefore, the suit has
become infructuous. On the aforesaid grounds, the defendant
has prayed for rejection of the plaint and dismissal of the suit.
4. This application is opposed by the plaintiff by filing
say at Exh.35. It is stated therein that this application is not
legal and tenable in the eyes of law. It is further stated that it is
well settled that the pleadings have be construed as they stand
without any addition or subtraction for adjudicating such
application. The plaintiff has denied that the suit is bad for mis
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joinder of the defendant as the flats listed in the plaint is

purchased by Vermillion Opportunities and Investments Inc. It is
stated that Vermillion Opportunities and Investments Inc. is a
proprietary firm and the defendant is the proprietor of the said
firm. It is stated that as a proprietary firm is not an independent
legal entity and the defendant being the proprietor of the said
firm is made party to this suit. It is further stated that as per
Order 9 Rule 9 of the Code of Civil Procedure which provides
that no suit shall be dismissed on the count of misjoinder and
nonjoinder of the necessary parties and therefore, the suit
cannot be dismissed inlimine. It is further stated that the suit
cannot be said to be untenable as the plaintiff has not sought
relief against Vermillion Opportunities and Investments Inc. It is
further denied that the plaint does not disclose any cause of
action or has no cause of action against the defendant. It is
stated that for the purpose of ascertaining whether the plaint
discloses the cause of action, the pleadings in the entirety must
be considered. It has to be seen that on meaningful reading of
the entire plaint, whether the plaintiff has pleaded the manner
in which cause of action has arisen against the present
defendant. It is stated that the defendant has appeared in the
present matter and verified his written statement in his
individual capacity. The defendant has also filed a Civil Suit
bearing No. 1762/2018 in his individual capacity and not in the
name of proprietary firm, since it is not a legal entity like a
partnership firm or public and private companies. It is further
denied that the reliefs sought in the suit are defective and
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incomplete and the suit is not maintainable as primary relief of
declaration and cancellation of title are not sought. It is further
denied that the relief of injunction till the pendency of arbitrary
proceeding is not tenable. It is also denied that the suit is not
properly valued and proper court fees not paid. It is also denied
that the plaintiff has no authority to file the present suit in his
individual capacity or being the partner of the firm Krome
Promoters and Developers. It is also denied that the suit has
become infructuous. It is therefore, stated that there are no
grounds for rejection of the plaint and dismissal of the suit.
5. Points for determination and my findings thereon are
as under:
Sr.No Points Findings

1. Whether the plaint is liable to be Yes
rejected or dismissed?
2. What order ? ..As per final
order.
REASONS
AS TO POINTS NO. 1 AND 2 :
6. The ld. Counsel for the defendant has argued that
the plaint suffers from material and patent defects as elaborated
in the instant application and therefore, the plaint is liable to be
rejected and suit has to be dismissed under Order 7 Rule 11 and
section 151 of the Civil Procedure Code. In support of his
arguments, he has relied upon the judgment in the case of
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Menino Santana Fernandes V/s Kenthony Fernandes,

MANU/MH/0992/2014, wherein the Hon’ble High Court referred
to the various rulings such as in the case “ Mayar( H.K) Ltd &
Ors V/s Owners & Parties, Vessel M.V.Fortune Express & Ors
MANU/SC/8083/2006 : AIR 2006 Supreme Court 1828 .,
wherein it is observed that under order VII Rule 11 of the Code, the
court has jurisdiction to reject the plaint where it does not disclose
a cause of action, where the relief claimed is undervalued and the
valuation is not corrected within a time as fixed by the court,
where insufficient court fee is paid and the additional court fee is
not supplied within the period given by the court, and where the
suit appears from the statement in the plaint to be barred by any
law. He further places reliance on the judgment in the case of
Ramjas Foundation and Ors V/s Union of India (2010)
14SCC 38, wherein it is held that principle that a person who
does not come to the Court with clean hands is not entitled to be
heard on the merits of his grievance and, in any case, such person
is not entitled to any relief is applicable not only to the petitions
filed under Articles 32, 226 and 136 of the Constitution but also to
the cases instituted in others courts and judicial forums. The object
underlying the principle is that every Court is not only entitled but
is duty bound to protect itself from unscrupulous litigants who do
not have any respect for truth and who try to pollute the stream of
justice by resorting to falsehood or by making misstatement or by
suppressing facts which have bearing on adjudication of the
issue(s) arising in the case. It is also held that in the last 40 years,
a new creed of litigants has cropped up. Those who belong to this
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creed do not have any respect for truth. They shamelessly resort to
falsehood and unethical means for achieving their goals. In order
to meet the challenge posed by this new creed of litigants, the
courts have, from time to time, evolved new rules and it is now
well established that a litigant, who attempts to pollute the stream
of justice or who touches the pure fountain of justice with tainted
hands, is not entitled to any relief, interim or final. In this respect,
the ld counsel for the defendant also places reliance on S.P.
Hengalvaraya Naidu (Dead) by L.Rs. V/s Jagannath (Dead)
by L.Rs and Ors, AIR 1994 SC 853, wherein it is held, “fraud
avoids all judicial acts, ecclesiastical or temporal" observed Chief
Justice Edward Coke of England about three centuries ago. One
who comes to the court, must come with clean hands. We have no
hesitation to say that a person, who's case is based on falsehood,
has no right to approach the court. He can be summarily thrown
out at any stage of the litigation. A fraud is an act of deliberate
deception with the design of securing something by taking unfair
advantage of another. It is a deception in order to gain by another
loss. It is a cheating intended to get an advantage.A litigant, who
approaches the court, is bound to produce all the documents
executed by him which are relevant to the litigation. If he
withholds a vital document in order to gain advantage on the
other side then he would be guilty of playing fraud on the court as
well as on the opposite party.
7. The learned counsel for the defendant further argues
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that the plaintiff has sought relief of injunction without seeking
relief of declaration. For this purpose, he places reliance on the
judgment in the case of Anathula Sudhakar V/s P.Buchi Reddy
( Dead) by L.Rs and Ors, MANU/SC/7376/2008 , AIR 2008
SC 2033, wherein the principles were laid down under what
circumstances the suit for bare injunction is maintainable in para
No. 17 of the said decision which is reproduced as under:
17. To summarize, the position in regard to suits for prohibitory
injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not
have possession, a suit for declaration and possession, with or
without a consequential injunction, is the remedy. Where the
plaintiff's title is not in dispute or under a cloud, but he is out of
possession, he has to sue for possession with a consequential
injunction. Where there is merely an interference with plaintiff's
lawful possession or threat of dispossession, it is sufficient to sue
for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with

possession, normally the issue of title will not be directly and
substantially in issue. The prayer for injunction will be decided
with reference to the finding on possession. But in cases where de
jure possession has to be established on the basis of title to the
property, as in the case of vacant sites, the issue of title may
directly and substantially arise for consideration, as without a
finding thereon, it will not be possible to decide the issue of
possession.
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(c) But a finding on title cannot be recorded in a suit for

injunction, unless there are necessary pleadings and appropriate
issue regarding title [either specific, or implied as noticed in
Annaimuthu Thevar (supra)]. Where the averments regarding title
are absent in a plaint and where there is no issue relating to title,
the court will not investigate or examine or render a finding on a
question of title, in a suit for injunction. Even where there are
necessary pleadings and issue, if the matter involves complicated
questions of fact and law relating to title, the court will relegate
the parties to the remedy by way of comprehensive suit for
declaration of title, instead of deciding the issue in a suit for mere
injunction.
(d) Where there are necessary pleadings regarding title, and

appropriate issue relating to title on which parties lead evidence, if
the matter involved is simple and straightforward, the court may
decide upon the issue regarding title, even in a suit for injunction.
But such cases, are the exception to the normal rule that question
of title will not be decided in suits for injunction. But persons
having clear title and possession suing for injunction, should not
be driven to the costlier and more cumbersome remedy of a suit for
declaration, merely because some meddler vexatiously or
wrongfully makes a claim or tries to encroach upon his property.
The court should use its discretion carefully to identify cases where
it will enquire into title and cases where it will refer to plaintiff to
a more comprehensive declaratory suit, depending upon the facts
of the case. On the same point, he has further relied upon, the
judgement in the case of J harkhand State Housing Board V/s
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Didar Singh and Ors, 2018 MANU/SC/1202/2018, (14)

SCALE 641, Hon'ble Supreme Court, wherein it is held that in
each and every case where the defendant disputes the title of the
plaintiff, it is not necessary that in all those cases plaintiff has to
seek the relief of declaration. A suit for mere injunction does not lie
only when the defendant raises a genuine dispute with regard to
title and when he raises a cloud over the title of the plaintiff, then
necessarily in those circumstances, plaintiff cannot maintain a suit
for bare injunction.
8. The ld. Counsel for the plaintiff further argues that
suit is is liable to be dismissed as bad for nonjoinder of
necessary party as Shri. Nainesh Nandu, the father of the
defendant who executed sale deeds in respect of the disputed
flats in his favour is not made party to this suit and also for
misjoinder of the defendant as party to the suit. In support of
this argument, he places reliance on the judgment in the case of
Ultra Merchandise and Retailis Limited V/s In Entertainment
India Limited, 2014(6) ABR 239, wherein it is held that the
nonjoinder of a necessary party is an inherent and fatal defect in
the suit : no decree can possibly result. The nonjoinder of a
necessary party always defeats a suit, and provided that the
necessary averments are in place, such a plea, being a question of
law, can be taken at any time. In this respect, he has further
placed reliance on the case of J.S.Yadav V/s State of U.P. and
Anr. (2011) 6 SCC 570, Honble Supreme Court, wherein it is
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held that no order can be passed behind the back of person

adversely affecting him and such an order if passed, is liable to be
ignored being not binding on such a party as the same has been
passed in violation of the principles of natural justice. The
principles enshrined in the proviso to order 1 rule 9, of the Code of
Civil Procedure, 1908 provide that impleadment of a necessary
party is mandatory and in case of nonjoinder of necessary party,
the plaintiff/petitioner may not be entitled for the relief sought by
him. The litigant has to ensure that the necessary party is before
the court, be it a plaintiff or a defendant, otherwise the
proceedings will have to fail.
9. The ld. Counsel for the defendant further argues that
the defendant has already sold some of the suit flats to the third
persons and therefore, the suit has become infructuous and is
liable to be dismissed under section 151 of the Code of Civil
Procedure. For this purpose, he has placed in to service, the
ruling in the case of Shipping Corporation of India Ltd V/s
Machado Brothers and Ors, AIR 2004 SC 2093, wherein it is
held that it is clear that if there is no specific provision which
prohibits the grant of relief sought in an application filed under
Section 151 of the Code, the courts have all the necessary powers
under Section 151 CPC to make a suitable order to prevent the
abuse of the process of court. Therefore, the court exercising the
power under section 151 CPC first has to consider whether exercise
of such power is expressly prohibited by any other provisions of the
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Code and if there is no such prohibition then the Court will

consider whether such power should be exercised or not on the
basis of facts mentioned in the application. In the instant case, the
appellant contends that during the pendency of the first suit,
certain subsequent events have taken place which has made the
first suit infructuous and in law the said suit cannot be kept
pending and continued solely for the purpose of continuing an
interim order made in the said suit. While examining this question
we will have to consider whether the court can take cognizance of
a subsequent event to decide whether the pending suit should be
disposed of or kept alive. If so, can a defendant make an
application under Section 151 CPC for dismissing the pending suit
on the ground the said suit has lost its cause of action.
10. At the outset, the ld counsel for the plaintiff, Shri.
Irani has argued that the defendant has failed to disclose in the
present application, under which provision of law, the present
application is filed and therefore, same is not maintainable.
Relying upon the judgment in the case of Ms. Sociedade De
Formento Industrial Ltd V/s Shri. Gurudas G. Pai, 2017(7)
ALL MR 518, the ld. Counsel for the plaintiff further argues that
for determining whether plaint should be rejected or not,
pleading in plaint should be looked into as a whole and not in
disjunctive manner. There cannot be any dispute about this
settled legal position. The ld.counsel for the plaintiff further
argues that to see, if the plaint discloses the cause of action, the
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entire plaint has to be read as a whole and meaningfully. He has
relied upon, the judgment in the case of Vardhaman
Developers Ltd V/s Andheri Krupa Prasad Cooperative
Housing Society and Ors, 2015 (4) All MR 651, wherein it is
held that in view of the fact that the construction of the buildings
of the society was carried out long back and the buildings have
become older and being in dilapidated condition, society through
its members are entitled to take a decision to repair or redevelop
the property. It is therefore, held that the redevelopment would be
a requirement and or necessity and cannot be termed as business.
The society is thus not required to carry out any amendment to the
byelaws or to include the ' redevelopment of the buildings' as one
of the object of the society before taking any decision to redevelop
its properties. It is further held that there is no merit in the
submission of the learned counsel for the applicant that the
resolution passed by the society for carrying out redevelopment
without the same being one of the object or that the same being
not business of the society, is illegal and cannot be acted upon. The
notice of motion filed by the applicant under order VII rule 11(a)
is without any merits and thus deserves to be dismissed.
the suit flats are purchased by the firm Vermillion Opportunities
and Investments Inc. of which, the defendant is the proprietor
and therefore, the suit is rightly filed against the defendant in
his individual capacity and not in the name of his firm. In this
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respect, the ld counsel for plaintiff, firstly places reliance on the
ruling in the case of Svapn Construction V/s IDPL Employees
Cooperative Group Housing Society Ltd and Ors, MANU/ DE/
0060/2006, wherein it is held that perusal of the petition reveals
that petition has been filed in the name of sole proprietorship firm
which is not a legal entity through its sole proprietor. A sole
proprietorship firm is not a legal entity which can sue in its own
name though any two persons claiming or being liable as partners
and carrying on business may sue or be sued in the name of firm of
which such persons are partners at the time of accruing of cause of
action, however under Order XXX of the Code of Civil Procedure
and under any other provision of code a person carrying on
business in a name other than his can sue in the name other than
his. In Miraj Marketing Corporation (supra) relied on by the
respondent, it was held that a sole proprietorship firm which is not
a legal entity can not sue in its own name. In that case, plaintiff
was described to be a proprietorship firm represented through a
person who had neither signed the plaint nor had signed the power
of attorney which was filed in the case and no statement was made
in the plaint as to who was the proprietor of the firm. On the same
point, he has also relied on S.S. Constructions V/s State of
Andhra Pradesh and Ors, MANU/AP/0242/2017.
12. The ld counsel further argues that in each and every
suit for injunction, there need not be prayer for declaration and
therefore, the plaint can’t be rejected merely on that ground. For
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this purpose, he places reliance on the ruling in the case of Shri.
Narayan Vaingankar and Ors Vs/ Archdiose of Goa and
Daman Pacopatriaral Religious Institute, 2016 (3) All MR
232, wherein it is held that in the fact and circumstances, it
cannot be said that there was any cloud on the title of the
respondent, which was created in the suit, requiring the
respondent to file a suit for declaration of title.
the suit is properly valued and proper court fees paid and
therefore, the plaint cannot be rejected on that ground. He has
relied upon, the judgment in the case of J.Vasanthi and Ors
V/s N. Ramani Kanthammal, 2018 (1) All MR 423 (SC),
wherein it is held that that proper valuation of the suit property
stands on a different footing than applicability of a particular
provision of an Act under which court fee is payable and in such a
situation, it is not correct to say that it has to be determined on
the basis of evidence and it is a matter for the benefit of the
revenue and the state and not to arm a contesting party with a
weapon of defences to obstruct the trial of an action.
14. The ld.counsel for the plaintiff further argues that

the suit cannot be dismissed or plaint cannot be rejected for
misjoinder and nonjoinder of necessary parties. For this
purpose, he places reliance on the judgment in the case of Prem
Lala Nahata and Ors V/s Chandi Prasad Sikaria, MANU/ SC/
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7070/2007, wherein it is held that Rule 9 of order 1 and 3 of
order 1 and rules 3 and 6 of order II, CPC (code) clearly suggest
that it is open to the court to proceed with the suit
notwithstanding the defect of misjoinder of parties or misjoinder of
causes of action and if the suit results in a decision, the same could
not be set aside in appeal, merely on that ground, in view of
section 99 of the Code, unless the conditions of section 99 are
satisfied . Therefore, by no stretch of imagination, can a suit be
bad for misjoinder of parties or misjoinder of causes of action be
held to be barred by any law within the meaning of order VII, Rule
11(d) of the code. Thus, when one considers order VII, Rule 11 of
the Code with particular reference to clause (d), it is difficult to say
that a suit which is bad for misjoinder of parties or misjoinder of
causes of action, is a suit barred by any law. A procedural
objection to the impleading of parties or to the joinder of causes of
action or the frame of the suit, could be successfully parties or to
the joinder of causes of action or the frame of the suit, could be
successfully urged only as a procedural objection which may enable
the court either to permit the continuance of the suit as it is or to
direct the plaintiff or plaintiffs to elect to proceed with a part of
the suit or even to try the causes of action joined in the suit as
separate suits. In this respect, he has further relied upon the
judgment in the case of, Pandurang Sitaram Pande and Anr
V/s Avinash Ramkrishna Pande and Ors, 2016 (6) All MR
273, wherein it is held that the lower appellate court ought to
have granted an opportunity to the plaintiff to add the necessary
parties to the proceedings and it is only upon the failure of the
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plaintiff to comply with such direction as contemplated by order
rule 13 of CPC, the suit could have been dismissed on the ground
of nonjoinder of necessary parties.
15. It is well settled principle of law that while deciding
the application under Order 7 Rule 11 of the Code of Civil
Procedure, the court can consider only the averments made in
the plaint and cannot consider any defenses raised by the
defendant in its written statement or otherwise. Now, the
question arises, whether in the present suit, the plaint can be
rejected on the grounds raised in the instant application under
Order 7 Rule 11 of the Code of Civil Procedure.
16. For this purpose, I have carefully perused the

pleadings of the plaintiffs as raised in the plaint and the reliefs
sought therein.
17. In the instant suit, which is filed by the plaintiff as a
partner of Krome Promoter and Developers, the plaintiff has
come with a case states that the defendant's father Nainesh
Nandu was also a partner of the said firm Crome Promoter and
Developers alongwith the plaintiff himself, Shri, Keshavji Shah,
Kundan Shah, Rekha Shah, Shri, Nikul Nandu and Kanchan
Harilal Nandu. The plaintiff further states that the proceeding in
respect of dissolution of the said partnership is pending before
Arbitrator. The plaintiff has given in detail, all the terms and
conditions under which the said partnership firm was formed.
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The plaintiff has further given in detail, the rights, duties,

liabilities and obligations of all the partners in the said firm.
According to the plaintiff, the father of the defendant Shri.
Nainesh Nandu with a dishonest intention of cheating the
plaintiff and other partners, right from beginning has
misappropriated the firm amount for his own personal gain and
committed breach of trust. The plaintiff further alleges that with
dishonest intention, Shri. Nainesh Nandu conducted fraudulent
transaction and has cunningly entered into agreement for sale
with the present defendant, so that the defendant being not a
partner of the said firm, may at the earliest, create third party
interest in respect of the suit flats in his individual capacity. It is
stated that the said flats are the assets of the partnership firm
and neither Shri. Nainesh Nandu nor the defendant have right,
title and interest to create third party interest in respect of said
flats. It is stated it is well within the knowledge of the defendant
that the said transactions have been executed fraudulently to
deceive the plaintiff and other partners. Therefore, the
transactions are null and void abinitio. It is stated that since the
defendant is not a partner in the said partnership firm, the
plaintiff is unable to seek relief of injunction against him in the
arbitration proceeding. Therefore, the plaintiff has filed the
present suit. According to the plaintiff the cause of action for
this suit arose in May 2018 when the plaintiff got the knowledge
about the fraudulent transaction entered into Nainesh Nandu
with his son, the present defendant. With the abovesaid
allegations, the reliefs sought by the plaintiff are as under:
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a) The suit of the plaintiff be kindly allowed.
b) The defendant their attorney, agent, employees,
labourers or anybody claiming through the defendant, be
restrained by an order of permanent simplicitor injunction, to
alienate or create any third party interest of whatsover nature,
in respect of the flats details of which are enlisted above in para
No. 16 of the plaint.
c) Pending the disposal and final hearing the
defendantor anybody claiming through the defendant, until the
final adjudication before the Arbitrator, be restrained by an
order of interim injunction from dealing or transacting in
whatsoever manner in the name of the defendant.
d) Costs of this suit be granted to the plaintiff.
e) Decree be drawn accordingly.
f) Any other orders in the interest of justice be passed.
18. Admittedly, the sale deeds in question are executed
in favour of Vermillion Opportunities and Investments Inc.. The
index copy of the same which is placed on record by the
plaintiff, shows that the said firm is a proprietary firm and the
defendant is its proprietor. I do concur with the arguments of
the ld. counsel for the plaintiff, Shri. Irani to the effect that the
said firm being proprietary firm which is not a legal entity, the
suit cannot be filed against the said firm. The rulings relied upon
by him in this respect lay down the same legal position.
Therefore, it cannot be said that the suit should have been filed
against the firm, Vermillion Opportunities and Investments Inc.
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and it is wrongly filed in the name of the defendant. Similarly, I
am also in concurrence with the submission made by the ld.
Counsel for the plaintiff that the plaint cannot be rejected or suit
cannot be dismissed on the ground that the suit is bad for
misjoinder of any party to this suit or nonjoinder of the
necessary parties. The court has to give an opportunity to the
plaintiff to delete the parties who are wrongly added or to add
the necessary party to the suit.
19. It has to be now considered, if the averments in the
plaint discloses cause of action for the plaintiff to sue the
defendant. It is held in the case of, Shri Sarjerao Dhondiba
Sarode And ... vs Smt Kamal Kerubhau Pachange And ... on
14 March, 2018, that in order to ascertain whether there is real
cause of action for filing of the suit or not, there has to be
"meaningful" and not "formal" reading of the plaint. The court has
further to see, whether the plaint discloses a clear right to sue or
the clever drafting of the plaint has merely created the illusion of
the cause of action. As observed by the Hon’ble Apex Court in case
of T. Arivandandam vs T.V. Satyapal and another [(1977) 4
SCC 467], "The learned Munsif must remember that if on a
meaningful not formal reading of the plaint it is manifestly
vexatious, and meritless, in the sense of not disclosing a clear right
to sue, he should exercise his power under Order VII Rule 11,
C.P.C. taking care to see that the ground mentioned therein is
fulfilled. If clever drafting has created the illusion of a cause of
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action, nip it in the bud at the first hearing by examining the party
searchingly under Order X, C.P.C. An Activist Judge is the answer
to irresponsible law suits". Following this judgment in T.
Arivandandam vs T.V. Satyapal and anr (supra), in I.T.C.
Ltd vs Debts Recovery Appellate Tribunal [(1998) 2 SCC 70],
also it was held that, "clever drafting creating illusions of cause of
action are not permitted in law and a clear right to sue should be
shown in the plaint. The ritual of repeating a word or creation of
an illusion in the plaint can certainly be unravelled and exposed by
the Court while dealing with an application under Order 7 Rule
11(a). The emphasis of the Court has to be on finding that the
plaint discloses a clear right to sue. If it does not, then such plaint
cannot survive and it has to be nipped in bud. The Hon'ble Apex
Court has, in case of Church of Christ Charitable Trust and
Educational Charitable Society vs Ponniamman Educational
Trust [(2012) 8 SCC 706], also after reproducing the above
said observations in case of T. Arivandandam vs T.V.
Satyapal (supra), held in paragraph No.13 that:
"While scrutinizing the plaint averments, it is the bounden

duty of the trial Court to ascertain the materials for cause of
action. The cause of action is a bundle of facts, which taken
with the law applicable to them, gives the plaintiff the right
to relief against the defendant". Here in the case, therefore, it
is necessary to see whether the meaningful reading of the
plaint discloses that the plaintiffs in this suit have the right to
relief against the defendants and the cause of action, as given
by the plaintiffs is real cause of action or it is merely a
21 R.C.S. NO. 1165/2018
CNR No. MHPU020037912018
illusory cause of action.
20. In the present suit, the averments in the plaint reveal
that the main grievance of the plaintiff is against the father of
the defendant, Shri. Nainesh Nandu that in breach of his
obligations and duties as a partner of the partnership firm
Krome Developers and Promoters, he has entered into the sale
transactions unauthorizedly, with this defendant in respect of
the suit flats which are the assets of the said partnership firm, in
order to cheat the plaintiff and the other partners. But, he is not
made party to this suit. The plaintiff does not claim that the
defendant has colluded with his father and got executed sale
deeds in his favour. The plaint does not disclose any actionable
wrong attributed to the defendant giving rise to any cause of
action for the plaintiff to seek relief sought in the instant suit.
Admittedly, Shri. Nainesh Nandu executed the registered sale
deeds in favour of the defendant as a partner of the said firm for
valid consideration. Thus, by virtue of the said sale deeds, the
defendant has become the owner of the suit flats and vested
with all the incidents of ownership and the rights to enjoy fruits
of transfer of ownership in his favour. The defendant has not
sought any declaration that the sale deeds executed by Shri.
Nainesh Nandu in favour of the defendant are illegal, null and
void and are liable to be set aside. The plaintiff has not sought
any declaration that defendant No.1 does not derive any legal
and valid title in view of the said sale deeds. It seems, the
plaintiff has avoided to seek these reliefs only to avoid payment
of court fee as per the value of the suit flats. Unless and until
22 R.C.S. NO. 1165/2018
CNR No. MHPU020037912018
Shri. Nainesh Nandu is made party to this suit and the plaintiff
seeks reliefs for setting aside and cancellation of the said sale
deeds, the plaint cannot be said to have disclosed any cause of
action for the defendant to file any suit against the defendant.
For the same reasons, the present suit only for seeking
permanent injunction against the defendant not to create third
party interest in respect of the suit flats is not maintenable.
21. The plaintiff claims to have filed this suit as a

partner of the firm, Krome Promoters and Developers and not
in his individual capacity. He has contended in the plaint that he
would add the other partners of the said firm at subsequent
stage. But, he himself has disclosed that arbitral proceeding is
pending for dissolution of the partnership firm and therefore,
the plaintiff cannot any more represent the firm as its partner.
Moreover, as per Order 30 Rule 1(1) provides that any two or
more persons claiming or being liable as partners and carrying
on business in India may sue or be sued in the name of the firm
(if any) of which such persons were partners at the time of the
accruing of the cause of action, and any party to a suit may in
such case apply to the Court for a statement of the names and
addresses of the persons who were, at the time of the accruing
of the cause of action, partners in such firm, to be furnished and
verified in such manner as the Court may direct. Therefore, this
suit by the plaintiff as a partner of the said firm is not tenable. In
the result, it is to be held that the plaint is liable to be rejected
for non disclosure of cause of action and as barred by provisions
23 R.C.S. NO. 1165/2018
CNR No. MHPU020037912018
of law. I answer point No. 1 in affirmative and in answer to
point No. 2, pass the following order:
ORDER
1) Application Exh. 34 is allowed.
2) The plaint stands rejected.
Dt. 10/04/2019 ( A.D. Bose )
6th Jt. Civil Judge, S.D., Pune.
24 R.C.S. NO. 1165/2018
CNR No. MHPU020037912018
Certificate
“ I affirms that the contents of this P.D.F. file Judgment are same
word for word as per original Judgment.
Name of Steno : S.V.Gorhe
Court Name : A.D. Bose, 6th Jt. C.J.S.D., Pune.
Date : 10/04/2019
Judgment signed by
presiding officer on : 15/04/2019
Judgment uploaded on: 15/04/2019

Order Rejecting Plaint - Nandu - 1165

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Order Rejecting Plaint - Nandu - 1165

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1 R.C.S.

1. This is an application filed by the defendant for

joinder of the defendant as the flats listed in the plaint is

Sr.No Points Findings

Menino Santana Fernandes V/s Kenthony Fernandes,

(b) As a suit for injunction simpliciter is concerned only with

(c) But a finding on title cannot be recorded in a suit for

(d) Where there are necessary pleadings regarding title, and

Didar Singh and Ors, 2018 MANU/SC/1202/2018, (14)

held that no order can be passed behind the back of person

Code and if there is no such prohibition then the Court will

14. The ld.counsel for the plaintiff further argues that

16. For this purpose, I have carefully perused the

The plaintiff has further given in detail, the rights, duties,

"While scrutinizing the plaint averments, it is the bounden

21. The plaintiff claims to have filed this suit as a

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