TMI Blog1990 (1) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... business in 'Goyal Talkies'. Some disputes having arisen between the parties, the said Motilal together with his wife and children filed Civil Suit No. 19A of 1955 on 4.8.1955 in the Court of Civil Judge, Class I, Nagput, against respondent Ratanlal as defendant No. 1, the firm M/s. Damdoolal and Bros. as defendant No. 2 and one Puranmal as defendant No. 3. The suit was for the dissolution of partnership, rendition of accounts and ancillary reliefs. On discovery of the misdescription of defendant No. 2 firm, an application was made by the plaintiff for correction of that misdescription. The misdescription being obvious, the Trial Court allowed the plaintiff's application on 19.8.1955 permitting defendant No. 2 firm to be correctly described as M/s. Ratanlal Damdoolal and Bros. instead of M/s. Damdoolal and Bros. It appears that the correction even though permitted was not actually incorporated in the plaint. However, the parties were not misled in any manner by the misdescription of defendant No. 2 made initially in the plaint which is evident from the fact that defendant No. I Ratanlal who filed the separate written statement in the suit on behalf of defendant N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with effect from 27.4.1959 and the defendant Nos. 1 and 2 were directed to refund to the plaintiff the amount of ₹ 5,470 which was the excess amount paid by the plaintiff to them. Notwithstanding the above facts, defendant Nos. 1 and 2 filed an appeal against the final decree dated 16.11.1959 in the Court of the Extra Assistant Judge, Nagpur which was C.A. No. 413 of 1962 decided on 27.12. 1962. Thereafter, a second appeal No. 293 of 1963 was also filed by these defendants in the High Court which too was dismissed on 2.12.1972. The final decree dated 16.11.1959 based on the compromise which was fully satisfied become final inasmuch as the defendants did not challenge the same by a further appeal to this Court. Thereafter, Civil Suit No. 1699 of 1980 in the Court of Civil Judge, Senior Division, Nagpur, was filed by respondent Ratanlal against the petitioners who are the legal representatives of the aforesaid Motilal assailing the above consent decree after taking the entire benefit thereunder. The reliefs claimed in this suit are for a declaration that the aforesaid final decree dated 16.11. 1959 passed on the basis of the order dated 5.3.1956 in Civil Suit No. 19A of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nullity. He urged only two additional grounds, not pleaded in the existing plaint, which were raised unsuccessfully on behalf of the present respondent in the First Appeal and the Second Appeal against the compromise decree to contend that the suit is triable. He also urged that no specific objection for rejection of the plaint under Order 7 Rule 11 C.P.C. was taken earlier and, therefore, the matter be remanded for a fresh consideration on this basis. To avoid protracting this litigation any longer, we gave opportunity to learned counsel for the respondent to prepare the case on this point. Shri Salve then filed an application for amendment of the plaint on the next day in any attempt to plead the additional grounds on which alone he claimed the suit to be triable. We may first dispose of the application for amendment to the plaint filed by Shri Salve on January 12, 1990 during the course of hearing of the appeal. We do not find any ground to allow this application which apart from being highly belated, is clearly an after-thought for the obvious purpose of averting the inevitable consequence of rejection of the plaint on the ground that it does not disclose any cause of actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed that some fraud, coercion or misrepresentation is played. On the other hand, he says that due to the lapses while deciding the matter, decree passed by the Court below has become a nullity. It is, therefore, clear that the respondent/plaintiff does not challenge validity of the decree dated 16.11.1959 on the ground of fraud, coercion or misrepresentation but merely on the basis of lapses in deciding the earlier suit which have been specifically mentioned in para 6 of the plaint. It is, therefore, only on these limited grounds that the question of maintainability of the present suit has to be decided. We shall, therefore, now refer to the grounds mentioned in para 6 of the plaint which alone are relied on to disclose a cause of action for the suit. The first ground of nullity averred in para 6 of the plaint is that the decree was passed against a non-existent person -- M/s. Damdoolal and Bros. It is not the respondent's case that M/s. Damdoolal and Bros. is a legal entity distinct from M/s. Ratanla Damdoolal and Bros. so that the decree was against another person As earlier stated, in the written-statement filed by respondent Ratanlal, the description of defendant No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt also overlooked this fatal defect. Since the plaint suffers from this fatal defect, the mere issuance of summons by the Trial Court does not require that the trial should proceed even when no triable issue is shown to arise. Permitting the continuance of such a suit is tantamount to licensing frivolous and vexatious litigation. This cannot be done. It being beyond dispute that the plaint averments do no disclose a cause of action, the plaint is liable to be rejected under Order 7 Rule 11, C.P.C. without going into the applicability of Order 23 Rule 3A, C.P.C. to the present suit. Having reached this conclusion, it is unnecessary to adopt the technical course of directing the Trial Court to make the consequential order of rejecting the plaint and, instead, we adopt the practical course of making that order in this proceeding itself to avoid any needless delay in conclusion of this futile litigation. Consequently, the appeal is allowed. The impugned orders of the Trial Court and the High Court holding the suit to be maintainable are set aside and the plaint is rejected under Order 7 Rule 11, C.P.C. The respondent shall pay the appellants' costs throughout. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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