Supreme Court of India
THE CHURCH OF CHRIST CHARITABLE TRUST & EDUCATIONAL CHARITABLE SOCIETY, REPRESENTED BY ITS CHAIRMANversusM/S PONNIAMMAN EDUCATIONAL TRUST REPRESENTED BY ITS CHAIRPERSON/ MANAGING TRUSTEE
- Citation
- 2012 INSC 264
- Decided
- 3 July 2012
- Disposal
- Appeal(s) allowed
- Bench
- P SATHASIVAM
Holding
A plaint that fails to disclose a clear cause of action, does not comply with Order VII Rule 14 and the statutory Forms, and is supported by a power of attorney that does not expressly authorise the sale must be rejected, and the appellate reversal of such rejection is erroneous.
Summary
The Church of Christ Charitable Trust & Educational Charitable Society (appellant) challenged the Madras High Court Division Bench’s reversal of a single judge’s order rejecting the plaint against it in a suit for specific performance filed by M/s Ponniamman Educational Trust (respondent). The Supreme Court examined whether the plaint disclosed a cause of action under Order VII Rule 11 of the Code of Civil Procedure, 1908, and whether the plaintiff had complied with the statutory requirements of Order VII Rule 14 and Forms 47/48, including production of a valid power of attorney. It held that the power of attorney was not expressly authorised to execute a sale deed, the agreement and power of attorney were not produced, and the plaint failed to set out essential facts, thereby lacking a cause of action. The Court also clarified that non‑joinder of a second defendant is not fatal where no relief is claimed against that party, and that a court may reject a plaint at any stage. Consequently, the Division Bench’s reversal was set aside and the single judge’s order restored.
Issues considered
- Whether the plaint discloses a cause of action against the first defendant under Order VII Rule 11 CPC.
- Whether the power of attorney executed by the second defendant sufficiently authorises him to sell the property on behalf of the first defendant.
- Whether the non‑joinder of the second defendant is a ground for rejecting the plaint.
- Whether the court may exercise its power under Order VII Rule 11 at any stage of the suit.
- Whether specific performance is discretionary under Section 20 of the Specific Relief Act, 1963 in the present facts.
Legislation cited
- Code of Civil Procedure, 1908s. Order VII Rule 1, s. Order VII Rule 11, s. Order VII Rule 14, s. Order VII Rule 14(1), s. Order VII Rule 14(2), s. Order VII Rule 6
- Powers of Attorney Act, 1882s. Section 1-A, s. Section 2
- Specific Relief Act, 1963s. Section 20
Subjects
specific performancepower of attorneycause of actionOrder VII Rule 11rejection of plaintnon‑joinder of partydiscretionary jurisdictioncivil procedurespecific relief act
Judgment
[2012] 6 S.C.R. 404
A THE CHURCH OF CHRIST CHARITABLE TRUST &
EDUCATIONAL CHARITABLE SOCIETY, REPRESENTED
BY ITS CHAIRMAN
v.
M/S PONNIAMMAN EDUCATIONAL TRUST
B REPRESENTED BY ITS CHAIRPERSON/ MANAGING
TRUSTEE
(Civil Appeal No. 4841 of 2012)
JULY 03, 2012
C [P. SATHASIVAM AND J. CHELAMESWAR, JJ.]
CODE OF CIVIL PROCEDURE, 1908:
0. 7, r.1 read with rr. 14(1), 14(2) and Forms 47 and 48
D in Appendix A - Suit for specific performance - Agreement of
sale between plaintiff and second defendant - Plaint stating
that second defendant as power of attorney-holder as also
agreement holder of first defendant executed agreement of
sale - Application for rejection of plaint as against first
E defendant - Held: The plaintiff-respondent to get a decree for
specific performance has to prove that there is a subsisting
agreement in his favour and the second defendant has the
necessary authority under the power of attorney - Neither the
documents were filed nor terms thereof set out in the plaint -
In view of the shortfall in the plaint averment and non-
F compliance of statutory provisions, the single Judge of the
High Court has correctly concluded that in the absence of any
cause of action shown as against the appellant-first defendant,
the suit cannot be proceeded either for specific performance
or for the recovery of money advanced which according to the
G plaintiff was given to the second defendant in the suit and
rightly rejected the plaint as against the first defendant -
Cause of action.
0. 7, r. 11 - Rejection of plaint - Suit for specific
H 404
CHURCH OF CHRIST CHARITABLE TRUST & EDU. CHARITABLE 405
SOCIETY v. PONNIAMMAN EDU. TRUST
performance - Power of attorney - Held: A power of attorney A
has to be strictly construed - In order to agree to sell or effect
a sale by a power of attorney, it should also expressly
authorize the power to the agent to execute sale agreement!
sale deed i.e., (~) to present the document before the
Registrar; and (b) toI admit execution of the document before B
the Registrar - Deeds and documents.
0. 7, r. 11 - Rejection of plaint - Held: The power under
0. 7 r. 11 can be ~ercised at any stage of the suit either before
registering the pfaint or after the issuance of summons to the C
defendants or at any time before the conclusion of the trial -
In order to consider 0. 7, r. 11, the court has to look into the
averments in the plaint and the averments in the written
statement are immaterial.
0. 7, r. 11 - Application for rejection of plaint - Non-joinder D
of party - Held: To reject the plaint even before registration of
the plaint on one or more grounds mentioned in 0. 7, r. 11,
the other defendants need not necessarily be heard at all as
it does not affect their rights - In the instant case, second
defendant is not a necessary party nor does the applicant-first E
defendant seek any relief against him - Besides, the plea as
to the non-joinder of party cannot be raised for the first time
before Supreme Court if the same was not raised before the
trial court and has not resulted in failure of justice.
SPECIFIC RELIEF ACT, 1963: F
s. 20 - Held: The jurisdiction to grant specific
performance is discretionary - In view of the conduct of the
plaintiff, bereft of required materials as mandated by the
statutory provisions, the plaint is liable to be rejected, as the G
cause of action pleaded in the plaint is vitiated - Code of Civil
Procedure, 1908 - 0. 7, r. 11.
The appellant Society-1st defendant, on 9.1.1990,
entered into an agreement of sale of certain property in
H
406 SUPREME COURT REPORTS [2012] 6 S.C.R.
A favour of defendant no. 2. On 19.10.1990, the appellant-
Society executed a registered power of attorney in favour
of defendant no. 2 for limited purpose enabling him to
represent the Society before the authorities. However, the
said power of attorney was revoked on 15.10.1991 by a
B registered document. Since defendant no. 2 failed to
comply with the commitments, the appellant-Society, on
19.11.1991 cancelled the agreement of sale dated
7.1.1990. The suit filed by defendant no. 2 challenging the
said cancellation was withdrawn in the year 2006.
c Meanwhile, on 4.8.2001, defendant no. 2 entered into a
Memorandum of Understanding with the respondent-
plaintiff to sell certain portion of property as the
agreement-holder and power of attorney agent of the
appellant-Society. On 24.11.2004, the respondent-plaintiff
filed C.S. No. 115 of 2005 for specific performance of
0
agreement dated 4.8.2001 and also filed an application for
interim injunction. Defendant no. 1-appellant Society filed
an application under 0.7, r.11 CPC for rejection of the
plaint. The single Judge of the High Court rejected the
E plaint as regards the plaintiff-Society (defendant no.1).
However, the Division Bench allowed the appeal against
rejection of the plaint. Aggrieved, defendant no. 1-Society
filed the instant appeal.
Allowing the appeal, the Court
F
HELD: 1.1 It is clear from the provisions of 0.7, r. 11
of the Code of Civil Procedure, 1908 that where the plaint .
1
does not disclose a cause of action, or there are other
defects as mentioned in r.11 itself, the court has no othel" ·
G option except to reject the same. Further, the power ·~
under 0.7 r. 11 can be exercised at any stage of the suit
either before registering the plaint or after the issuance
of summons to the defendants or at any time before the
conclusion of the trial. In order to consider 0. 7, r. 11, the
court has to look into the averments in the plaint and the
H
CHURCH OF CHRIST CHARITABLE TRUST & EDU. CHARITABLE 407
SOCIETY v. PONNIAMMAN EDU. TRUST
averments in the written statement are immaterial. If the A
allegations are vexatious and meritless and not
disclosing a clear right or material(s) to sue, it is the duty
of the trial Judge to exercise his power under 0. 7 r.11.
[para 6) [415-H; 416-A-B; F-G; 417-F-G)
B
T. Arivandandam vs. T. V. Satyapa/ & Anr., 1978 (1) SCR
742 = (1977) 4 sec 467 : relied on
Raptakos Brett & Co. Ltd. vs. Ganesh Property 1998 (1)
Suppl. SCR 485 = (1998) 7 SCC 184 and Mayar (H.K.) Ltd.
and Others vs. Owners & Parties, Vessel M. V. Fortune C
Express and Others 2006 (1) SCR 860 = (2006) 3 SCC 100
referred to.
1.2 While scrutinizing the plaint averments, it is the
bounden duty of the trial court to ascertain the materials o
for cause of action. The cause of action is a bundle of
facts which taken with the law applicable to them gives
the plaintiff the right to relief against the defendant. Every
fact which is necessary for the plaintiff to prove to enable
him to get a decree should be set out in clear terms. A E
cause of action must include some act done by the
defendant since in the absence of such an act no cause ·
of action can possibly accrue. [para 8) [417-H; 418-A-B]
A. B. C. Laminart Pvt. Ltd. & Anr. vs. A. P. Agencies,
. Sa/em 1989 (2) SCR 1 = (1989) 2 SCC 163; Bloom Dekor F
Ltd. vs. Subhash Himatla/ Desai & Ors. 1994 (3) Suppl. SCR
322 = (1994) 6 sec 322 - relied on.
1.3 Order 7, r. 14 mandates that the plaintiff has to
produce the documents on which the cause of action is G
based. In paragraph 4 of the plaint, it is alleged that the
2nd defendant as agreement holder and also as the
registered power of attorney holder of the 1st defendant
executed the agreement of sale. Therefore, the plaintiff
has t& produce the power of attorney when the plaint is
H
408 SUPREME COURT REPORTS [2012] 6 S.C.R.
A presented by him and if he is not in possession of the
same, he has to state as to in whose possession it is. In
the case on hand, only the agreement between the
plaintiff and the second defendant has been filed along
with the plaint. If he is not in possession of the power of
B attorney, it being a registered document, he should have
filed a registration copy of the same. There is no
explanation even for not filing the registration copy of the
power of attorney. Instead of explaining in whose custody
the power of attorney is, the plaintiff has simply stated
c 'Nil'. It clearly shows non-compliance of 0. 7, r. 14(2). [419-
F-H; 420-A-C]
1.4 Neither the documents were filed along with the
plaint nor the terms thereof have been set out in the plaint.
The two documents were to be treated as part of the
D plaint as being the part of the cause of action. It is settled
law that where a document is sued upon and its terms
are not set out in the plaint but referred to in the plaint,
the said document gets incorporated by reference in the
plaint. [para 13] [420-D-E]
E
U.S. Sasidharan vs. K. Karunakaran and Another 1989
(3) SCR 958 = (1989) 4 SCC 482 and Manohar Joshi vs.
Nitin Bhaurao Patil and Another 1995 (6) Suppl. SCR 421 =
(1996) 1 sec 169 - referred to.
F 1.5 It is settled that a power of attorney has to be
strictly construed. In order to agree to sell or effect a sale
by a power of attorney, it should also expressly authorize
the power to the agent to execute the sale agreement/
sale deed i.e., (a) to present the document before the
G Registrar; and (b) to admit execution of the document
before the Registrar. A perusal of the power of attorney,
in the instant case, shows that in only authorizes certain
specified acts but not any act authorizing entering into an
agreement of sale or to execute sale deed or admit
H execution before the Registrar. [para 14] [420-G-H; 421-A]
CHURCH OF CHRIST CHARITABLE TRUST &EDU. CHARITABLE 409
SOCIETY v. PONNIAMMAN EDU. TRUST
Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana A
and Another 2011 (11) SCR 848 = (2012) 1 SCC 656 -
referred to.
1.6 Further, though the plaint avers that the 2nd
defendant is the agreement holder of the 1st defendant, 8
but the said agreement is not produced, nor the date of
agreement is given in the plaint. In terms of Form Nos.
47 and 48 of Appendix A, failure to mention the date
violates the statutory requirement and if the date is one
which attracts the bar of limitation, the plaint has to C
conform to 0. 7, r. 6 and specifically plead the ground
upon which exemption from limitation is claimed. It was
rightly pointed out that in order to get over the bar of
_limitation all the required details have been omitted. [para
15] [422-E-G]
D
1.7 Thus, the plaint has not shown a complete cause
of action of privity of contract between the plaintiff and
the 1st defendant or on behalf of the 1st defendant. Under
s. 20 of the Specific Relief Act, 1963, it is settled that the
jurisdiction to grant specific performance is E
discretionary. In view of the conduct of the plaintiff, bereft
of required materials as mandated by the statutory
provisions, the plaint is liable to be rejected at this stage
itself as the cause of action pleaded in the plaint is
vitiated. [para 16-17] [423-A-B; D-E, G-H] F
Mohammadia Cooperative Building Society Ltd. vs.
Lakshmi Srinivasa Cooperative Building Society Ltd. and
=
Others 2008 (7) SCR 762 (2008) 7 sec 31 o - relied on.
Sirigineedi Subbarayadu vs. Kopanathi Tatayya, 1937 G
Madras Weekly Notes 1158, 1159.; Ramaswamy Gounder
vs. K.M. Venkatachalam 1976(1) Madras Law Journal 243,
248, 249 - referred to.
H
410 SUPREME COURT REPORTS [2012] 6 S.C.R.
A 2.1 To reject the plaint even before registration of the
plaint on one or more grounds mentioned in 0. 7, r. 11 of
the Code, the other defendants need not necessarily be
heard at all as it does not affect their rights. A plea as to
the non-joinder of the party cannot be raised for the first
B time before this Court if the same was not raised before
the trial court and has not resulted in failure of justice.
Besides, in the case on hand, the application for rejection
of the plaint of the appellant-1st defendant seeks no relief
against the respondent-2nd defendant. It is settled legal
c position that a party against whom no relief is claimed in
the application is not a necessary party at all. [para 17-
18] [423-H; 424-A-D-E; G-H]
Saleem Bhai & Ors. vs. State of Maharashtra and Others
2002 (5) Suppl. SCR 491 = (2003) 1 SCC 557; State of U.P.
D vs. Ram Swarup Saroj (2000) 3 SCC 699 - relied on.
2.2 The appellant- 1st defendant is not seeking
rejection of the plaint in part., but has prayed for rejection
of the plaint as a whole for the reason that it does not
E disclose a cause of action and not fulfilling the statutory
provisions. In addition to the same, it is brought to the
notice of this Court that this contention was not raised
before the High Court. [para 20] [425-F-G]
F Roop Lal Sathi vs. Nachhattar Singh Gill 1983 (1) SCR
702 = (1982) 3 sec 487 - held inapplicable.
2.3 In view of the shortfall in the plaint averments,
statutory provisions, namely, 0. 7, rr. 11, 14(1) and 14(2)
and Form Nos. 47 and 48· in Appendix A of the Code
G which are also statutory in nature, this Court holds that
the single Judge of the High Court has correctly
concluded that in the absence of any cause of action
shown as against the appellant-1st defendant, the suit
cannot be proceeded either for specific performance or
H for the recovery of money advanced, which according to
CHURCH OF CHRIST CHARITABLE TRUST & EDU. CHARITABLE 411
SOCIETY v. PONNIAMMAN EDU. TRUST
the plaintiff was given to the 2nd defendant in the suit, A
and rightly rejected the plaint as against the 1st
defendant. Unfortunately, the Division bench failed to
consider all those relevant aspects and erroneously
reversed the decision of the single Judge. Therefore, the
judgment and order passed by the Division Bench of the B
High Court is set aside and the order of the single Judge
restored. [para 21) [425-H; 426-A-C]
Case Law Reference:
2002 (5) Suppl. SCR 491 relied on para 6 c
1998 (1) Suppl. SCR 485 relied on para 6
2006 (1) SCR 860 relied on para 6
1978 (1) SCR 742 relied on para 7
D
1989 (2) SCR 1 relied on para 9
1994 ( 3) Suppl. SCR 322 relied on para 10
1989 (3) SCR 958 referred to para 13
E
1995 (6) Suppl. SCR 421 referred to para 13
2011 (11) SCR 848 referred to para 14
1937 Madras Weekly referred to para 16
Notes 1158, 1159 F
1976(1) Madras Law referred to para 16
Journal 243, 248, 249
2008 (7) SCR 762 relied on para 16
(2000) 3 sec 699 referred to PC!ra 17 G
1983 (1) SCR 702 held inapplicable para 20
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4841 of 2012.
H
412 SUPREME COURT REPORTS [2012] 6 S.C.R.
A From the Judgment & Order dated 16.08.2011 of the High
Court of Judicature at Madras in O.S.A. No. 100 of 2006.
Ranjit Kumar, Nalini Chidambaram, Mukul Rohatgi, L.
Nageshwar Rao, V. Kanagaraj, R. Balasubramaniam, R.
B Krishnaswamy, V. Ramasubramanian, V. Balachandran, Ashish
Mohan, T. Meikandan, K.K. Mohan, Geetanjali Mohan, T. Harish
Kumar, P. Prasanth for the appearing parties.
The Judgment of the Court was delivered by
C P. SATHASIVAM, J. 1. Leave granted.
2. This appeal is directed against the final judgment and
order dated 16.08.2011 passed by the High Court of judicature
at Madras in O.S.A. Nos.100-102 of 2006 whereby the Division
Bench of the High Court while rejecting OSA Nos. 101 and 102
0 of 2006 allowed the appeal being OSA No. 100 of 2006 filed
by the respondent herein in respect of the rejection of the plaint
against the appellant herein (1st defendant in the suit) by the
learned single Judge of the High Court.
E 3. Brief facts:
(a) On 07.01.1990, the appellant-Society (first defendant),
the owner of the property situated at Door No. 35, Lock Street,
Kottur, Chennai entered into an Agreement for Sale of the
F property in favour of one S. Velayutham - 2nd defendant in the
suit on the condition that the transaction should be completed
within 6 months after obtaining clearance from Income Tax and
other departments and also received an amount of Rs. 5 lakhs
as an advance. On 19.10.1990, the 1st defendant-Society
G executed a registered power of attorney in favour of the 2nd
defendant.limited for the purpose of empowering him to
represent the Society before the statutory authorities. On
15.10.1991, the 1st defendant-Society revoked the registered
power of attorney executed in favour of the 2nd defendant by a
registered document alleging various reasons. On 19.11.1991,
H as the 2nd defendant failed to comply with the commitments
CHURCH OF CHRIST CHARITABLE TRUST & EDU. CHARITABLE 413
SOCIETY v. PONNIAMMAN EDU. TRUST [P. SATHASIVAM, J.]
made, the 1st defendant-Society cancelled the agreement for A
sale dated 07 .01.1990.
(b) Questioning the said cancellation, the 2nd defendant
instituted C.S. No. 1576 of 1991 against the 1st defendant-
Society before the High Court of Madras for specific 8
performance of the agreement dated 07 .01.1990. In the said
suit, an injunction was granted restraining the 1st defendant-
Society from alienating the property. In the year 2006, the said
suit was withdrawn by the 2nd defen~ant.
(c) Mis Karthik Granites Pvt. Ltd., a sister concern of the C
respondent herein filed C.S. No. 915 of 1994 on the file of the
High Court for specific performance of the agreement to sell
the larger extent of 56 grounds based on an alleged agreement
entered into with the 2nd defendant which was dismissed as
settled on the basis of the Memorandum of Understanding D
(MoU) dated 13.02.1997.
(d) Again on 04.08.2001, a Memorandum of
Understanding (MoU) was entered into between the respondent
herein and 2nd defendant in which 2nd defendant agreed to E
sell the remaining portion of the property, viz., 28 grounds and
1952 sq. ft. to the respondent, sister concern of Mis Karthik
Granites Pvt. Ltd. as the agreement holder and power of
attorney agent of the appellant. On 24.11.2004, the plaintiff-
respondent herein filed C.S. No. 115 of 2005 for specific
performance of the agreement dated 04.08.2001. The plaintiff-
F
respondent also filed O.A. No. 132 of 2005 in the said suit
praying for an interim injunction restraining the defendants from,
in any way, dealing with or alienating the suit property pending
disposal of the suit. The 1st defendant therein-the Society also
filed Application No. 3560 of 2005 under Order VII Rule 11 of G
the Code of Civil Procedure, 1908 (for short "the Code") praying
for rejection of the plaint. On 18.01.2006, the plaintiff-respondent
filed Application No.179 of 2006 for amendment of .the plaint.
(e) The learned single Judge of the High Court rejecte~ H
414 SUPREME COURT REPORTS [2012] 6 S.C.R.
A the plaint insofar as 1st defendant is concerned and directed
that the suit can be proceeded against the 2nd defendant. The
applications bearing Nos. O.A.No.132 of 2005 and 179 of
2006 filed by the plaintiff-respondent for interim injunction and
amendment of the plaint were also rejected by the learned
B single Judge.
(f) Challenging the said orders, the plaintiff-respondent filed
appeals before the Division Bench of the High Court. By
impugned order dated 16.08.2011, the Division Bench while
dismissing the appeals against the order rejecting the
C applications for amendment and for interim injunction, allowed
the appeal against the rejection of the plaint.
(g) Aggrieved by the said judgment insofar as it allowed
the appeal against the rejection of the plaint, the appellant-
D Society (1st defendant) has filed this appeal by way of special
leave petition before this Court.
4. Heard Mr. K. Parasaran and Mr. Ranjit Kumar, learned
senior counsel for the appellant and Mr. Mukul Rohatgi, learned
E senior counsel for the respondent.
Points for consideration:
5. The points for consideration in this appeal are:
a) whether the learned single Judge of the High Court was
-F
justified in ordering rejection of the plaint insofar as the first
defendant (appellant herein) is concerned; and
b) whether the Division Bench of the High Court was right
in reversing the said decision?
G
6. Since the appellant herein, as the first defendant before
the trial Judge, filed application under Order VII Rule 11 of the
Code for rejection of the plaint on the ground that it does not
show any cause of action against him, at !he foremost, it is
H useful to refer the relevant provision:
CHURCH OF CHRIST CHARITABLE TRUST & EDU. CHARITABLE 415
SOCIETY v. PONNIAMMAN EDU. TRUST [P. SATHASIVAM, J.]
Order VII Rule 11 of the Code: A
"11. Rejection of plaint- The plaint shall be rejected in the
following cases:-
(a) where it does not disclose a cause of action;
B
(b) where the relief claimed is undervalued, and the plaintiff,
on being required by the Court to correct the valuation
within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint C
is returned upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the
Court, fails to do so;
(d) where the suit appears from the statement in the plaint D
to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provision of E
Rule9:
Provided that the time fixed by the Court for the correction
of the valuation or supplying of the requisite stamp-paper
shall not be extended unless the Court, for reasons to be
recorded, is satisfied that the plaintiff was prevented by F
any cause of an exceptional nature for correcting the
valuation or supplying the requisite stamp-paper, as the
case may be, within the time fixed by the Court and that
refusal to extend such time would cause grave injustice to
the plaintiff." G
It is clear from the above that where the plaint does not disclose
a cause of action, the relief claimed is undervalued and not
corrected within the time allowed by the Court, insufficiently
stamped and not rectified within the time fixed by the Court,
H
416 SUPREME COURT REPORTS [2012] 6 S.C.R.
A barred by any law, failed to enclose the required copies and
the plaintiff fail to comply with the provisions of Rule 9, the Court
has no other option except to reject the same. A reading of the
above provision also makes it clear that power under Order VII
Rule 11 of the Code can be exercised at any stage of the suit
B either before registering the plaint or after the issuance of
summons to the defendants or at any time before the
conclusion of the trial. This position was explained by this Court
in Saleem Bhai & Ors. vs. State of Maharashtra and Others,
(2003) 1 SCC 557, in which, while considering Order VII Rule
c 11 of the Code, it was held as under:
"9. A perusal of Order VII Rule 11 CPC makes it clear that
the relevant facts which need to be looked into for deciding
an application thereunder are the averments in the plaint.
The trial court can exercise the power under Order VII Rule
D 11 CPC at any stage of the suit - before registering the
plaint or after issuing summons to the defendant at any time
before the conclusion of the trial. For the purposes of
deciding an application under clauses (a) and (d) of Rule
11 of Order VII CPC, the averments in the plaint are
E germane; the pleas taken by the defendant in the written
statement would be wholly irrelevant at that stage,
therefore, a direction to file the written statement without
deciding the application under Order VII Rule 11 CPC
cannot but be procedural irregularity touching the exercise
F of jurisdiction by the trial court ....... "
It is clear that in order to consider Order VII Rule 11, the Court
has to look into the averments in the plaint and the same can
be exercised by the trial Court at any stage of the suit. It is also
G clear that the averments in the written statement are immaterial
and it is the duty of the Court to scrutinize the averments/pleas
in the plaint. In other words, what needs to be looked into in
deciding such an application are the averments in the plaint.
At that stage, the pleas taken by the defendant in the written
statement are wholly irrelevant and the matter is to be decided
H only on the plaint averments. These principles have been
CHURCH OF CHRIST CHARITABLE TRUST & EDU. CHARITABLE 417
SOCIETY v. PONNIAMMAN EDU. TRUST [P. SATHASIV~M. J.]
reiterated in Raptakos Brett & Co. Ltd. vs. Ganesh Property A
(1998) 7 SCC 184 and Mayar (H.K.) Ltd. and Others vs.
Owners & Parties, Vessel M. V. Fortune Express and Others
(2006) 3 sec 1oo.
7. It is also useful to refer the judgment in T. Arivandandam 8
vs. T. V. Satyapal & Anr., (1977) 4 SCC 467, wherein while
considering the very same provision, i.e. Order VII Rule 11 and
the duty of the trial Court in considering such ~pplication, this
Court has reminded the trial Judges witt:i the following
observation:
c
"5 ........... The learned Munsif must remember that if on a
meaningful - for formal - reading of the plaint it is manifestly
vexatious, and meritless, in the sens111 of not disclosing a
clear right to sue, he should exerci~e his power under
Order VII, Rule 11 C.P.C. taking pare to see that the D
ground mentioned therein is fulfilled. And if clever drafting
has created the illusion of a cause of action nip it in the
bud at the first hearing by examining the party searchingly
under Order X, C.P.C. An activist Judge is the answer to
irresponsible law suits. The trial Courts would insist E
imperatively on examining the party at the first hearing so
that bogus litigation can be shot down at the earliest stage.
The Penal Code is also resourceful enough to meet such
men, (Cr.XI) and must be triggered against them ..... "
It is clear that if the allegations are vexatious and meritless and F
not disclosing a clear right or material(s) to sue, it is the duty
of the trial Judge to exercise his power under Order VII Rule
11. If clever drafting has created the illusion of a cause of action
as observed by Krishna Iyer J., in the above referred decision,
it should be nipped in the bud at the first hearing by examining G
the parties under Order X of the Code.
Cause of Action:
8. While scrutinizing the plaint averrnents, it is the bounden
H
418 SUPREME COURT REPORTS [2012] 6 S.C.R.
A duty of the trial Court to ascertain the materials for cause of
action. The cause of action is a bundle of facts which taken with
the law applicable to them gives the plaintiff the right to relief
against the defendant. Every fact which is necessary for the
plaintiff to prove to enable him to get a decree should be set
B out in clear terms. It is worthwhile to find out the meaning of the
words "cause of action". A cause of action must include some
act done by the defendant since in the absence of such an act
no cause of action can possibly accrue.
9. In A.B.C. Laminart Pvt. Ltd. & Anr. vs. A.P. Agencies,
C Sa/em (1989) 2 SCC 163, this Court explained the meaning
of "cause of action" as follows:
"12. A cause of action means every fact, which if traversed,
it would be necessary for the plaintiff to prove in order to
D support his right to a judgment of the court. In other words,
it is a bundle of facts which taken with the law applicable
to them gives the plaintiff a right to relief against the
defendant. It must include some act done by the defendant
since in the absence of such an act no cause of action can
E possibly accrue. It is not limited to the actual infringement
of the right sued on but includes all the material facts on
which it is founded. It does not comprise evidence
necessary to prove such facts, but every fact necessary for
the plaintiff to prove to enable him to obtain a decree.
F Everything which if not proved would give the defendant a
right to immediate judgment must be part of the cause of
action. But it has no relation whatever to the defence which
may be set up by the defendant nor does it depend upon
the character of the relief prayed for by the plaintiff."
G 10. It is useful to refer the judgment in Bloom Dekor Ltd.
vs. Subhash Himatlal Desai & Ors. (1994) 6 SCC 322, wherein
a three Judge Bench of this Court held as under:
"28. By "cause of action" it is meant every fact, which, if
H traversed, it would be necessary for the plaintiff to prove
CHURCH OF CHRIST CHARITABLE TRUST & EDU. CHARITABLE 419
SOCIETY v. PONNIAMMAN EDU. TRUST [P. SATHASIVAM, J.]
in order to support his right to a judgment of the Court, A
(Cooke v. Gill, 1873 LR 8 CP 107). In other words, a
bundle of facts which it is necessary for the plaintiff to prove
in order to succeed in the suit."
It is mandatory that in order to get relief, the plaintiff has to aver 8
·all material facts. In other words, it is necessary for the plaintiff
to aver and prove in order to succeed in the suit.
Forms 47 and 48 of Appendix A of the Code
11. Mr. K. Parasaran, learned senior counsel by taking us C
through Form Nos. 47 and 48 of Appendix A of the Code which
relate to suit for specific performance submitted that inasmuch
as those forms are statutory in nature with regard to the claim
filed for the relief for specific performance, the Court has to be
satisfied that the plaint discloses a cause of action. In view of o
Order VII Rule 11 (a) and 11 (d), the Court has to satisfy that the
plaint discloses a cause of action and does not appear to be
barred by any law. The statutory forms require the date of
agreement to be mentioned to reflect that it does not appear
to be barred by limitation. In addition to the same, in a suit for E
specific performance, there should be an agreement by the
defendant or by a person duly authorized by a power of attorney
executed in his favour by the owner.
12. In the case on hand, the plaintiff-respondent to get a
decree for specific performance has to prove that there is a F
subsisting agreement in his favour and the second defendant
has the necessary authority under the power of attorney. Order
VII Rule 14 mandates that the plaintiff has to produce the
documents on which the cause of action is based, therefore,
he has to produce the power of attorney when the plaint is G
presented by him and if he is not in· possession of the same,
he has to state as to in whose possession it is. In the case on
hand, only the agreement between the plaintiff and the second
defendant has been filed along with the plaint under Order VII
Rule 14(1). As rightly pointed out by the learned senior counsel H
420 SUPREME COURT REPORTS [2012] 6 S.C.R.
A for the appellant, if he is not in possession of the power of
attorney, it being a registered document, he should have filed
a registration copy of the same. There is no such explanation
even for not filing the registration copy of the power of attorney.
Under Order VII Rule 14(2) instead of explaining in whose
B custody the power of attorney is, the plaintiff has simply stated
'Nil'. It clearly shows non-compliance of Order VII Rule 14(2).
13. In the light of the controversy, we have gone through
all the averments in the plaint. In paragraph 4 of the plaint, it is
C alleged that the 2nd defendant as agreement holder of the 1st
defendant and also as the registered power of attorney holder
of the 1st defendant executed the agreement of sale. In spite
of our best efforts, we could not find any particulars showing
as to the documents which are referred to as "agreement
holder''. We are satisfied that neither the documents were filed
D along with the plaint nor the terms thereof have been set out in
the plaint. The abovementioned two documents were to be
treated as part of the plaint as being the part of the cause of
action. It is settled law that where a document is sued upon and
its terms are not set out in the plaint but referred to in the plaint,
E the said document gets incorporated by reference in the plaint.
This position has been reiterated in U.S. Sasidharan vs. K.
Karunakaran and Another (1989) 4 SCC 482 and Manohar
Joshi vs. Nitin Bhaurao Patil and Another (1996) 1 SCC 169.
F Power of Attorney:
14. Next, we have to consider the power of attorney. It is
settled that a power of attorney has to be strictly construed. In
order to agree to sell or effect a sale by a power of attorney,
the power should also expressly authorize the power to agent
G to execute the sale agreement/sale deed i.e., (a) to present the
document before the Registrar; and (b) to admit execution of
the document before the Registrar. A perusal of the power of
attorney, in the present case, only authorizes certain specified
acts but not any act authorizing entering into an agreement of
H sale or to execute sale deed or admit execution before the
CHURCH OF CHRIST CHARITABLE TRUST & EDU. CHARITABLE 421
SOCIETY v. PONNIAMMAN EDU. TRUST [P. SATHASIVAM, J.]
Registrar. In a recent decision of this Court in Suraj Lamp and A
Industries Pvt. Ltd. vs. State of Haryana and Another (2012)
1 sec 656, the scope of power of attorney has been explained
in the following words:
"20. A power of attorney is not an instrument of transfer in
B
regard to any right, title or interest in an immovable
property. The power of attorney is creation of an agency
whereby the grantor authorises the grantee to do the acts
specified therein, on behalf of grantor, which when
executed will be binding on the grantor as if done by him C
(see Section 1-A and Section 2 of the Powers of Attorney
Act, 1882). It is revocable or tesminable at any time unless
it is made irrevocable in a manner known to law. Even an
irrevocable attorney does not have the effect of transferring
title to the grantee.
D
21. In State of Rajasthan v. Basant Nahata, (2005)
12 SCC 77. this Court held: (SCC pp. 90 & 101, paras
13 & 52)
"13. A grant of power of attorney is essentially E
governed by Chapter X of the Contract Act. By reason of
a deed of power of attorney, an agent is formally appointed
·to act for the principal in one transaction or a series of
transactions or to manage the affairs of the principal
generally conferring necessary authority upon another
person. A deed of power of attorney is executed by the F
principal in favour of the agent. The agent derives a right
to use his name and all acts, deeds and things ,done by
him and subject to the limitations contained in the said
deed, the same shall be read as if done by the donor. A
power of attorney is, as is well known, a document of G
convenience.
* * *
52. Execution of a power of attorney in terms of the. H
422 SUPREME COURT REPORTS [2012) 6 S.C.R.
A provisions of the Contract Act as also the Powers of
Attorney Act is valid. A power of attorney, we have noticed
hereinbefore, is executed by the donor s9 as to enable the
donee to act on his behalf. Except in caJ)es where power
of attorney is coupled with interest, it is revocable. The
B donee in exercise of his power under such power of
attorney only acts in place of the donor subject of course
to the powers granted to him by reason thereof. He cannot
use the power of attorney for his own benefit. He acts in a
fiduciary capacity. Any act of infidelity or breach of trust is
c a matter between the donor and the donee."
An attorney-holder may however execute a deed of
conveyance in exercise of the power granted under the
power of attorney and convey title on behalf of the granter."
D 15. It is clear that from the date the power of attorney is
executed by the principal in favour of the agent and by virtue of
the t.erms the agent derives a right to use his name and all acts,
deeds and things done by him are subject to the limitations
contained in the said deed. It is further clear that the power of
E attorney holder executed a deed of conveyance in exercise of
the power granted under it and conveys title on behalf of the
granter. In the case on hand, though the plaint avers that the
2nd defendant is the agreement holder of the 1st defendant,
the said agreement is not produced. It was also pointed out that
F the date of agreement is also not given in the plaint. We have
already mentioned Form Nos. 47 and 48 of Appendix A and
failure to mention date violates the statutory requirement and if
the date is one which attracts the bar of limitation, the plaint
has to conform to Order VII Rule 6 and specifically plead the
G ground upon which exemption from limitation is claimed. It was
rightly pointed out on the side of the appellant that in order to
get over the bar of limitation all the required details have been
omitted.
Relief of Specific Performance is discretionary:
H
CHURCH OF CHRIST CHARITABLE TRUST & EDU. CHARITABLE 423
SOCIETY v. PONNIAMMAN EDU. TRUST [P. SATHASIVAM, J.)
16. Under Section 20 of the Specific Relief Act, 1963, it A
is settled that the jurisdiction to grant specific performance is
discretionary. The above position has been reiterated by the
Division Bench of the Madras High Court even in 1937 vide
Sirigineedi Subbarayadu vs. Kopanathi Tatayya, 1937
Madras Weekly Notes 1158, 1159. The same view has been B
reiterated once again by the Madras High Court in
Ramaswamy Gounder vs. K.M. Venkatacha/am 1976(1)
Madras Law Journal 243, 248, 249 paras 11-13. The similar
view has been reiterated by this Court in Mohammadia
Cooperative Building Society Ltd. vs. Lakshmi Srinivasa c
Cooperative 81Ji/ding Society Ltd. and Others (2008) 7 SCC
310.
Non-joinder of Defendant No. 2 in the application filed
under Order VII Rule 11
D
17. In view of the conduct of the plaintiff, bereft of required
materials as mandated by the statutory provisions, the plaint
is liable to be rejected at this stage itself as the cause of action
pleaded in the plaint is vitiated. Learned senior counsel for the
respondent vehemently contended that irn'ismuch as in the E
application for rejection of plaint, the 1st defendant has not
impleaded the 2nd defendant, the said application is liable to
be dismissed on the ground of non-joinder of the 2nd
defendant, who is a necessary party. On the other hand, learned
senior counsel for the appellant submitted that 2nd defendant F
is not-a necessary party to the application for rejection of plaint
and according to him non-joinder of the 2nd defendant does
not affect the merit of the application as the plaintiff alone is a
necessary party to the application for rejection of plaint. The
stand taken by the appellant, who has filed the application for G
rejection of the plaint, is sustainable and acceptable. We have
already adverted to the averments in the plaint and we have
held that the plaint has not shown a complete cause of action
of privity of contract between the plaintiff and the first defendant
or on behalf of the 1st defendant. To reject the plaint even
H
424 SUPREME COURT REPORTS [2012] 6 S.C.R.
A before registration of the plaint on one or more grounds
mentioned in Order VII Rule 11 of the Code, the other
defendants need not necessarily be heard at all as it does not
affect their rights. As a matter of fact, this Court in Saleem Bhai
(supra) held that the plaint can be rejected even before the
B issuance of summons. This Court has taken a view that the trial
Court can exercise its power under Order VII Rule 11 of the
Code at any stage of the suit i.e. before registering the plaint
or after issuance of summons to the defendants or at any time
before the conclusion of the trial. We respectfully agree with the
c said view and reiterate the same. On the other hand, when the
plaintiff itself persists in not impleading a necessary party in
spite of objection, the consequences of non-joinder may follo~.
However, the said objection should be taken in the trial Court
itself so that the plaintiff may have an opportunity to rectify the
defect. The said plea cannot be raised in this Court for the first
0
time. This position has been reiterated in State of UP. vs. Ram
Swarup Saroj (2000) 3 SCC 699. We hold that a plea as to
the non-joinder of the party cannot be raised for the first time
before this Court if the same was not raised before the trial
Court and has not resulted in failure of justice. In the case of
E non-joinder, if the objection is raised for the first time before
this Court, the Court can always implead the party on the
application wherever necessary. However, in the case on hand,
for the disposal of application filed for rejection of the plaint
under Order VII Rule 11, 2nd defendant is not a necessary party,
F hence he need not be impleaded. Accordingly, we reject the
said objection of the respondent herein.
18. Apart from the above aspect, in the case on hand, the
application for rejection of the plaint of the appellant-1st
G defendant seeks no relief against the respondent herein-2nd
defendant. It is settled legal position that a party against whom
no relief is claimed in the application is not a necessary party
at all.
19. Mr. Mukul Rohatgi, learned senior counsel for the
H
CHURCH OF CHRIST CHARITABLE TRUST & EDU. CHARITABLE 425
SOCIETY v. PONNIAMMAN EDU. TRUST [P. SATHASIVAM, J.]
respondent pointed out that the learned single Judge while A
accepting the case of the appellant-1st defendant in allowing
the application for rejection of plaint has taken into
consideration extraneous material, i.e., the suit filed by Mis
Karthik Granites (P) Ltd. (C.S.No. 915 of 1994) and the·
Memorandum of Understanding (MoU) dated 13.02.1997. It is s
brought to our notice that it is the counsel for the plaintiff who
relied on these two extraneous materials beyond the plaint for
sustaining the plaint though that material was sought to be
incorporc~ted by amendment of the plaint. Apart from these, in
addition to the application for rejection of the plaint, two other c
applications, namely, for injunction and for amendment of plaint
were also taken up together which led to the situation
considering materials other than the plaint averments for the
purpose of considering the application for rejection of the plaint.
Accordingly, the contention of the learned senior counsel for the
0
respondent is liable to be rejected.
20. Finally, learned senior counsel for the respondent
submitted that in view of a decision of this Court in Roop Lal
Sathi vs. Nachhattar Singh Gill (1982) 3 SCC 487, rejection
of the plaint in respect of one of the defendants is not E
sustainable. We have gone through the facts in that decision
and the materials placed· for rejection of plaint in the case on
hand. We are satisfied that the principles of the said decision
does not app_ly to the facts of the present case where the
appellant-1st defendant i~ not seeking rejection of the plaint in F
p~rt. On the other hand, the 1st defendant has prayed for
rejection of the plaint as a whole for the reason that it does not
disclose a cause of action and not fulfilling the statutory
provisions. 111- addition to the same, it is brought to our notice
that this contention was not raised before the High Court and G
particularif-in view of the factual details, the said decision is
not applicable to the case on hand.
21. In the light of the above discussion, in view of the
shortfall in the· plaint averments, statutory provisions, namely,
H
426 SUPREME COURT REPORTS [2012] 6 S.C.R.
A Order VII Rule 11, Rule 14(1) and Rule 14(2), Form Nos. 47
and 48,in Appendix A of the Code which are statutory in nature,
we hold that the learned single Judge of the High Court has
correctly concluded that in the absence of any cause of action
shown as against the 1st defendant, the suit cannot be
B proceeded either for specific performance or for the recovery
6f money advanced which according to the plaintiff was given
'to the 2nd defendant in the suit and rjghtly rejected the plaint
as against the 1st defendant. Unfortunately, the Division bench
failed to consider all those relevant aspects and erroneously
c reversed the decision of the learned single Judge. We are
unable to agree with the reasoning., of the Division Bench of the
High Court.
22. In the light of the above discussion, the judgment and
order dated 16.08.2011 passed by the Division Bench of the
D High Court in OSA No. 100 of 2006 is set aside and the order
dated 25.01.2006 passed by the learned single Judge in
Application No. 3560 of 2005 is restored. The civil appeal is
allowed with costs.
E R.P. Appeal allowed.
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