MANU/SC/3415/2008

Equivalent Citation: AIR2009SC 413, 2009(4)ALT9(SC ), 2008 (4) AWC 3699 (SC ), 2009GLH(1)377, [2008(4)JC R117(SC )], 2009-1-LW504,
(2008)7MLJ483(SC ), 2008(4)PLJR96, (2009)153PLR490, 2009 106 RD681, 2008(11)SC ALE263, (2008)10SC C 97, 2008(2)UJ1033

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4982 of 2008 (Arising out of S.L.P. (C) No. 8622 of 2007)
Decided On: 11.08.2008
Appellants:Abdul Gafur and Ors.
Vs.
Respondent:State of Uttarakhand and Ors.
Hon'ble Judges/Coram:
C.K. Thakker and Devinder Kumar Jain, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: P.S. Patwalia, Sr. Adv., Pramod Dayal, Nikunj Dayal
and Nitish Rana, Advs
For Respondents/Defendant: Jayant Bhushan, Sr. Adv., Sanjeev Agarwal, Yunus
Malik, Ravi Kishore, Prashant Chaudhary, Vijay K. Jain and Vishnu Sharma, Advs.
Case Note:
Constitution of India - Article 226--Code of Civil Procedure, 1908--Section
24--Writ petition--Suits and appeals--High Court transferring suits and
appeals to itself--And dismissing them on ground that issues raised in suits
were being examined in writ petition--Whether justified? -- Held, "no"--
Procedure adopted by High Court--Unknown to law--Mere entertainment of
writ petition to which appellants not parties--Not good ground to dismiss
two suits without granting opportunity to parties to prove their respective
stands--Moreover scope of writ petition and two suits--Also seems to be
different--Impugned order set aside--Two suits and appeal dismissed so--
Restored to High Court for fresh adjudication and disposal in accordance
with law.
Ratio Decidendi:
"Mere entertainment of a Writ Petition, even if it involved determination of
similar issues, is not a good ground to dismiss the suits without granting
opportunity to the parties to prove their respective stands."
JUDGMENT
Devinder Kumar Jain, J.
1. Leave granted.
2 . This appeal, by special leave, is directed against the order, dated 29 th 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 been
dismissed in limine.
3. Facts necessary for the disposal of this appeal are as follows:

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 On 2/28th March, 2005, a gazette Notification was issued under Section 4 of
the Land Acquisition Act, 1894 (for short 'the Act') for acquiring 0.6900 Hec.
of land belonging to one Tek Chand, respondent No. 4 herein, for
construction of approach road for Himalayan Institute Hospital Trust,
Dehradun, respondent 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 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) preferred a Writ Petition
challenging the validity of Notifications under Sections 4 and 6 of the Act. It appears
that on 27th March, 2006, a clarification was issued by the State Government,
respondent No. 1, to the effect that the possession of the passage to the Hospital
shall remain with them; the Government would be making financial contribution in its
construction and the public would be entitled to use the same. In the affidavit filed
on behalf of the Government in the Writ Petition it was reiterated that the road was
not going to be used exclusively by the Hospital. Ultimately, the Writ Petition was
dismissed. Special Leave Petition filed by Tek Chand against the said order was also
dismissed on 15th September, 2006. Licence deed in respect of 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 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 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 Hospital and after hearing the parties, the trial court,
by detailed orders, dated 2nd February, 2007, granted temporary injunction in favour
of the appellants and restrained the Hospital from constructing boundary wall on both
sides of the road in question. Being aggrieved, the Hospital, filed appeals to the court
of District Judge, Dehradun. Arguments in the appeals were heard and orders were
reserved.
7. During the pendency of the appeals, Tek Chand filed yet another Writ Petition on
11th March, 2007, inter alia, alleging that the acquisition was fraudulent. While
entertaining the Writ Petition, exercising its power under Section 24 of the Code, vide
an ex-parte order dated 20th March, 2007, the High Court transferred both the said
suits as well as the civil appeals to itself in order to get the dispute settled between
the parties. In the said order, the High Court directed that both the lower courts shall
give notices to all the parties in the suit and the appeals, informing them that the
suits and appeals stand transferred to the High Court and they were required to
appear in person before the Court on 28th March, 2007. On the said order being
communicated to the appellants, they filed Misc. Application No. 499 of 2007 in the
said Writ Petition seeking recall of order dated 20th March, 2007.

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 8. When the Writ Petition came up for consideration, on 29th March, 2007, the High
Court dismissed both the suits and the appeals by passing the following short order:
We have perused the averments made in the suits as well as in the appeals,
which are represented by Sri Neeraj Garg (Advocate).
Since, the question involved is directly raised in the writ petition and we are
hearing the writ petition, therefore, the suits as well as appeals pending
before the court below are dismissed accordingly.
Let this writ petition for final hearing on 03.04.2007. Learned Counsel for the
Respondents may file Counter Affidavit, if any, by 03.04.2007. 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.
9 . Mr. Mukul Rohtagi and Mr. P.S. Patwalia, learned senior 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 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
acquisition 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 of the appellants to use the public
road laid on the acquired land. On merit, it was strenuously urged that being a public
street, neither the State nor any one claiming under it could cause any obstruction or
hindrance in its user by enclosing it with the walls. In support of the proposition that
the land having been acquired for 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 v. Sri Mahadeoji Maharaj MANU/SC/0299/1964 :
[1965]2SCR242 as also on a decision of the Allahabad High Court in Ram Swarup
and Anr. v. Municipal Board, Bulandshahr and Anr. MANU/UP/0093/1979 :
AIR1979All361 It was also alleged that taking advantage of the time gap between the
dismissal 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 the wall and restore status quo ante.
10. Per contra, Mr. Jayant Bhushan, learned senior counsel appearing on behalf of
the Hospital, while candidly admitting that the manner in which the two suits have
been dismissed by the High Court is totally indefensible, submitted that said suits
were nothing but yet another attempt by the original owner, respondent 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 Counsel
was at pains to assert that the land on both sides of the road was proposed to be
developed by respondent No. 4 as a commercial 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.
11. Mr. V.K. Jain, learned Counsel, appearing on behalf of the State Government,

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 supporting the stand of the Hospital, submitted 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 earliest stage, learned
Counsel placed reliance on a decision of this Court in T. Arivandandam v. T.V.
Satyapal and Anr. MANU/SC/0034/1977 : [1978]1SCR742
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 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 barred. To put it differently, as per Section 9 of the Code, in all types of
civil disputes, civil courts have inherent jurisdiction unless a part of that jurisdiction
is carved out from such jurisdiction, 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 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 by a
statute.
1 4 . I n Smt. Ganga Bai v. Vijay Kumar and Ors. MANU/SC/0020/1974 :
[1974]3SCR882 this Court had observed as under:
There is an inherent right in every person to bring suit of 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 bars the suit.
1 5 . I n Dhannalal v. Kalawatibai and Ors. MANU/SC/0565/2002 :
[2002]SUPP1SCR19 relying on the afore-extracted observation inGanga Bai's case
(supra), this Court had held as follows:
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 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 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, 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 question, one way or the other, only having regard to the reliefs
claimed de'hors the factual averments made in the plaint. See: Church of North
India v. Lavajibhai Ratanjibhai and Ors. MANU/SC/2531/2005 :
(2005)10SCC760
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

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 Section 24 of the Code, the High Court has jurisdiction 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 appeal, as the case may be, to some other court or the same
court, it is obliged to try, adjudicate and dispose of the 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 convinced that the plaint
read as a whole does not disclose any cause of action, it may reject the plaint in
terms of Order 7 Rule 11 of the Code. As a matter of fact, as observed by V.R.
Krishna Iyer, J., in T. Arivandandam (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 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 courts subordinate to it in a meaningful manner 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 the appeals to itself. On being served with a copy
of the said order, the appellants immediately moved an application for recall of the
said order. In the said application, it was pointed out that in the appeals, preferred
by the Hospital against the interim injunction granted by the civil judge, argument
had been heard by the district judge and order was to be pronounced on 26th March,
2007 but in the meanwhile on 20th 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 dated 20th March,
2007, the High Court dismissed the suits on the aforenoted ground, namely, the
issues raised in the suits were being examined in the Writ Petition. We have no
hesitation 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 the part of Tek Chand, respondent No. 4, to derive
some undue advantage 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, should not be summarily dismissed without recording a reasoned
order. A mere entertainment of the Writ Petition, to which the appellants herein were
not parties, even if it involved determination of similar issues, in our opinion, was
not a good ground to dismiss 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 different.
19. On a conspectus of the factual scenario and in view of the above discussion, the
appeal is allowed; the impugned order, dated 29 th March, 2007, is set aside and the
two suits and 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 appropriate orders on the appellant's prayer for restitution,
for which purpose I.A. No. 7 of 2007 shall stand transferred to the High Court. We
may clarify that we have not expressed any opinion on the merits of the two suits or

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 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 will bear their own costs.

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