Attribute and meaning: Every litigation presupposes the
existence of a “cause of action”, that is to say, infringement of a right,
thereby giving a right to move the Court of law, for the enforcement and realization
of that infringed right. For the right to move the court of law, the aforesaid
right sought to be enforced, should have already come into existence, and there
should be an infringement of it, or there must be serious and imminent threat
of its infringement.
Legally speaking, the cause
of action means, a bundle of facts which taken with the law applicable to them,
gives the person a right to relief against another person. It also means every
such fact, which if traversed, it would be necessary for the first person to
prove in order to support his right to the judgment of the Court. [AIR 2012 SC
3912; AIR 1989 SC 1239]
Dimensions: Broadly, the Cause of action has two
dimensions, one, making averments of such material facts in the proceeding,
which are sufficient, if proved in accordance to law, to claim certain reliefs
from the Court. It follows that the aggrieved Party is not obliged to prove
every fact which is being “disputed” by the opposite party (adversary)t; and he
is required to plead and prove only those facts which are “sufficient”, in
order to claim judgment from the Court.
And second dimension of a
cause of action is the accrual of cause of action, i.e. the specific moment /
date when the rights of the Person is infringed and such infringement of right
entitles him to move the Court of law, although he may choose not to move the
Court immediately.
The Cause of action has a
third dimension also. Ordinarily, the law confers jurisdiction upon Civil
Courts where the opposite party resides or carries on business; but at the same
time, the law also recognizes the jurisdiction of such Civil Courts where part
of the Cause of action have arisen, which may include the place of the
residence or business of the first party.
Commencement of legal action: In order to commence a legal
action, the person must have some real grievance against another. A heavy
burden is ordinarily cast upon the Person who invokes the jurisdiction of the
Court, claiming that his rights have been infringed or the law is breached to
his prejudice; and he has to make out a clear cut case for the reliefs he
claims / prays for.
It is no exaggeration if one
were to say that filing of frivolous and meritless cases have become widespread
these days; and with the interplay of words and clever drafting, bogus cause of
action (grievance) is generated, and false litigations are filed.
Nevertheless, the law takes
care of such situations; and mandates that where the proceeding fails to
disclose the cause of action, the Court have powers to dismiss the proceeding
at the threshold. Failure to disclose cause of action would mean, failure to
set out the material facts of the case in the proceeding, or failure to
disclose in the proceeding when the cause of action arose.
Material facts: The material facts which are to be set
out in the proceeding would depend upon the nature of principal Reliefs which
are claimed. The Materiality of facts would always mean those “facts which are
material to the relief claimed”.
A material fact is a fact, which
if proved (whether solely or in connection with other facts), the inference
would be drawn – (a) of the existence of the (ingredient) of the right or the
whole right itself, which is asserted; or (b) of the existence of the
(ingredient) of the liability or the whole liability, which is attributed.
[Definition of “facts in issue” contained in Indian Evidence Act, 1872]
Order 7 Rule 11 of the CPC, 1908: Under O.7 R.11(a) of the
CPC, 1908, a civil proceeding may be dismissed at the entrance, if the said
proceeding fails to set out the material facts of the case, or if it fails to
set out the date when the cause of action. The aforesaid provision of law
entitles the opposite party to move the Court of law in the very beginning of
the proceeding, alleging that the instant proceeding are wanting in material
facts and fails to disclose cause of action; and thus deserves to be dismissed.
[AIR 1977 SC 2421]
Principles which orbits around O.7 R.11 Applications: There are certain
established principles of law which are kept in mind by the Courts whilst
exercising their powers and deciding any such Application filed under O.7
R.11(a) of the CPC, 1908, for the dismissal of the proceeding.
1.
Averments in the Plaint are
decisive:
The first and foremost principle is that whilst deciding this Application, the
statements made in the Plaint (proceeding) are only to be looked into; and
statements of reply of the opposite party, or any other proceeding, are never
taken into consideration. [AIR 2003 SC 759; AIR 2017 Civil Cases 1426; AIR 2015
Civil Cases 1717; AIR 2017 SC 593]
2.
The whole reading of the
Plaint:
The second important principle is that the entire Plaint is read as a whole;
and the natural inferences may be drawn from every averments / statements made
in the Plaint, as whether they disclose a clear right of the party, whether
sufficient facts are pleaded in support of the right and relief claimed. And
thereafter any conclusion is to be reached whether the Plaint discloses or fails
to disclose cause of action. A failure to disclose a single material fact, may
render the Plaint liable to be rejected under thisPresumption of correctness of Pleadings: Further, the Court
would presume the truthfulness of the facts asserted, as the falsity of any
such assertion of fact can only be decided after evidences are led. The
test is, if the averments made in the plaint are taken to be correct in their
entirety, whether a decree would be passed. [AIR 1989 SC 1239; (1994)
6 SCC 322; (2004) 9 SCC 512; AIR 2015 Civil Cases 1717]
3.
Infringement of Right must be
clearly spelled out:
Nevertheless, the Plaint must disclose a clear right which is sought to be
enforced. It follows that the right which is sought to be enforced must be real
and must be duly recognized under the law, that is to say, a right cannot be
permitted to be enforced which is prohibited under the law or which is not
recognized under the law. [AIR 2017 Civil Cases 2602; AIR 2017 Civil Cases
1426; AIR 2017 Civil Cases 1035; AIR 2016 Guj 104; AIR 2016 Del 120; AIR 2016
Civil Cases 1176; AIR 2015 Civil Cases 1149; AIR 2015 Civil Cases 1012; AIR
2014 SC 1931 ]
4.
Rule. [AIR 2016 Civil Cases 2693]
5.
Assertion of any fact must
have legal basis:
Further, assertion of any material fact must have legal basis, that is to say,
assertion of any fact cannot be in breach of, or contrary to provisions of
applicable law or in breach of binding judgments of the High Courts or Apex
Court, as no valid cause of action could accrue in such backdrop. [AIR 2017
Civil Cases 3057]
6.
Importance of documents
relied upon:
Further, a Plaint can be rejected on the grounds that the concerned Party has
failed to place on record basic foundational documents, on which he has founded
his claim. [2011 (3) MhLJ 128]; or the Plaint can be rejected where the
documents which are placed on record does not support the case of the Plaintiff
[AIR 2016 Guj 104]. However, at the stage of consideration of O.7 R.11
Application, the validity or admissibility of the documents cannot be considered.
[AIR 2009 Del 1]
7.
Rejection of Plaint qua
certain Defendants permissible: In a proceeding involving two or more
opposite parties, the Application under this Rule may be taken out qua certain
opposite parties; but Application under this Rule cannot be taken out qua
certain reliefs. [ AIR 1957 Raj 97]
8.
Disposal of this Application
before resuming trial:
The O.7 R.11 Application must be disposed of before proceeding for trial. [AIR
2016 SCW 3282]
9.
NO WS in certain cases: The Written Statement
(Reply) may not be filed if the Opposite Party has taken out O.7 R.11
Application [AIR 2016 SCW 3282]
10. At any stage: This Application can be moved before
the Court of law at any stage of the proceeding, even after issues are framed.
The whole purpose of conferment of such powers is to ensure that a litigation
which is meaningless and bound to prove abortive should not be permitted to
occupy the time of the court. [AIR 1986 SC 1253; AIR 1987 SC 1926; AIR 2003 SC
759; AIR 2017 Civil Cases 1426; AIR 2017 SC 593 ]
How to detect: (1) First of all, it may be seen that
Parties are properly described, as incorrect description or impleadment of
Plaintiff may occasion the argument that NO rights of Plaintiff are breached
and therefore Plaintiff has no cause of action to invoke the litigation; and
incorrect description or impleadment of defendant may occasion the argument
that Defendant had no privity of contract with the Plaintiff, and / or
Defendants are not liable / answerable to the Plaintiffs.
It may be ascertained as whether
the person filing the litigation has sufficient locus to file the litigation.
The general rule is that the person whose rights are infringed, must invoke the
doors of the Court, and not anyone else.
However, in cases of
infringement of rights of minors and persons of unsound mind, their Parents /
guardians, next friend may file the litigation on their behalf.
In so far as Limited
companies are concerned, the proceedings must be initiated though some
principal officer of the company or through any other individual, duly
authorized in that behalf by the Company, by duly passing Resolution to that
effect. Nevertheless, the litigation has to be in the name of the Company; and
if the litigation is filed in the name of principal officer, etc, the proceedings
would be bad in law, for, in the eyes of law, NO personal rights of any such
principal officers, etc, are breached, and they had no cause of action to
invoke the said litigation.
In so far as proprietorship
firms are concerned, the proceedings must be filed in the name of Proprietor,
as the law doesn’t recognizes the legal status of Proprietorship firms.
In so far Partnership firms
are concerned, these can sue in the name of the Firm, and can also be sued in
the name of the Firm.
(2) Jump to Prayer clause,
that is, relief claimed against Defendants. There may be instances where the
cause of action is duly disclosed in respect of some of the defendants, but
reliefs are claimed against certain other Defendants, against whom there are no
sufficient pleadings, to claim reliefs. Sometimes Defendants are merely
impleaded without seeking any relief against them. In such circumstances, the
concerned Defendant may move under O.7 R.11 Application, alleging failure to
disclose cause of action.
(3) The specific Relief Act,
1963, recognizes certain specific type of Reliefs which may be claimed from the
Court of law; and the said Act in the respective sections lay down the
ingredients / conditions / circumstances under which any of these reliefs may
be claimed.
The Specific Reliefs which
may be claimed from the Court of law are –
(a) claim to possession of an
immovable property based on entitlement to possession (S.5);
(b) claim to possession of an
immovable property based on unlawful dispossession (S.6);
(c) claims as to any movable
property (Ss.7 and 8);
(d) claims as to Specific
performance of contracts (Ss.10 to 24);
(e) claims for rectification
of contract / any other legal document bearing rights and liabilities (S.26);
(f) claims for cancellation
of contract, either by the parties to the contract, or by any other person who
is legally prejudiced by the existence of the said contract (Ss.27 to 29);
(g) claims for cancellation
of any legal instrument bearing rights and liabilities, either by the parties
to the contract, or by any other person who is legally prejudiced by the
existence of the said contract (Ss.31 to 33);
(h) claims as to declaration
of certain rights (Ss.34 and 35);
(i) claims as to prohibitory
Injunctions (Ss.36, 37, 38, 40, 41, 42);
(j) claims as to mandatory
Injunctions (S.39, 40, 41, 42).
These aforesaid Reliefs may
be claimed, subject to conditions and circumstances specified in the respective
sections; and failure of the Plaintiffs to make sufficient averments in the
Plaint, satisfying the requirement of law, as mandated under respective
sections, may render the Plaint be rejected for not disclosing cause of action.
The Indian Limitation Act,
1963, in the Schedule appended to the Act, among other things, spells out the
type of Suits which may be filed. The “description of the Suit” and the “Time
from which period begins to run”, in the said Schedule, constitute the
substantive ingredients of the cause of action qua concerned Article of the
said Schedule.
Curing the defects: However, the shortcomings in the
disclosure of material facts, can be cured by taking out Application under O.6
R.17 of the CPC, 1908; and the material facts which have been left out, may be
added in the original proceeding, to complete the cause of action. [(2007) 15
SCC 52; 2017 (3) MhLJ 223] Further, dismissal / rejection of proceeding does
not frustrate the substantive rights of the party, and the Party may file a
fresh proceeding by virtue of mandate of O.7 R.13, after curing the defects in
the Pleadings.
Decree: An Order of the Court rejecting / dismissing the
proceeding under this Rule, is considered as a decree of the Court; and the
said Order can be challenged by way of Appeal only. [AIR 1957 Raj 97; AIR 2015
Civil Cases 2680]
Suit getting infructuous: During the course of proceeding, due to
any reason, if the Suit is rendered infructuous, that is to say, the relief
claimed in the Suit cannot be granted, thereby ceasing of the cause of action,
appropriate Application under O.7 R.11 read with Section 151 of the CPC, 1908,
may be taken out for the dismissal of the Suit. This Application can be taken
out even after passing of the decree. [AIR 2004 SC 2093]
Sandeep Jalan
Advocate
Mumbai
https://www.litigationplatform.com/
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