Holding

The High Court’s order dismissing the suits on the sole ground that the issues were covered in the writ petition is unsustainable; the suits must be restored for fresh adjudication.

Summary

The State of Uttarakhand acquired land for a public road to a hospital under the Land Acquisition Act, 1894. The original owner later gifted part of the land to the appellants, who sued the hospital for a perpetual injunction to prevent it from erecting walls that would block the road. The trial court granted a temporary injunction; the hospital appealed, and the original owner filed a writ petition alleging fraud in the acquisition. The High Court, invoking Section 24 of the CPC, transferred the suits and appeals to its own docket and then summarily dismissed them on the ground that the same issues were being considered in the writ petition, without hearing the parties or giving reasons. The Supreme Court held that such summary dismissal was impermissible, emphasizing the inherent jurisdiction under Section 9 CPC and the requirement of a reasoned order, and restored the suits and appeals for fresh adjudication. Consequently, the appeal was allowed and the High Court’s order set aside.

Issues considered

The High Court’s power under Section 24 CPC to dismiss civil suits transferred to it on the ground that identical issues are pending in a writ petition.
Whether a civil suit can be summarily dismissed without a reasoned order and without hearing the parties.
The distinction between the scope of a writ petition and a civil suit concerning the same subject matter.
The applicability of inherent jurisdiction under Section 9 CPC to prevent arbitrary dismissal of suits.

Legislation cited

Code of Civil Procedure, 1908s. 24, s. 9, s. Order 14 Rule 1, s. Order 14 Rule 2, s. Order 39 Rule 1, s. Order 39 Rule 2, s. Order 7 Rule 11
Land Acquisition Act, 1894s. 4, s. 6

Subjects

Land acquisitionCivil Procedure CodeInherent jurisdictionSummary dismissalPerpetual injunctionPublic roadSection 24 CPCSection 9 CPCWrit petitionNatural justice

Judgment

[2008] 11 S.C.R. 1142
At

A ABDUL GAFUR AND ANR.
II.
STATE OF UTTARAKHAND AND ORS.
(Civil Appeal No. 4982 of 2008)
AUGUST 11, 2008 ~

s- "(

[C.K. THAKKER AND D.K. JAIN, JJ.]

Code of Civil Procedure, 19QB - ss. 9 and 24 - Or. 7, r. 11,
Or. 14, rr. 1 and 2, Or. 39, rr. 1 and 2:
c Suits - Disposal of - Land acquired by State Govern-
ment for construction of approach road for hospital - Land
owner meanwhile alienated by gift deed a part of the land -
Donees filed suits for perpetual injunction against hospital -
Trial Court granted temporary injunction - That order appealed
D against - During pendency of appeals, land owner filed writ
~-
petition alleging acquisition of the land as fraudulent - High
Court withdrew the pending suits and appeals to itself and sum-
marily dismissed the same on the sole ground that the ques-
tion involved therein was directly raised in the writ petition -
E Held: Order of High Court cannot be sustained - Object of
filing of the suits could be a dubious and indirect attempt on
part of land owner to derive some undue advantage in conniv-
ance with the donees, yet that was no ground to dismiss the
suits summaril~ in the manner done - Arguable questions,
F legal or factual, could not be summarily rejected without re- t·
cording a reasoned order - Mere entertaining of the writ peti-
tion, to which the donees were not parties, even if it involved
a
determination of similar issues, was not good ground to dis-
miss the suits without granting opportunity to the parties to
prove their respective stands - Moreover, scope of the writ
G
petition and the suits was different - Suits and appeals re-
stored to file of High Court for decision afresh - Land Acquisi- \
tion Act, 1894 - ss. 4 and 6 - Practice and Procedure.
Notifications were issued under ss.4 and 6 of the
H 1142
ABDUL GAFUR & ANR. v. STATE OF 1143
UTTARAKHAND & ORS.
~

Land Acquisition Act, 1894 for acquiring land belonging A
to respondent no.4, for construction of an approach road
for respondent No.3-hospital. Respondent no.4, in the
meanwhile, alienated a part of the said land in favour of
appellant nos.1 and 2 by way of gift deeds. Subsequently,
,,. licence deed in respect of the said land was executed in B
favour of respondent no.3 and construction of the road
commenced.
Apprehending that respondent no.3 was planning to
raise a boundary wall on both sides of the road, which
would obstruct use of the road by public at large, includ- c
ing the appellants, the appellants filed suits for perpetual
injunction, seeking to restrain respondent no.3-hospital
from raising any kind of construction. The Trial Court
granted temporary injunction. Respondent no.3 filed ap-
peals against the interim injunction, during pendency of D
which, respondent no.4 filed a writ petition alleging that
the acquisition was fraudulent. Exercising its power un-
""
der s.24, CPC, the High Court, vide an ex-parte order, trans-
ferred the pending suits and appeals to itself. Appellants
filed misc. application in the said writ petition seeking re- E
call of the ex-parte order. The High Court did not pass
any order on the misc. application and summarily dis-
missed the said suits and the appeals on the sole ground
that the question involved therein was directly raised in
the writ petition. Hence the present appeal. F
""" Allowing the appeal, the Court
HE~D:1.1. As per s.9, CPC, in all types of civil dis-
putes, civil courts have inherent jurisdiction unless a part
of that jurisdiction is carved out from such jurisdiction,
_j G
expressly or by necessary implication by any statutory
provision and conferred on other Tribunal or Authority.
Thus, the law confers on every person an inherent right
..... i
/'(
to bring a suit of civil nature of one's choice, at one's peril,
howsoever frivolous the claim may be, unless it is barred
H
1144 SUPREME COURT REPORTS [2008] 11 S.C.R.
>--
-'t '
A by a statute. [Para 13] [1150 E-G]
Smt. Ganga Bai v. Vijay Kumar & Ors. (1974) 2 SCC
393 and Dhannalal v Kalawatibai and Ors. (2002) 6 SCC 16
L
.
I'-

"."'"relied on. I
1.2. Rule of pleadings postulate that a plaint must ~
B
contain material facts. When the plaint read as a whole
"'(
;-
does not disclose material facts giving rise to a cause of l-
action which can be entertained by a civil court, it may be :
rejected in terms of Order 7, Rule 11 of CPC. Similarly, a
c plea of bar to jurisdiction of a civil court has to be consid-
ered having regard to the contentions raised in the plaint.
For the said purpose, averments disclosing cause of ac-
tion and the reliefs sought for therein must be considered
in their entirety and the court would not be justified in r :~
,,_
determining the question, one way or the other, only hav-
D
ing regard to the reliefs claimed de'hors the factual aver- r,._
ments made in the plaint. [Para 16] [1151-E,F,G] ).. t=
Church of North India v. Lavajibhai Ratanjibhai and Ors. I
(2005) 1o sec 760 - relied on. ~
'
E 1.3. Under s.24 of CPC, the High Court has jurisdic-
tion to suo motu withdraw a suit or appeal, pending in
any court subordinate to it, to its file and adjudicate itself
on the issues involved therein and dispose of the same.
Unless the High Court decides to transfer the suit or the
F appeal, as the case may be, to some other court or the
same court, it is obliged to try, adjudicate and dispose of t-
the same. The High Court is competent to dispose of the
suit on preliminary issues, as contemplated in Order 14
Rule 1 and 2 of CPC, which may include the issues with
G regard to maintainability of the suit. If the High Court is
.
~
convinced that the plaint read as a whole does not dis-
close any cause of action, it may reject the plaint in terms
of Order 7 Rule 11 of CPC. [Para 17] [1151-51 H,A,B,C] .It
·~ '
>-.
1.4. If on a meaningful - not formal - reading of the
H
ABDUL GAFUR & ANR. v. STATE OF 1145
+ UTTARAKHAND & ORS.

plaint, it is manifestly vexatious, and meritless, in the sense A
of not disclosing a clear right to sue, the court should
exercise its power - under the said provision. And if clever
drafting has created an illusion of a cause of action, it
should be nipped in the bud at the first hearing by examin-
,.. ing the party searchingly under Order X CPC. Nonetheless, B
the fact remains that the suit has to be disposed of either
by the High Court or by the courts subordinate to it in a
meaningful manner as per the procedure prescribed in the
CPC and not on one's own whims. [Para 17] [1152 C-E]
T Arivandandam v. TV Satyapal and Anr. (1977) 4 SCC c
467 - relied on.
2.1 In the instant case, when the transferred suits and
the appeals came up for consideration before the High
Court, it, without passing any order on the application pre-
D
ferred by the appellants for recall of the ex-parte transfer
.. order, dismissed the suits on the ground that the issues
raised in the suits were being examined in the writ petition.
The procedure adopted by the High Court is unknown to
law. The object of filing of the suits could-be a dubious and
indirect attempt on the part of respondent No.4, to derive E
some undue advantage in connivance with the appellants,
yet that was no ground to dismiss the suits summarily in
the aforenoted manner. [Para 18] [1152,F,G,H, 1153 AB]
2.2 One of the fundamental norms of judicial process F
~
is that arguable questions either legal or factual, should
not be summarily dismissed without recording a reasoned
order. Mere entertaining of the writ petition, to which the
appellants were not parties, even if it involved determina-
tion of similar issues was not a good ground to dismiss
G
the two suits without granting opportunity to the parties
to prove their respective stands. Moreover, the scope of
;
the Writ Petition and the two suits also seems to be differ-
~
ent. [Para 18] [1153 C-0]
2.3. The two suits and the appeals, dismissed in terms H,
.... __ ·-· --... ~"' ~·
1146 SUPREME COURT REPORTS [2008) 11 S.C.R.

A of the impugned order of the High Court, are restored to
the file of the High Court for fresh adjudication and dis-
posal in accordance with law. [Para 19) (1153- E]
Case Law Reference le
,.._

B (1977) 4 sec 467 relied on Para 11
)or '!=
(1974) 2 sec 393 relied on Para 14
(2002) 6 sec 16 relied on Para 15
c2oos). 1o sec 760 relied on Para 16
c CIVILAPPELLATE JURISDICTION: Civil Appeal No. 4982
of 2008
From the final Judgment and Order dated 29.3.2007 of
the High Court of Uttarakhand at Nainital in Misc. Applications
Nos. 499 & 500 of 2007 in Writ Petition Misc. Bench No. 272 of
0
2007
P.S. Patwalia, Pramod Dayal, Mikunj Dayal and Nitish
Rana for the Appellants.
Jayant Bhushan, Sanjeev Agarwal, Yunus Malik, Ravi
E Kishore, Prashant Chaudhary, Vijay K. Jain and Vishnu Sharma
for the Respondent.
The Judgment of the Court was delivered by
D.K. JAIN, J.: 1. Leave granted.
F
2. This appeal, by special leave, is directed against the
order, dated 29th March, 2007, passed by the High Court of
Uttarakhand in Writ Petition Misc. No.272 of 2007 whereby the
two suits filed by the appellants for perpetual injunction have
G been dismissed in Jimine.
3. Facts necessary for the disposal of this appeal are as
follows:
On 2/28th March, 2005, a gazette Notification was issued
H under Section 4 of the Land Acquisition Act, 1894 (for short 'the
j.
ABDUL GAFUR & ANR. v. STATE OF 1147
-1-
UTTARAKHAND & ORS. [D.K. JAIN, J.:]

Act') for acquiring 0.6900 Hee. of land belonging to one Tek A
Chand, respondent No.4 herein, for construction of approach
road for Himalayan Institute Hospital Trust, Dehradun, respon-
dent No.3 (hereinafter referred to as "the Hospital"). Tek Chand
objected to the said acquisition. In the meanwhile, on 25th May,
2005, he alienated a part of the said land in favour of appellants B
"'- No.1 and 2 by way of gift deeds. Gazette notification under
Section 6 of the Act was published on 16th June, 2005.
4. On 4th July, 2005, Tek Chand (respondent No.4) pre-
ferred a Writ Petition challenging the validity of Notifications
under Sections 4 and 6 of the Act. It appears that on 27th March, c
2006, a clarification was issued by the State Government, re-
spondent No.1, to the effect that the possession of the passage
to the Hospital shall remain with them; the Government would
,,r
be making financial contribution in its construction and the pub-
__,/ lie would be entitled to use the same. In the affidavit filed on D
behalf of the Government in the Writ Petition it was reiterated
"' that the road was not going to be used exclusively by the Hospi-
tal. Ultimately, the Writ Petition was dismissed. Special Leave
Petition filed by Tek Chand against the said order was also dis-
missed on 151h September, 2006. Licence deed in respect of E
the said land was executed in favour of the Hospital on 16th
November, 2006 and construction of the road commenced some
time in November, 2006.

5. Apprehending that the Hospital was planning to raise a
wall on both sides of the road, obstructing use of the road by the F
~ --"!
public at large, including the appellants, the appellants filed the
aforementioned two suits against the Hospital and Tek Chand
for perpetual injunction in the court of Civil Judge (JD), Dehradun,
restraining the Hospital from raising construction of any nature
in the said property. Applications under Order 39, Rules 1 & 2 G
of the Code of Civil Procedure, 1908 (for short "the Code") were
also filed for grant of interim injunction.
~
'
6. The suits were contested by the Hospital. Taking into
consideration the written statement filed on behalf of the Hospi-
H
ABDUL GAFUR & ANR. v. STATE OF 1149
UTTARAKHAND & ORS. [D.K. JAIN, J.:]

Affidavit,· if any, by 03.04.2007. A
In the meantime, if the Respondents shall raise any
construction that will be at their own risk."
It is against this order of the High Court that this appeal, by
special leave, has been filed. B
9. Mr. Mukul Rohtagi and Mr. P.S. Patwalia, learned se-
nior counsel appearing on behalf of the appellants submitted
that the High Court has committed a manifest error in dismissing
the suits by a cryptic order without taking into consideration the
nature and the purport of the two suits. Learned counsel argued C
that the scope of the Writ Petition filed by the original owner of
the subject land and the suits filed by the appellants was entirely
different inasmuch as in the suits there is no challenge to the ac-
quisition of the piece of land as in the case of the Writ Petition. It
was pointed out that the relief in the suits is confined to the right .D
of the appellants to use the public road laid on the acquired land.
On merit, it was strenuously urged that being a public street, nei-
ther the State nor any one claiming under it could cause any ob-
struction or hindrance in its user by enclosing it with the walls. In
support of the proposition that the land having been acquired for E
construction of a public road, it could not be leased out for private
use, learned counsel placed reliance on a decision of this Court
in Municipal Board, Manglaur Vs. Sri Mahadeoji Maharaj1 as
also on a decision of the Allahabad High Court in Ram Swarup &
Anr. Vs. Municipal Board, Bulandshahr & Anr. 2 It was also al- F
leged that taking advantage of the time gap between the dis-
missal of the suits and ad interim injunction by this Court, the
Hospital has completed the wall on both sides of the road in a
tearing hurry to make the present appeal a fait accompli. It is,
thus, pleaded that the Hospital should be directed to demolish G
the wall and restore status quo ante.
10. Per contra, Mr. Jayant Bhushan, learned senior coun-
A . sel appearing on behalf of the Hospital, while candidly admit-
ting that the manner in which the two suits have been dismissed
by the High Court is totally indefensible, submitted that said suits H
1150 SUPREME COURT REPORTS [2008] 11 S.C.R.
:.

A were nothing but yet another attempt by the original owner, re- J'
spondent No.4 herein, to somehow retain the control on the
acquired land, now a public road, as it would enhance the value
of his remaining land on both sides of the road. Learned coun-
. sel was at pains to assert that the land on both sides of the road
8 was proposed to be developed by respondent No.4 as a com- -1(
mercial venture in connivance with the appellants. It was argued
that if the road is used as a thoroughfare, the very purpose of
acquisition of land for providing free and smooth passage to
those visiting the Hospital, would be defeated.
c 11. Mr. V.K. Jain, learned counsel, appearing on behalf of
the State Government, supporting the stand of the Hospital, sub-
mitted that both the suits being meritless, the High Court was
justified in dismissing them. To buttress the submission that
vexatious and meaningless litigation should be closed at the
D earliest stage, learned counsel placed reliance on a decision
of this Court in T Arivandandam Vs. TV Satyapal & Anr. 3 .
12. Thus, the short question for consideration is whether
the High Court was justified in dismissing the two suits on the
sole ground that it was proposing to examine a similar issue in
E the Writ Petition preferred by the original owner of the land?
13. Section 9 of the Code provides that civil court shall
have jurisdiction to try all suits of a civil nature excepting the
suits of which their cognizance is either expressly or impliedly
F barred. To put it differently, as per Section 9 of the Code, in all
types of civil disputes, civil courts have inherent jurisdiction un- ,.,
less a part of that jurisdiction is carved out from such jurisdic-
tion, expressly or by necessary implication by any statutory pro-
vision and conferred on other Tribunal or Authority. Thus, the
law confers on every person an inherent right to bring a suit of
G
civil nature of one's choice, at one's peril, howsoever frivolous
the claim may be, unless it is barred by a statute.
14. In Smt. Ganga Bai Vs. Vijay Kumar& Ors. 4 , this Court
had observed as under:
H
ABDUL GAFUR & ANR. v. STATE OF 1151
f
UTTARAKHAND & ORS. [D.K. JAIN, J.:]

"There is an inherent right in every person to bring suit of A
a civil nature and unless the suit is barred by statute one
may, at ones peril, bring a suit of one's choice. It is no
answer to a suit, howsoever frivolous the 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 B
.,,,' bars the suit."
15. In Dhannalal Vs. Kalawatibai & Ors. 5 relying on the
afore-extracted observation in Ganga Bai's case (supra), this
Court had held as follows:
c
"Plaintiff is dominus litis, that is, master of, or having
dominion over, the case. He is the person who has carriage
and control of an action. In case of conflict of jurisdiction
the choice ought to lie with the plaintiff to choose the forum
best suited to him unless there be a rule of law excluding
D
access to a forum of plaintiff's choice or permitting
~. recourse to a forum will be opposed to public policy or will
be an abuse of the process of law."
16. It is trite that the rule of pleadings postulate that a plaint
must contain material facts. When the plaint read as a whole E
does not disclose material facts giving rise to a cause of action
which can be entertained by a civil court, it may be rejected in
terms of Order 7, Rule 11 of the Code. Similarly, a plea of bar to
jurisdiction of a civil court has to be considered having regard
to the contentions raised in the plaint. For the said purpose, F
averments disclosing cause of action and the reliefs sought for
therein must be considered in their entirety and the court would
not be justified in determining the qu~stion, one way or the other,
only having regard to the reliefs claimed de'hors the factual aver-
ments made in the plaint. (See: Church of North India Vs.
G
Lavajibhai Ratanjibhai & Ors. 5 )
17. Having considered the matter in the light of the afore-
stated legal position, we are of the opinion that the impugned
order cannot be sustained. It is true that under Section 24 of the
Code, the High Court has jurisdiction to suo motu withdraw a H
1152 SUPREME COURT REPORTS [2008] 11 S.C.R.

~ I
A suit or appeal, pending in any court subordinate to it, to its file t-'

and adjudicate itself on the issues involved therein and dispose
of the same. Unless the High Court decides to transfer the suit
or the appeal, as the case may be, to some other court or the
same court, it is obliged to try, adjudicate and dispose of the ;
.,
B same. It needs little emphasis that the High Court is competent ~

to dispose of the suit on preliminary issues, as contemplated in
Order 14 Rule 1 & 2 of the Code, which may include the issues ~

with regard to maintainability of the suit. If the High Court is con-
vinced that the plaint read as a whole does not disclose any
c cause of action, it may reject the plaint in terms of Order 7 Rule
11 of the Code. As a matter offact, as observed by V.R. Krishna
Iyer, J., in T Arivandandain (supra), 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, the
court should exercise its power"""'. under the said provision. And
D
if clever drafting has created an illusion of a cause of action, it
should be nipped in the bud at the first hearing by examining
the party searchingly under Order X CPC. Nonetheless, the fact >-
remains that the suit has to be disposed of either by the High
Court or by the court~ subordinate to it in a meaningful manner
E as per the procedure prescribed in the Code and not on one's
own whims.
18. In the instant case, as noted above, vide order dated
20th March, 2007, the High Court transferred the two suits and
F the appeals to itself. On being served with a copy of the said
order, the appellants immediately moved an application for re-
call of the said order. In the said application, it was pointed out ,•.

that in the appeals, preferred by the Hospital against the in-
terim injunction granted by the civil judge, argument had been
heard by the district judge and order was to be pronounced on
G
26th March, 2007 but in the meanwhile on 2Qth March, 2007, the
High Court passed the order withdrawing the appeals to itself.
When the transferred case came up for consideration before
),
the High Court on 29th March, 2007, without passing any order
on the application preferred by the appellants for recall of order
H
. ~> .,
ABDUL GAFUR & ANR. v. STATE OF 1153
UTTARAKHAND & ORS. [D.K. JAIN, J.:]

dated 20th March, 2007, the High Court dismissed the suits on A
the aforenoted ground, namely, the issues raised in the suits
were being examined in the Writ Petition. We have no hesita-
tion in holding that the procedure adopted by the High Court is
unknown to law. We are conscious of the fact that the object of
filing of the suits could be a dubious and indirect attempt on thes
part of Tek Chand, respondent No.4, to derive some undue ad-
vantage in connivance with the plaintiffs, yet that was no ground
to dismiss the suits summarily in the aforenoted manner. It must
be kept in mind that one of the fundamental norms of judicial
process is that arguable questions either legal or factual, shouldc
not be summarily dismissed without recording a reasoned or-
der. A mere entertainment of the Writ Petition, to which the ap-
pellants herein were not parties, even if it involved determina-
tion of similar issues, in our opinion, was not a good ground to
dismiss the two suits without granting opportunity to the parties
0
to prove their respective stands. Moreover, the scope of the
Writ Petition and the two suits also seems to be different.
19. On a conspectus of the factual scenario and in view of
the above discussion, the appeal is allowed; the impugned or-
der, dated- 29th March, 2007, is set aside and the two suits and E
the appeal, dismissed in terms of the said order, are restored
to the file of the High Court for fresh adjudication and disposal
in accordance with law. The High Court may also pass appro-
priate orders on the appellant's prayer for restitution, for which
purpose I.A. No.7 of 2007 shall 'stand transferred to the High F
Court. We may clarify that we have not expressed any opinion
on the merits of the two suits or the appeals, which shall be
considered and disposed of on their own merits, uninfluenced
by any observation in this judgment.
20. In the facts and circumstances of the case, the parties G
will bear their own costs.
B.B.B. Appeal allowed.