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2017 DGLS(Bom.) 141

(BOMBAY HIGH COURT)
Equivalent Citations :- 2017 (2) AIR Bom R 120 :2017 (3) All.M.R. 544 :
Before :- A.S. Chandurkar : J
Indian Oil Corporation Limited
Versus
Ramesh Wasanji Kariya and Others
Case No. :Civil Revision Application Nos.8 and 9 of 2016
Date of Decision : 11/24-01-2017
(A) Code of Civil Procedure, 1908, O.7 R.11(A) - Rejection of plaint - Application for - Held,
where reading of entire plaint discloses cause of action which enable plaintiff to file suit, then
plaint cannot be rejected under Order 7, Rule 11(a), whether cause of action, as pleaded,
would fructify into a decree or likelihood of success of plaintiffs a consideration is uncertain.
(Para 7)
(B) Code of Civil Procedure, 1908, O.7 R.11 - Rejection of plaint - Application for - Points to be
considered - Held, neither can defence set up by defendants nor can any extraneous material
at instance of defendants be looked into while considering application under Order 7, Rule 11.
(Para 7)
Cases Referred :
1. Mohd.Jamal Vs. Union of India and Another;2013 DGLS(SC) 525 : 2013 (10) JT 304 : 2013
(8) Scale 762 : 2014 (1) SCC 201 :
2. Ganga Bai Vs. Vijay Kumar;1974 AIR(SC) 1126 : 1974 DGLS(SC) 145 : 1974 (2) SCC 393 :
Advocates Appeared :
Rohit Joshi in C.R.Appln. Nos. 8 & 9/2016, for applicant.
A.P.Tatod with M.P.Kariya in C.R.Appln. Nos. 8 & 9, for respondent Nos. 1 to 5.
None in C.R.Appln. No. 8/2016, for respondent Nos. 6 & 7 though served & in C.R.Appln. No.
9/2016, for respondent Nos. 2 & 3 though served.
JUDGMENT :
Per Chandurkar A.S., J. :-
1. Since notice for final disposal has been issued in both these civil revision applications in
which common issues arise, they are being decided by this common order.
2. The applicant, who is defendant No. 2 in the suits instituted by the non-applicants - original
plaintiffs is aggrieved by the order passed by the trial Court refusing to dismiss the suits filed by
the said non-applicants on the ground that the same are not tenable as per the law laid down
by the Honourable Supreme Court.
3. Brief facts giving rise to the present proceedings are that the original plaintiffs claim to have
taken various steps for installation of petroleum outlets on their lands in terms of policy circular
dated 14th November, 2002. According to the plaintiffs, despite taking all such necessary
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steps, the plaintiffs have not been allotted such dealership on the ground that the earlier policy
had undergone a change as a result of which, it was the stand of the applicant that the
plaintiffs’ rights were extinguished. On that basis, the plaintiffs have filed suit for declaration
that they had right to receive dealership of their petrol pumps along with prayer for mandatory
injunction to allot the same in their favour. Ancillary perpetual injunction was also sought. In
these suits, the applicant moved applications for dismissal of the suits on the ground that in
view of the judgment of the Honourable Supreme Court in (Mohd. Jamal Vs. Union of India &
another)1, (2014)1 S.C.C. 201, the plaintiffs had no right to seek allotment of dealership on the
basis of the policy circular dated 8th October, 2002 as the same had been suspended on 5th
February, 2003. The dismissal of the suit was sought on said ground. The plaintiffs opposed
the said applications and by the impugned order, the trial Court refused to accept the stand of
the applicants and rejected the applications. Being aggrieved, the applicants have filed the
present revision applications.
4. Shri Rohit Joshi, the learned Counsel for the applicant, submitted that in view of the law laid
down by the Honourable Supreme Court in Mohd. Jamal [supra] that was decided on 8th July,
2013, the plaintiffs had no legal right to any relief, whatsoever, especially the relief sought in
the suits. According to him, in absence of any letter of intent being issued to the plaintiffs, they
were not entitled for allotment of dealership, as the policy circular dated 8th October, 2002 was
no longer in existence. He submitted that in both the suits, the documents in question had been
executed after the policy decision dated 8th October, 2002 was suspended on 5th February,
2003. According to the learned Counsel for the applicant, the suits were not maintainable in
view of provisions of Order-VII, Rule 11(a) of the Civil Procedure Code, 1908 [for short “the
Code”]. It was also urged that the provisions of Order-XII, Rule 6 of the Code could also be
taken into consideration for dismissal of the suits. It was, therefore, urged that the trial Court,
while rejecting the applications preferred by the applicant, committed a jurisdictional error
which was necessary to be corrected under section 115 of the Code.
5. On the other hand, Shri A.P. Tathod, the learned Counsel for the original plaintiffs,
supported the order passed by the trial Court. According to him, as the cause of action was
specifically mentioned in the plaints, there would be no question of the suits being dismissed
under provisions of Order-VII, Rule 11(a) of the Code. The necessary ingredients of aforesaid
provisions for seeking rejection of the plaint had not been satisfied. It was submitted that
merely on the basis of aforesaid judgment, the suits were not liable to be dismissed and, in
fact, their trial was warranted. The conduct of the applicant in changing its policy was such that
the same resulted in prejudice to the plaintiffs and, therefore, no case was made out to
exercise revisional jurisdiction.
6. I have heard learned Counsel for the parties at length and perused the material on record.
7. Before considering the submissions of the learned Counsel, it may be stated that while
considering an application under provisions of Order-VII, Rule 11(a) of the Code, it is only the
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plaint averments that are required to be taken into consideration. The plaint averments have to
be assumed to be correct. If on a meaningful reading of the entire plaint, cause of action is
disclosed that would enable the plaintiff to file the suit, then the plaint is not liable to be rejected
under Order-VII, Rule 11(a) of the Code. Neither can the defence set up by the defendants nor
can any extraneous material at the instance of the defendants be looked into while considering
such application. Further, whether the cause of action, as pleaded, would fructify into a decree
is not a question to be gone into at the stage of considering such prayer nor is the likelihood of
the success of the plaintiffs a consideration. In the aforesaid legal backdrop, the applications in
question deserve to be considered.
8. It is to be noted that in the applications for dismissal of the suits, no specific provision of law
has been quoted under which the suits are sought to be got dismissed. The entire basis of said
applications is that in view of the law laid down by the Honourable Supreme Court in Mohd.
Jamal [supra], the plaintiffs are not entitled for any relief and that it would be a futile exercise
resulting in wasting the time of the Court if such suits are tried. A careful perusal of the plaints
indicates that the plaintiffs have disclosed the cause of action that has prompted them to
approach the Civil Court for obtaining the reliefs as prayed. It is not the case that there is total
absence of any cause of action for filing the suits. The entire basis of the applications moved
by the applicant is that in view of aforesaid decision of the Honourable Supreme Court, the
suits were liable to be dismissed. If the decision in Mohd. Jamal [supra] is perused, it has been
held therein that land owners, who had entered into fresh lease agreements after the policy
dated 8th October, 2002 had been suspended would not be in a position to claim any right on
the basis of said policy in the absence of any letter of intent having been issued thereunder. It
is not held by the Honourable Supreme Court that suits of such nature cannot be filed. It is to
be noted that the facts of aforesaid case indicate that the proceedings therein did not arise
from any civil suit, but out of writ applications filed before High Court. It is one thing to state that
ultimately the plaintiffs would not be entitled to any relief and it is another thing to state that the
plaint does not disclose any cause of action for the plaint to be rejected.
9. It is, therefore, clear that in the present case, the plaints disclose a cause of action for
approaching the Civil Court. The plaintiffs have referred to policy decision dated 14th
November, 2002 in the plaint and not the policy decision dated 8th October, 2002. Whether the
plaintiffs would be entitled for any relief or not is a matter to be decided on merits and the same
cannot be a consideration while deciding an application under provisions of Order-VII, Rule 11
of the Code. In para 15 of the judgment of Honourable Supreme Court in (Ganga Bai Vs. Vijay
Kumar)2, (1974)2 S.C.C. 393, it was observed as under:-
“15. ….There is an inherent right in every person to bring a suit of a civil nature and unless the
suit is barred by statute one may, at one’s peril, bring a suit of one’s choice. It is no answer to a
suit, howsoever frivolous to claim that the law confers no such right to sue. A suit for its
maintainability requires no authority of law and it is enough that no statute bars the suit.”
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The emphasis of the learned Counsel for the applicant is on the aspect of entitlement of the
plaintiffs to relief in the suits, and, as observed earlier, the same cannot be a consideration in
the present matter. Hence, as it is found that the plaints disclose cause of action for filing the
suits, the plaints are not liable to be rejected under provisions of Order-VII, Rule 11(a) of the
Code.
10. The matter can be looked at from another point of view. The applicant in support of its
applications seek to rely upon extraneous material which does not form part of the plaints. The
said course is not permissible as it is only the plaint averments that are required to be taken
into consideration. It would have been a different matter if the filing of the suit itself was barred.
However, the same is not the fact in the present case.
11. As far as the submission that the suits deserve to be dismissed in view of provisions of
Order-XII, Rule 6 of the Code is concerned, the same does not deserve acceptance. There is
no admission as such on the basis of which the suits are liable to be dismissed. The applicant
seeks to rely upon the judgment of the Honourable Supreme Court for seeking dismissal of the
suits. The said judgment cannot be utilized for dismissing the suit under provisions of Order-
XII, Rule 6 of the Code.
12. In view of aforesaid, I do not find that the trial Court committed any jurisdictional error to
warrant interdiction by this Court under section 115 of the Code. Both the civil revision
applications are, therefore, dismissed with no orders as to costs. It is, however, clarified that
the present adjudication shall not prejudice the case of either of the parties if the applicant
seeks dismissal of the suits under any other provisions of the Code, if permissible in law.
Applications dismissed.

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