SMT. PATASIBAI & ORS. versus RATANLAL

Citation: [1990] 1 S.C.R. 172 · Decided: 30-01-1990 · Supreme Court of India · Bench: M.H. KANIA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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SMT. PATASIBAI & ORS. 
v. 
RATANLAL 
JANUARY 30, 1990 
[M.H. KANIA AND J.S. VERMA, JJ.] 
Code of Civil Procedure: Order 7 Rules 11 and Order 23 Rule 
3A-Mainrainability of suit-Issuance of summons by trial court-
Whether a bar lo trial when no triable issue is shown to arise. 
One Motilal who owned Goyal Talkies entered into a partnership 
with respondent Ratanlal representing the joint family firm of M/s. 
Ratanlal Damdoolal and Bros., for the purpose of running the cinema 
business. Later, the said Motilal together with his wife and children 
filed a civil suit for dissolution of partnership, rendition of accounts, 
etc., against respondent Ratanlal, as defendant No. 1, the firm "Mis 
Damdoolal and Bros." as defendant No. 2, and one Puranmal as 
defendant No. 3. Motilal subseq1J1ently filed an application for correc-
tion of the description of defendant No. 2 firm, which was allowed. 
The suit was compromised. According to one of the terms of the 
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compromise, plaintiff was to pay to defendant Nos. l and 2 a sum of 
Rs.15, 700 in full satisfaction of their claim, subject to final accounting. 
The plaintiff paid this sum within the specified period and thereupon 
the receiver gave possession. Subsequently, the Court passed a final 
decree dated 16.11.1959 stating that the partnership stood dissolved, 
and directing defendant. Nos. I and 2 to refund to the plaintiff the 
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amount of Rs.5,470 which was the excess amount paid by the plaintiff.to 
them. Defendant Nos. I and 2 filed an appeal against the final decree 
which was dismissed, and their second appeal in the High Court was 
also dismissed on 2.12.1972. 
Thereafter, Civil Suit No. 1699 of 1980 was filed by Ratanlal, 
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respondent herein, against the appellants, who are the legal representa-
tives of Motilal, assailing the consent decree after taking the entire 
benefit thereunder. The reliefs claimed were for a declaration that the 
final decree dated 16.11.1959 was a nullity, and for possession of Goyal 
Talkies, etc. The appellants resisted the suit inter alia on the ground 
that it was barred by res judicata, and further that the suit was also 
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barred by virtue of Rule 3A Order 23, C.P.C. The Trial Court framed a 
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SMT. PATASIBAI v. RATANLAL 
173 
preliminary issue regarding maintainability and held the suit to be 
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maintainable. The High Court dismissed the civil revision against that 
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order. 
Before this Court it was contended on behalf of the appellant that 
the suit was barred by virtue of Rule JA of Order 23 and even otherwise 
the plaint averments did not disclose any cause of action in order to 
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raise a triable issue. In reply, it was contended that Rule 3A of Order 
23, C.P.C., had no application since the decree assailed in the suit was 
of a date much prior to insertion of Rule 3A by amendment with effect 
from i.2.1977; and that the question of examining the frame of the suit 
to determine its maintainability on any other ground did not arise since 
the appellant"s case was based on the bar under Order 23, Rule 3A, and C 
no specific objection for rejection of the plaint under order 7 Rule 11 
C.P.C., was taken earlier. 
During the course of hearing of the appeal, the respondent filed 
an application for amendment of the plaint. 
Allowing the appeal, this Court, 
HELD: (1) On the admitted facts appearing from the record it-
self, counsel for the respondent was unable to show that all or any of the 
averments in the plaint disclose a cause of action giving rise to a triable 
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issue. [179FJ 
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(2) Since the plaint suffers from this fatal defect, the mere 
issuance of summons by the Trial Court does not require tliat 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 can not be done. [179G-H] 
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(3) It being beyond dispute that the plaint averments do not disc-
lose a cause of action, the plaint is liable to be rejected under Order 7 
Rule ll, C.P.C. without going into the applicability of Order 23 Rule 
3A, C.P.C. to the present suit. [ISOA] 
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( 4) There is no ground to allow the application for amendment of 
the plaint which apart from being highly belated, is clearly an after-
thought for the obvious .purpose of averting the inevitable consequence 
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of rejection of the plaUit on the ground that it does oot disdose any 
cause of action or raise any triable issue. Moreover, t

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