Cause of Action

Plaintiffs instituted suit for declaration, cancellation, partition, specific performance and injunction with the assertion that the property in dispute was purchased by the predecessor-in-interest of plaintiff vide agreement, however, subsequently the said agreement was not acted upon

Suit was contested by means of filing separate written statement on legal as well as factual grounds

During the pendency of suit, the petitioners applied for rejection of plaint through an application under O.VII, R.11, C.P.C., raising the plea that the so-called agreement had no connection with the property in dispute

Said application was allowed and plaint was rejected

In appeal, the order was set-aside and the case was remanded to the Trial Court for deciding in accordance with law

Validity

After going through the pleadings of the parties, it appeared that there was a title dispute between the parties and serious disputed questions of facts were involved in the matter in respect of ownership of the property in dispute

Genuineness of the alleged agreement required evidence and without recording of evidence the dispute between the parties could not be resolved

In case of the controversial question of facts or law provisions of O. VIl, R. 11, C.P.C., could not be invoked rather proper course for the Court in such cases was to frame issues on such questions and decide the same on merits in the light of the evidence

Matter with regard to the rejection of the plaint was previously raised in the first round of litigation and the application under O.VII, R.11, C.P.C., was dismissed whereafter the same was assailed before High Court by the parties in Civil Revision and thus High Court disposed of both the Civil Revisions by a common judgment

As per observations and directions of this Court, all the disputed questions of fact and law were directed to be resolved on merits, but the Trial Court had not considered that aspect of the matter and accepted the application under O.VII, R.11, C.P.C., of the defendants/petitioners

Impugned order passed by the appellate Court was not liable to be interfered with; therefore, the civil revision petitions filed by the petitioners were dismissed, in circumstances.

Plaintiff/lady, apart from cancellation of mutation, sought second relief praying restoration of her possession over two rooms constructed by her claiming that she was forcibly dispossessed without adopting proper course of law

Civil Court rejected the plaint of the lady/ plaintiff allowing an application filed by the defendants, however, the Appellate Court partly allowed plaintiff's appeal remanding the case with a direction to decide the second relief/prayer on merit

Contention of the petitioners/defendants was that gift-mutation was admitted

Plea of the respondent /plaintiff was that evidence was required in respect of second limb /relief sought by her

Validity

While deciding an application under O. VII, R. 11 of the Civil Procedure Code, 1908, only averments of the plaint were to be taken into consideration and every case was to be decided as per its own peculiar fact and circumstances

Respondent/plaintiff beside seeking cancellation of the impugned gift also sought relief for restoration of her possession of two rooms, which were allegedly constructed by her and said fact was also admitted in another suit filed by the petitioners which was already decreed

Since the respondent/plaintiff was allegedly forcibly dispossessed from the suit-property without adopting proper course of law, and in respect of second limb of her prayer the suit did not fall in the penal provision of O. VII, R. 11 of the Civil Procedure Code, 1908

Trial Court considered only one prayer/relief while deciding application filed by the petitioners/ defendants under O. VII, R. 11, of the Civil Procedure Code, 1908

Suit could be considered and decided independently on the basis of pleadings and evidence of the parties with regard to the other prayer

Such partial rejection, as in the present case, was not permissible under the law

Appellate Court for justifiable reason had set-aside the order of the Trial Court, therefore, impugned order passed by the Appellate Court did not call for any interference by the High Court

Revision was dismissed, in circumstances.

Appellants / plaintiffs in their memo of appeal stated that they did not assert ownership over, nor sought to repurpose the amenity land for private or commercial use

Appellants / plaintiffs supported construction of designated public facilities but averred that such amenities should remain within the area allocated for them and not encroach upon adjacent village land

Held, that amenity land was designated for girls' college, public park and graveyard and neither formed part of adjacent village land nor could the latter lay any claim over it

Karachi Development Authority (KDA) had been tasked with the construction of the public park, which work was ongoing

Division Bench of High Court set aside the order passed by Judge in Chambers of High Court and restored the plaint

Appeal was allowed accordingly.

Actual transaction took place in year 1992 when suit property was purchased in the names of predecessor-in-interest of parties who were wives of two business partners

Transaction was first time challenged by plaintiffs in that year 2018

It is also a common practice and custom of our society that a property is purchased in the name of wife merely to provide her a sense of security

Title of suit property was never questioned or title was never threatened even after passage of 15 (fifteen) years after the death of father of plaintiffs

Provision of Art. 120 of Limitation Act, 1908 started running from the date of death of father, that was, 04-09-2003 and not April, 2018

High Court rejected the suit as it was barred by Limitation Act, 1908

Application was allowed, in circum-stances.

Both the parties instituted their respective suits, which litigation resulted in decreeing the suit of the respondents and dismissing the suit of the petitioners on the point of limitation

Suit-land was allotted ,as a tenant, to petitioners' father, the brother of father of respondents ('the predecessor') under the Colonization of Government Lands Act, 1912 ("the Act 1912")

Claim of the respondents was that the predecessor had sold the property to their father (brother of the predecessor) by way of an oral sale by appearing before the concerned Mukhtiarkar

Validity

Any cause of action for the petitioners could only have accrued from the date when finally, the matter of they being legal heirs of the predecessor was decided

It was immaterial that as to when the oral sale had taken place

From day one, the claim of the petitioners as being legal heirs of the predecessor had been continuously denied; rather the father of respondents even filed a suit seeking such declaration and ultimately lost his claim up to the level of the Supreme Court

It was only thereafter that the petitioners kept on searching about the properties of their father and as soon as they were issued a T.O. Form by the Colonization Officer in 1995, they initiated proceedings and were even successful up to the level of Member, Board of Revenue, in the year 2001

Present suit filed by the petitioners in 2001 was within limitation and could not have been non-suited as held by the Courts below

Even otherwise, if the petitioners had approached the Court belatedly, the time consumed by them before the Colonization Officer and the Revenue Authorities could be looked into and benefit of S. 14 of the Limitation Act ought to have been granted; therefore, High Court held that the Suit was within limitation

High Court set aside impugned judgments and decrees passed by both the Courts below and declared the suit filed by the petitioners decreed

Revision was allowed, in circumstances.

Claim of the petitioners/plaintiffs was that the private defendants had no right to enter into agreement or to receive compensation amount from petroleum company (defendant) in respect of un-partitioned suit-property

Trial Court dismissed the suit of the petitioners/plaintiffs on the application under O. VII, R. 11 of the Civil Procedure Code, 1908, moved by the defendants

Validity

Record revealed that earlier a civil suit was filed against the respondent (petroleum company) and others, which was dismissed almost five years ago

In proceedings of said suit, it had been admitted that the petitioners/plaintiffs had been receiving compensation from the respondent (petroleum company) for more than fifty years

Petitioners/plaintiffs had filed suit on the same subject-matter

Law recognized that the conduct of the party might be such that he had to be stopped from litigating the issue all over again

Such conduct sometimes consisted of active participation in the previous proceedings, which was applicable in the proceedings moved by the petitioners/ plaintiffs

Section 11 of the Civil Procedure Code, 1908, had barred the Court to try any suit or issue, in which the matter was directly or substantially in issue in former suit between the parties or under whom they or any of them had claimed or was litigating under the same title in a Court competent to try such subsequent suit or the suit in which such issue had been substantially raised, heard and was finally decided

Court was bound to reject a plaint under O. VII, R. 11 of the Civil Procedure Code, 1908, where the suit appeared prima facie barred by any law

No illegality or infirmity had been noticed in the impugned orders and decrees passed by both the Courts below

Revision was dismissed, in circumstances.

Suit instituted by the petitioners/plaintiffs for the redemption of property mortgaged more than a century ago was dismissed by the Civil Court on the ground of limitation as the same was not filed within sixty years of mortgage

Appellate Court maintained the decree and judgment passed by the Trial Court

Validity

Record revealed that the predecessor of the petitioners/ plaintiffs had mortgaged the suit-property through mutation in the year 1895 in favour of the predecessor of the respondents/defendants

Suit-property was in possession of the respondents /defendants through inheritance, however, the revenue record had confirmed the ownership of the petitioners/plaintiffs while the respondents/defendants were recorded as mortgagee in the column of cultivation throughout

Suit of petitioners/plaintiffs had been concurrently dismissed on the ground that the same was instituted after about 111 years and thus, was hopelessly barred by time in view of S. 148 of the Limitation Act which provided sixty years for institution of redemption suit

Respondents/ defendants were enjoying the possession of the suit-property since inception of the mortgage and such mortgage, legally speaking, was usufractuary mortgage in terms of clause (d) of the S. 58 of the Transfer of Property Act, 1882

Section 60 of the Transfer of Property Act, 1882 provided right of mortgagor to redeem the mortgaged property, however, S. 20 of the Limitation Act, 1908 stipulated that the receipt of produce during the subsistence of mortgage gave a fresh cause of action to the mortgagor on the receipt of produce of every harvest and the same was deemed acknowledgment

High Court observed that the claim of the petitioners/plaintiffs for redemption was well maintainable, as they (petitioners/plaintiffs )were owners of the suit property while the respondents/ defendants were in possession of the same as mortgagee

High Court set aside decrees and judgments passed by both the Courts below; passed a preliminary decree in favour of the petitioners/plaintiffs and against the respondents/defendants for redemption of mortgaged property

Civil revision was allowed, in circumstances.

Cause of action comprises material facts constituting right and its infringement which entitles a person to sue the wrongdoer or anyone liable for it

Cause of action must include a set of primary or operative facts that represent a legally recognized wrong that creates right to sue which gives rise to a claim enforceable in court

Each cause of action consists of points the plaintiff must prove, and all such elements must be satisfied before Court can take action

Such broad categorization of O. II, R. 2, C.P.C. is in accord with the scheme of Civil Procedure Code, 1908.

Cause of action is predominantly a technical legal term meant for the set of circumstances and facts which give rise to institute and lodge the claim in the court of law but not any premature claims or grievances

Right to sue originates and is triggered by a wrongdoing

Court cannot hear any case nor render any decision without a valid cause of action or without accrual of right to sue or in other words without accrual of cause of action to set the law into motion

Court of law does not decide the lis on mere sentiment, presumption or mere apprehension but the cause of action should be based on a real cause for remedying the wrong into right

Not only the party seeking relief should have a cause of action when the transaction or the alleged act is done but also at the time of the institution of the claim.

Cause of action is predominantly a technical legal term meant for the set of circumstances and facts which give rise to institute and lodge the claim in the court of law but not any premature claims or grievances

Right to sue originates and is triggered by a wrongdoing

Court cannot hear any case nor render any decision without a valid cause of action or without accrual of right to sue or in other words without accrual of cause of action to set the law into motion

Court of law does not decide the lis on mere sentiment, presumption or mere apprehension but the cause of action should be based on a real cause for remedying the wrong into right

Not only the party seeking relief should have a cause of action when the transaction or the alleged act is done but also at the time of the institution of the claim.

Former can only be decided after recording of evidence whereas the latter if does not disclose cause of action would result into rejection of plaint.

One act that was crime under S. 133, Code of Criminal Procedure, 1898 and civil wrong under S. 91, Code of Civil Procedure, 1908, as public nuisance, could possibly provide a cause for an action as private nuisance to an individual

Section 91 of the Code of Civil Procedure, 1908, allowed the action for public nuisance even in the absence of proof of special damages, however, where an individual could prove the special damage, could maintain the action as private nuisance for the same act

Damage would qualify as special if it was particular and direct.

Cause of action accrues in favour of a claimant, the moment goods or services provided turn out to be defective and/or in violation of the provisions of the Act

Service of written notice upon the manufacturer or provider of service, envisaged under the Act, is a mechanism and procedure set out by the Legislature for the redressal of such cause of action prior to approaching the judicial forum i.e. Consumer Court

If the manufacturer and/or provider of services admits the claim of the claimant on receiving the written notice and compensate the claimant to the satisfaction of the latter, the cause of action, as a natural corollary, comes to an end

Conversely, the denial of the claim or no response to the written notice keeps the limitation running.

Argument that as no limitation is provided for issuance of written notice under subsection (1) of S. 28 of the Act, the same could be issued at any time and limitation of thirty days provided under subsection (4) of S. 28 starts running only after issuance of the written notice since the cause of action is recurring in such like cases had no force

Such an argument is misconceived and if accepted, would defeat the purpose of time-limitation provided by the legislature under subsection (4)

While the remedy to the consumers for their protection has been provided under the Act, the legislature could not have left it open-ended at the will of the claimant to serve written notice whenever he feels convenient

Rather, the written notice is to be served immediately on the accrual of cause of action.

Every new entry in the revenue record would give fresh cause of action to the plaintiff and adverse entries therein even if were allowed to remain unchallenged did not necessarily extinguish the right of the party against whom such entry was renewed.

Cause of action accrues in favour of a claimant, the moment goods or services provided turn out to be defective and/or in violation of the provisions of the Act

Service of written notice upon the manufacturer or provider of service, envisaged under the Act, is a mechanism and procedure set out by the Legislature for the redressal of such cause of action prior to approaching the judicial forum i.e. Consumer Court

If the manufacturer and/or provider of services admits the claim of the claimant on receiving the written notice and compensate the claimant to the satisfaction of the latter, the cause of action, as a natural corollary, comes to an end

Conversely, the denial of the claim or no response to the written notice keeps the limitation running.

Argument that as no limitation is provided for issuance of written notice under subsection (1) of S. 28 of the Act, the same could be issued at any time and limitation of thirty days provided under subsection (4) of S. 28 starts running only after issuance of the written notice since the cause of action is recurring in such like cases had no force

Such an argument is misconceived and if accepted, would defeat the purpose of time-limitation provided by the legislature under subsection (4)

While the remedy to the consumers for their protection has been provided under the Act, the legislature could not have left it open-ended at the will of the claimant to serve written notice whenever he feels convenient

Rather, the written notice is to be served immediately on the accrual of cause of action.

Defendant authorities sought return of plaint to be filed in Court at place "I" having territorial jurisdiction over the matter

Validity

In addition to averments and prayer made in plaint, Court had to see dominant object of filing of suit

Facts relating of original interfered spectrum band, consequences of alleged interference therein, grant of additional frequency spectrum band F-7 and decision of Federal Government to withdraw additional spectrum F-7, pleaded in plaint were to be examined collectively for determining cause of action and places of its accrual

Such examination of averments and prayer made in plaint showed that cause of action alleged therein had accrued all across the country including place "K"

Institution of suit before High Court as place "K" was justified under S.20(c), C.P.C.

Application was dismissed, in circumstances.

Accrual of cause of action is something different from disclosure of cause of action, as non-accrual would result into dismissal of suit, but after recording of evidence and non-disclosure of cause of action would result in rejection of plaint.

Cause of action was a bundle or totality of essential facts which an applicant or a plaintiff prior to succeed had to prove.

Plaintiff was a Pakistan Shipping Company whose vessels were arrested by orders of court in South Africa against complaint of defendant

Plaintiff sought anti-suit injunction against defendant company on grounds that High Court adjudicating arbitration had jurisdiction to issue anti-suit injunction

Plea raised by defendant was that matter was pending before court in South Africa and courts in Pakistan had no jurisdiction

Validity

Jurisdiction to grant anti-suit injunction was to be exercised with very considerable caution and for that reason was probably very rarely exercised

Injunction would in such circumstances only be granted where very clearest case of oppression was made out

When other ingredients for grant of an anti-suit injunction were lacking, court could not exercise such jurisdiction

Nature of proceedings in both jurisdictions was also needed to be examined and for establishing ingredients of it being oppressive and vexatious, it ought to have been of same nature in substance

Cause of action was to be examined with care and due regard was to be given before passing of any such injunctive order which was also lacking

Since court in South Africa was already seized of the matter, there was no other proposed action in line, any exercise of jurisdiction by High Court would tantamount to transgressing norms of judicial restraint

It was but natural that it should be left with court seized of the matter to decide whether it had any jurisdiction or not

High Court observed that it was not appropriate and would be violative of principles of comity that one court would injunct another court on ground of forum non conveniens

Plaintiffs failed to make out any prima facie case for grant of anti-suit injunction

Neither balance of convenience lay in their favour nor any question of an irreparable loss arose

Defendant was not within personal jurisdiction of High Court and it was a futile exercise to pass any restraining order regarding its enforceability

Application was dismissed accordingly.

No right to sue existed until an accrual of right is asserted in the plaint and its infringement or clear unequivocal threat to injure that right by defendant against whom suit is instituted is also pleaded in clear terms.

Plaintiff filed suit for recovery of damages against defendant on allegations of frivolous, fictitious and vexatious litigation and also malicious prosecution

Trial Court declined to reject plaint

Validity

Provisions of O. VII, R. 11, C.P.C. contemplated that only statements in plaint were to be looked into for limited purposes which needed to be treated as true and if on perusal thereof, plaint did not disclose cause of action, plaint could be rejected

Examination of plaint disclosed that defendant had raised serious allegations against plaintiff

Plaint also showed that defendant was involved in number of civil and criminal litigation of fictitious and malicious character which prosecution was deliberate, intentional and malicious as also without probable cause and in view thereof, it could not be assumed that on the face of it, plaint did not disclose any cause of action or called for an outright order of rejection

High Court declined to interfere in order passed by Trial Court as plaint under O. VII, R. 11, C.P.C. was premature and unwarranted at the stage it was filed

Revision was dismissed in circumstances.

Plaintiff was aggrieved of order passed by Single Judge of High Court whereby his plaint was rejected for non-compliance of interim order

Validity

Failure of plaintiff to honor interim order could not lead to rejection of plaint specially when said order stood recalled by the court

When hearing injunction application all material available on record could be evaluated but in determination of whether a plaint was liable to be rejected, only plaint and its accompaniments were required to be examined

Where plaint disclosed a cause of action when suit was filed, same could not be returned solely on grounds that said cause of action was lost during pendency of proceedings

Division Bench of High Court set aside order passed by the Single Judge of High Court

High Court Appeal was allowed accordingly.

Meaning.

Meaning.

Contention of applicant was that contract was neither executed at place "A" nor the performance of the same was made within the territorial limits of the Court at that place

Application for return of plaint was dismissed

Validity

Suit could be instituted in a court within the local limits of whose jurisdiction cause of action wholly or in part had arisen

Contract was completed at place "A"

Plaintiff had option to choose his forum for instituting the suit where the cause of action wholly or in part had arisen

Present suit was rightly instituted at place "A", application for return of plaint was not maintainable

No illegality or material irregularity was pointed out in the impugned order passed by the Trial Court

Revision was dismissed in limine.

For the purpose of determination whether plaint discloses a cause of action or not, Court has to presume that every averment made in the plaint is true

Besides the plaint, Court may also take into consideration certain admitted or uncontroverted material placed on record by defendant, the genuineness and veracity of which is beyond doubt and upon examining the same, Court conies to the conclusion that to continue with the suit would be a futile exercise or the case has been filed by plaintiff with manifest dishonesty of purpose, oblique object, to retain or claim ,benefit of such gain which plaintiff is not entitled to and to simply cause prejudice and harassment to defendant.

Petitioner assailed letter issued by authorities allowing him to make payment of outstanding amount of license renewal fee for 12 years

Validity

No lawful cause of action was pointed out by petitioner nor any order was assailed which required interference of High Court under its Constitutional jurisdiction

Constitutional petition was dismissed in circumstances.

Said agreement to sell was not enforceable at law even if contesting parties were ready and willing to abide by its terms

Sub-attorney who claimed to have entered into an agreement of sell with the attorney had not invited objections on entering into agreement of sale of suit property

Even (present) plaintiff after entering into agreement of sale with the sub-attorney had not issued any public notice in newspapers for inviting any objection from public-at-large for transfer of title of suit property

Had such effort been made, legal heirs of the deceased executant of power-of-attorney could have warned the plaintiff before making any further payment of suit property

Search certificate of suit property was not obtained from the office of Sub-Registrar of the properties concerned

Defendant had already breached promise with the plaintiff

Broken promise by the compromising parties could not be endorsed by the court

Application for compromise of suit was liable to be dismissed

No cause of action existed for filing of suit against the defendant

Cause of action shown in the plaint was a false and collusive statement of plaintiff and defendant

Plaintiff had attempted to obtain a compromise decree from the court

Defendant had never refused to perform her part of contract

When cause of action had ceased to exist, provisions of O. VII, R. 11, C.P.C. would attract and plaint was liable to be rejected

Suit for specific performance was liable to be rejected once defendant had conceded that he was ready and willing to perform his part of contract

Nazir of the court could not be allowed to perform part of contract under circumstances

Suit had become infructuous and plaint was liable to be rejected

Both the suit and compromise application were dismissed with cost of Rs. 100,000/- to be jointly and severally borne by the plaintiff and defendant

Said cost should be paid within specified period and if the same was not paid, Nazir of the court should take step for recovery of cost including attachment of movable and immovable properties of plaintiff and defendant

Member Inspection Team of High Court was directed to examine the record and if any criminal case was made out, he should initiate or cause to initiate criminal proceedings against plaintiff and defendant in accordance with law.

Cause of action was a bundle of facts which if traversed a suitor claiming relief was required to prove for obtaining judgment

Cause of action had no relation to the defence that might be set up nor did it depend upon the character of relief prayed.

Party seeking relief should have a cause of action not only when the transaction or the alleged act was done but also at the time of institution of claim

Suitor was required to show that not only a right had been infringed to entitle him to a relief but also that when he approached the court the right to seek relief was in existence

Still born suit should be buried at its inception to save the time of court on a fruitless litigation

Material other than contents of the plaint might be looked into for the purpose of rejection of plaint

Averments contained in the plaint were presumed to be correct for the purposes of application under O.VII, R.11, C.P.C.

Lack or weakness of proof in the circumstances of case could not furnish any justification to the conclusion that there was no cause of action

Defendant-company had no statutory rules of service nor its employees were civil servants

Relationship between the employer and employees was of master and servant

Plaint demonstrating the cause of action and relief claimed by the plaintiff-employee including damages could not be considered barred by law

Person employed in a company/organization having no statutory rules might file a suit for his redressal

Impugned order was set aside in circumstances

Plaintiff-employee having been restored to his previous position, appeal was disposed of.

Meaning.

Arguments against extending the scope of malicious prosecution to civil claims discussed and addressed.

Per Lord Toulson [Majority view]: Malicious prosecution already existed in relation to criminal proceedings, however claim in malicious prosecution could also be brought in relation to civil proceedings/claim between private individuals

Accepting that there was a tort of malicious prosecution of a crime but not a civil action, did not make any sense

Seemed instinctively unjust for a person to suffer injury as a result of the malicious prosecution of (civil) legal proceedings for which there was no reasonable ground, and yet not be entitled to compensation for the injury intentionally caused by the person responsible for instigating it

Extending tort of malicious prosecution to civil proceedings would not necessarily deter valid civil claims or encourage satellite litigation, as there was no way of testing such hypothesis and it seemed intrinsically unlikely

Action for malicious prosecution did not amount to a collateral attack on the outcome of the first proceedings

Per Lord Clarke [Majority view]: Tort of malicious prosecution should apply to the malicious and groundless prosecution of a civil claim causing damage

If a claimant was entitled to recover damages against a person who maliciously prosecuted him for an alleged crime, a claimant should also be entitled to recover damages against a person who maliciously brought civil proceedings against him

Ingredients for the tort of malicious prosecution of a crime and the tort of malicious prosecution of a civil action were essentially the same

Per Lord Mance, dissenting [Minority view]: Wisdom of the past precedents presented no decisive authority for the proposition that scope of malicious prosecution should be extended to civil proceedings also

Such an extension would also run contrary to the general policy of the law regarding costs

Recognition of a general tort of malicious prosecution in respect of civil proceedings would be carrying the law into uncharted waters, inviting fresh litigation about prior litigation, the soundness of its basis, its motivation and its consequences

Logically, it would also enable the claimant to threat a defendant with pursuing a malicious defence; it would also expose the witnesses to such claims, whether as co-conspirators or persons giving unfounded evidence due to ulterior motives

In civil actions it was well recognized that there was absence of any duty of care owed by one litigant to another, and the general immunity which attached to what was said or done in court by litigants or witnesses

Extending the tort of malicious prosecution to civil actions, would open the door to wider claims, to wider exposure and to wider risks of misuse

Per Lord Neuberger, dissenting [Minority view]: Tort of malicious prosecution should not be available in respect of civil proceedings between one private litigant and another for reasons that it was inconsistent with the general rule that a litigant owed no duty to his opponent in the conduct of civil litigation; it was inconsistent with witness immunity from civil liability; it would render the precise ambit of the tort of malicious prosecution, both uncertain and potentially very wide, and potentially make a claim which was not malicious initially, malicious at a later stage of the proceedings; it would create the danger of satellite litigation; it might have unanticipated knock-on effects in other areas of law, with unpredictable consequences, and it may also have a chilling effect on the bringing civil proceedings

Per Lord Sumption, dissenting [Minority view]: Recognition of a general liability for maliciously prosecuting civil proceedings circumvented the principled limits that the courts had imposed on the tort of abuse

Developments in law must be warranted by current values and social conditions.

Mere withdrawal of previous suit and institution of fresh one could not be considered to be fresh cause of action.

Plaintiff filed suit for declaration, possession through pre-emption and permanent injunction claiming that defendant purchased suit land, and, on the same day, she gifted the same to other defendants/her sons through entry in mutation with ulterior motive to deprive plaintiff from his right of pre-emption regarding suit land and that said gift was fraudulent, collusive, mala fide and ineffective upon right of plaintiff

Defendants filed application under O.VII, R. 11, C.P.C. for rejection of plaint which was allowed by revisional court

Validity

Mutations in name of defendant and her sons/other defendants were attested at same time through serial numbers next to each other, which created apprehension and hurdle for plaintiff in exercise of his right of pre-emption

Plaintiff in his plaint had questioned said act of defendant along with exercising his right of pre-emption including all claims available to him at time of filing of suit in compliance of O. II, R. 2, C.P.C.

Defendants in their written statement had not objected that plaint did not disclose cause of action, instead they asserted that plaintiff had no cause of action, which had different meaning

Suit disclosed cause of action which required evidence to decide matter between parties

Issue as to validity of subsequent transfer of suit land in name of other defendants could not be resolved without providing opportunity to parties to prove their stances

Plaintiff questioned the validity of subsequent transfer and he could not be non-suited on ground that second mutation had not been pre-empted

Rejection of plaint under O.VII, R. 11, C.P.C., after submission of written statement and framing of issues, was uncalled for

Revisional court had non-suited plaintiff summarily without considering record or allowing parties to lead their evidence

High Court set aside impugned order and remanded the case to Trial Court with direction of providing opportunity to parties to produce their evidence for fresh decision

Constitutional petition was allowed, accordingly.

Meaning.

Plaintiff filed suit for declaration, dissolution of partnership, cancellation of sale deeds, injunction, partition of property and restoration of property, against defendant claiming that a partnership agreement was entered between parties, and defendant being managing partner of firm, purchased suit property in name of the firm and revenue entries were made accordingly, but he subsequently by executing illegal sale deeds in his personal capacity disposed off the same without permission of the firm

Defendant sought rejection of plaint of suit under O. VII, R. 11, C.P.C., contending that partnership had already been dissolved and plaintiffs had no title in suit property

Both Trial Court and revisional court dismissed defendant's application for rejection of plaint

Contentions raised by defendant were that plaintiff had filed the suit on basis of general power of attorney which had lost its authenticity after death of its executants/other partners; that plaintiff did not file any fresh power of attorney, and that plaint disclosed no cause of action as previous suits filed by plaintiffs were dismissed

Plaintiff took the plea that he had filed suit as attorney of other co-sharers/plaintiffs, and his power of attorney was coupled with interest which was protected under S. 202 of Contract Act, 1872, and that previous suit were not decided on merits and reliefs sought in earlier suits and the present suit were different

Validity

Plaintiff had alleged in the plaint that defendant had committed fraud in collusion with revenue authorities and prepared stamp paper regarding dissolution of partnership deed

As per available evidence, stamp vendor who had issued said stamp paper was not registered

Plaintiff's claim of joint ownership over suit property was still unresolved and subjudice before Trial Court

Parnternship, prima facie, existed until it was determined by court

Factum of existence of partnership deed had created cause of action to plaintiffs

Irrevocable general power-of-attorney executed in favour of plaintiff having never been challenged or revoked by legal heirs of deceased partner, being authority coupled with interest in favour of attorney regarding suit property, was still in existence and valid

Earlier suits filed by plaintiff were not finally decided on merits and their plaints were rejected being barred under the law

Provisions of S. 11, C.P.C. nor principle of res judicata were attracted to the present suit

Suit filed by plaintiff was not barred by non-filing of fresh power-of-attorney by legal heirs, as in case some of the executants of power of attorney had expired during pendency of proceedings, authorization on behalf of remaining executants would continue to remain in force

Defendant failed to point out any illegality or material irregularity committed by courts below while dismissing application under O. VII, R. 11, C.P.C.

Constitutional petition was dismissed in circumstance.

Dispute between parties over possession of suit property and divergent pleadings of parties had given rise to various issues to be framed

Trial Court rejected the plaint but Appellate Court set aside order passed by Trial Court and remanded the same for decision on merits

Validity

Order of Trial Court rejecting the plaint under O.VII, R.11, C.P.C., was not sustainable and was rightly set aside by Appellate Court

Defendant was not able to satisfy as to how suit was barred under provisions of S.42 of Specific Relief Act, 1877

No illegality or jurisdictional defect in exercise of jurisdiction by Appellate Court in setting aside order passed by Trial Court attracting provisions of S.115, C.P.C. were pointed out

Revision was dismissed in circumstances.

Contention of plaintiff was that Trial Court had failed to appreciate that previous suit filed by plaintiff was in respect of a different cause of action, hence the provisions of O.II, R.2, C.P.C. and that of Art.91 of Limitation Act, 1908 were not applicable and suit was not barred under S.42 of Specific Relief Act, 1877 for the reason that suit was filed only when it came to the knowledge of plaintiff that some construction was being done on the said property (land)

Defendant's plea was that defendant being an owner of plot which had no concern with the property in dispute since plaintiff had earlier filed a suit in respect of said property, therefore, a subsequent suit seeking declaration in respect of same cause of action was barred under O.II, R.2, C.P.C.

Held, that since cause of action for filing present suit arose only when it transpired that area in question of plot had included areas of other plots, bar of O.II, R.2, C.P.C., would not be applicable

When suit was filed, the question that whether the other plot was carved out after allegedly encroaching upon the areas of other plots had not arisen and no relief in that regard could have been sought by plaintiff and with regard to objection that suit was time barred

High Court observed that construction work was already started and plaintiff got knowledge about such fact in year 2012

Period of limitation would start from thereon and not from the date of site plan dated 20-6-1998 through which existence of plot was being claimed

Plaintiff could have presumed that for some reason area of plot in question included some area of other plot or it had been carved out after bifurcating and or encroaching his plot until construction started and counting from date of such knowledge about construction, suit was within period of limitation

For purpose of limitation, date of cause of action as averred in plaint was to be looked into wherein it had been categorically accrued that only when construction was started on plot somewhere in year 2012 and it came to knowledge of plaintiff that plot had been carved out by allegedly encroaching upon area of other plot, hence, plaint could not have been rejected on the point of limitation as suit was filed immediately in the year 2012

Impugned order of Trial Court was set aside and case was remanded to Trial Court

Appeal was allowed accordingly.

Plaintiff filed suit for declaration wherein she challenged power of attorney, gift deed and sale mutation but plaint was rejected for want of cause of action

Validity

Donees were not in possession on the suit land

Fact of limitation from the date of knowledge coupled with the fact of possession over the suit property were issues of facts

Impugned judgment was against the spirit of O. XX, R. 5, C.P.C.

Issues framed by the Trial Court were subject to evidence

Present suit should have been decided on merits

Trial Court was bound to resolve the controversy after recording evidence of the parties

Impugned judgments and decrees passed by both the courts below were set aside and case was remanded to the Trial Court for decision afresh.

Factors listed which were relevant for deciding when a statement which caused a claimant distress should be actionable.

Suit was dismissed on the ground that the said cheque was never presented to the bank for payment, therefore no cause of action had arisen

Validity

When the cheque was never presented for payment, then in light of S.72 read with S.84 of the Negotiable Instruments Act, 1881, there was no refusal by the drawer or the bank for payment of the cheque, therefore, no cause of action accrued to the plaintiff for filing a suit under provisions of O.XXXVII, C.P.C.

Cheque was only payable on demand and cause of action arose only when such demand was not honoured

Suit of the plaintiff was therefore, not maintainable

Appeal was dismissed.

Suit was dismissed on the ground that the said cheque was never presented to the bank for payment, therefore no cause of action had arisen

Validity

When the cheque was never presented for payment, then in light of S.72 read with S.84 of the Negotiable Instruments Act, 1881, there was no refusal by the drawer or the bank for payment of the cheque, therefore, no cause of action accrued to the plaintiff for filing a suit under provisions of O.XXXVII, C.P.C.

Cheque was only payable on demand and cause of action arose only when such demand was not honoured

Suit of the plaintiff was therefore, not maintainable

Appeal was dismissed.

For the purpose of negligence and carelessness and the duty to take care, the essentials were that negligence in the sense of mere carelessness, would not give rise to any cause of action

Carelessness, however, would assume legal quality of negligence where there was duty to take care and where failure in that duty had caused damages

Duty to take care was, thus, an essential ingredient of the "tort of negligence" and unless such duty was established, no case of actionable negligence could arise.

Suit filed by plaintiff was rejected by Trial Court on the ground that it did not disclose cause of action and the suit was barred under Ss.39 & 42 of Specific Relief Act, 1877

Validity

Plaintiff was claiming right of inheritance in suit property and plaint could not be rejected without determining that as to whether plaintiff was claiming his right in the property, which controversy could be resolved by providing fair opportunity to parties to lead evidence in support of their respective claims, as property of deceased owner was inherited by four sons of her two brothers

Question relating to fraudulent sale-deeds could be resolved by adducing evidence

Every averment made in plaint was to be accepted as correct and defence could not be looked into while considering application for rejection of plaint

Every allegation made in plaint had to be accepted as correct while rejecting plaint under O.VII, R.11, C.P.C.

Fact that plaintiff could not ultimately succeed in establishing allegations made in plaint, was not a good ground for rejecting plaint

Orders passed by Trial Court as well as Lower Appellate Court suffered from material irregularity and the fact that no cause of action was in existence at the time suit was filed, needed to be determined by considering effect of sale-deeds and circumstances in which sale-deeds were executed

High Court set aside orders rejecting the plaint, passed by both the courts below and case was remanded to Trial Court to decide the matter on its merits after affording fair opportunity of adducing evidence to both the parties on material issues

Revision was allowed accordingly.

Advertisement appeared for the post in newspaper published at place "Q"; and in response thereof, the plaintiff submitted his application for the post through proper channel from place "Q"

Cause of action, therefore, partly accrued at place "Q", and the suit was rightly filed before the Trial Court

Courts below had erred while arriving at the conclusion that there was a lack of territorial jurisdiction.

Every fresh Jamabandi would create fresh cause of action.

Dispute was with regard to shares of a company having its registered office at place "H" and also having its property at place "I"-Suit filed by plaintiff at place "H" was returned to her for filing the same in court at place "I"-Validity

Totality of facts must co-exist and if anything was wanting the claim would be incompetent

Part was included in the whole but the whole could never be equal to the part

Not only the party seeking relief should have a cause of action when the transaction or alleged act was done but also at the time of institution of the claim

There could be a case where at the time when an action was brought, there was no right to seek the remedy though the remedy was available when the right was infringed

Suitor was required to show that not only a right had been infringed in a manner to entitle him to a relief but also that when he approached the court, the right to seek the relief was in existence

Judgments and decrees passed by two courts below were set aside and the matter was remanded to trial court to decide the suit on merits

Petition was allowed accordingly.