Arindam Mukherjee, J. - (1.) This is an application inter alia for rejection of the plaint and/or dismissal of the suit and in the alternative for framing of a preliminary issue as to the maintainability of the suit in view of two orders respectively dated 5th September, 2007 and 13th March, 2012 passed subsequent to the filing of the suit made by the defendants No.1 and 2. Ordinarily, an application for rejection of plaint and/or dismissal of the suit filed in this Court under the provisions of Chapter VI Rule 11 (12) of the Original Side Rules of this Court is decided on the principles of Order 7 Rule 11 of the Code of Civil Procedure 1908 by looking into the averments made in the plaint and documents annexed thereto. In the instant case the suit has been filed in 1995. The plaint has fallen for scrutiny on several earlier rounds of the instant litigation.
(2.) When this Court did not think it fit to reject the plaint or dismiss the suit.
(3.) This instant application appears to be based on the subsequent events or post suit developments. Relying upon judgment reported in 2004 (11) SCC 168 [Shipping Corporation of India Ltd. versus Machado Brothers and Ors.] it is submitted that in view of subsequent events the original proceedings have become infructuous and it is the duty of the Court to take such action as is necessary in interest of justice which includes disposing of the infructuous litigation applying provisions of section 151 of the Code of Civil Procedure, 1908, read with the provisions of Order 7 Rue 11 thereof. I am, therefore, required to consider the impact of the two orders referred to hereinabove along with the subsequent events while deciding the instant application. (A) The plaint case is as follows:- 1. One Mohanlal Maheswari and one Mohanlal Kocher, carried on business in partnership with equal share under the name and style of Bharat Industries and Commercial Corporation, in terms of a partnership deed dated 23rd December, 1972. 2. Mohanlal Maheshwari died on 17th December, 1984. The plaintiff No.1 (Rajeev Maheshwari), plaintiff No.2 (Rahul Maheshwari) and plaintiff No.3 (Ranjan Maheshwari) are the three sons of the said Mohanlal Maheshwari. The plaintiffs are the only heirs and legal representatives of the said Mohanlal Maheshwari. 3. The defendant No.1 (Shashank Kocher) and defendant No.2 (Mayank Kocher) and original defendant No.3 (Mrigank Kocher) three are the sons of the said Mohanlal Kocher who dies intestate on or about 6th March, 1992. Defendant No.3(a) (Anita Kocher) and 3(b) (Sharan Kocher) are the heirs of one Mrigank Kocher, since deceased. Defendant No.4 (Kishan Mimani) is the assignee of the purported Agreement for Sale of Mohanlal Kocher's purported 50 per cent share in the dissolved partnership firm viz. M/S. Bharat Industries and Commercial Corporation. 4. Mohanlal Kocher, dies on 6th March, 1992. Prior to his death by an agreement for sale dated 26th December, 1990 sold his 50% share to one Om Prakash. The said Om Prakash by a deed said to have assigned his right under the agreement dated 26th December, 1990 to Kishan Mimani, the defendant No.4. The said defendant No.4 has filed a suit inter alia for specific performance of his agreement being CS 510 of 1993 which appears to be pending at a pre-trial state. 5. In August, 1984 when both Mohanlal Maheshwari and Mohanlal Kocher were alive, they referred their disputes arising in respect of the partnership to Arbitration by each appointing an arbitrator and P. Tewari being appointed as Umpire. Nothing further happened as Mohanlal Maheshwari died on 17th December, 1984. 6. The partnership according to the plaintiffs stood dissolved with effect from 17th December, 1984 upon the death of Mohanlal Maheshwari. Though the plaintiff No.1 and defendant No.2 made some infructuous attempts in 1985 to wind up the partnership business but nothing ultimately came and as such according to the plaintiffs the claim of the defendants, if any, for accounts and share of the profit arising out of or concerning the partnership business came to an end with expiry of three years from 17th December, 1984 when the partnership stood dissolved, therefore, the same is barred by limitation. 7. The defendants have admitted to be in possession of the properties and assets of the dissolved partnership in adverse exclusion of the defendants. The plaintiffs, therefore, has inter alia claimed a declaration that the defendants have no right, title or interest in respect of the dissolved partnership. 8. It is further stated that the defendants No.1 and 2 and Mrigank Kocher, since deceased in 1995 had filed an application under the provisions of section 20 of the Arbitration Act, 1940 as also an application under section 41 of the said Act. In the section 20 application (being numbered as Special Suit No.9 of 1995) by an order dated 5th September, 1995 direction for filing of the arbitration agreement was given. In an appeal being Appeal No.472 of 2007 preferred against the order dated 5th September, 1995 the said order was stayed. The appeal was pending at the time when the suit was initiated. (B) Facts subsequent to the filing of the suit:- 1. The appeal being APO No.472 of 2007 arising out of the order dated 5th September, 2007 passed in Special Suit No.9 of 1995 was decided on 13th March, 2012 by partially modifying the order dated 5th September, 2007. The modification was to the extent that Mimani's (defendant No.4) rights should be excepted matter in the arbitration since Mimani is not a party to the arbitration agreements. 2. By an order dated 2nd May, 2011 the above suit was dismissed by referring all disputes being the subject matter of the suit to arbitration. Two separate appeals were preferred against the said order dated 2nd May, 2011 - one by Mimani being APO 198 of 2011 and the other by Kochers being APO 199 of 2011. Both the appeals were allowed by an order dated 23rd December, 2011 by setting aside the order dated 2nd May, 2011. C.S 510 of 1993 (filed by Mimani for specific performance) and the instant suit were also directed to be heard analogously 3. A further application under section 20 of the 1940 Act being AP 493 of 2012 on being filed an order was passed on 11th October, 2012 appointing the nominee of the Kocher defendants so that the arbitrator already appointed by the Maheshwaris' (plaintiffs) and the said nominee could appoint an Umpire within a time frame to constitute the arbitral tribunal to adjudicate upon the disputes. 4. Challenging the order dated 11th October, 2012 two separate appeal were filed - one by the Mimani (APOTS 28 of 2012) and the other by Maheshwari (APOT 527 of 2012). Both the appeals were dismissed by an order dated 11th December, 2012. 5. Prior to the dismissal of the two appeals, the arbitrators held a meeting on 8th December, 2012 and appointed an Umpire. 6. After dismissal of the two appeals, there was no embargo on the Maheshwari to proceed with the arbitration but by excluding the excepted matters as held in the order dated 13th March, 2012. 7. The plaintiffs (Maheshwari's) thereafter filed a suit being C.S 328 of 2013. The Maheshwari also filed an interlocutory application in the said suit inter alia to restrain the Kochers' from proceeding with the arbitration. The said application being GA 2826 of 2013 was dismissed by an order dated 7th November, 2014. 8. The arbitration proceedings as appears, did not proceed much further before the Arbitral Tribunal constituted in terms of the order dated 11th October, 2012 due to the death of one of the arbitrators during the pendency and the other owing to his ill health having renounced his office. 9. By an order dated 10th February, 2017 an Arbitral Tribunal was constituted with a Single arbitrator with a direction upon him to conclude the proceedings within a time frame. This order was carried in appeal by the Kocher's but same being APO 83 of 2017 was dismissed by an order dated 31st July, 2017. The special Leave Petition filed challenging the order dated 31st July, 2017 was disposed of by an order dated 5th August, 2019 without interfering with the order of the Division Bench of this Court but the time to complete the arbitration proceedings was extended for a period of six months from 21st August, 2019. 10. After the hearing of the instant application was concluded but prior to the judgment being delivered, the Arbitral Tribunal has passed its award on 28th January, 2020. The award has been placed on record by a separate application being GA No.7 of 2020 filed by the Maheshwari. By an order dated 18th September, 2020 the said award was taken on record for the purpose of the deciding the instant application. 11. The learned Sole Arbitrator in his award dated 28th January, 2020 has terminated the arbitral proceedings by holding that the reliefs claimed in the arbitration are covered by the reliefs claimed in CS 510 of 1993 and CS No.195 of 2010 (the instant suit). Till the said award is set aside the same remains valid and binding. (C) Submission of the parties:- 1. The applicants (Kocher's) submit that the suit has become infructuous in view of the post suit orders and subsequent events and as such the plaint should be rejected and/or suit be dismissed with an alienative prayer to frame a preliminary issue as to its maintainability owing to the subsequent events and post suit orders. The applicants have placed the orders referred to hereinabove and the judgment reported in Shipping Corporation (supra) to conclude the suit should be dismissed. 3. The plaintiffs (Maheshwari's) opposing the application say that the suit is maintainable and has not become infructuous even after passing of the several orders referred to hereinabove. Emphasis in particular have been laid on the Division Bench orders respectively dated 23rd December, 2011 and 13th March, 2012 wherein the rights for and against the Mimani (defendant No.4) has been carved out of the arbitration proceedings and holding that the suit is maintainable orders passed subsequent to the order dated 13th March, 2012 are referred to for a further submission that this Court has never felt in the earlier rounds of the litigation between the parties including Mimani that the plaint is required to be rejected or suit to be dismissed. The applicants have further referred to the following judgments:- (a) AIR 1977 SC 2421 : 1977 (4) SCC 467 [T. ARIVANDANDAM Vs. T. V. SATYAPAL AND ANOTHER] para 5 and 6 "5. We have not the slightest hesitation on condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that 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, he should exercise his power under Order VII, Rule 11, C.P.C. taking care to see that the 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 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 triggerted against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi: "It is dangerous to be too good." 6. The trial Court in this case will remind itself of Section 35- A, C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned'. (b) AIR 1983 Raj 1 [RANJEET MAL Vs. POONAM CHAND AND ANOTHER] (paragraphs 3 and 4):- "3. Learned counsel for the defendant petitioner urges that the plaint should not be read in a formal manner but it should be read along with the law on the subject and that a perusal of the provisions of the Rajasthan Urban Areas (Sub- Division, Reconstitution and Improvement of Plots) Rules, 1975 would make it clear that the open spaces left after sub- division vested in the Urban Improvement Trust and that in view of the said provisions of law, the plaint did not disclose any cause of action for filing the suit, because the correct legal position was that the land in dispute did not belong to the plaintiff. Learned counsel placed reliance on the decision of a learned single Judge of the Delhi High Court in Shakti Sugars Ltd. v. Union of India, AIR 1981 Delhi 212. In that case the question was as to whether the State Trading Corporation was the agent of the Central Government, by reason of which the latter was liable for breach of contract committed by the former. It was urged on behalf of the Union of India that the plaint did not disclose any cause of action against the Union of India and the suit should be dismissed against it. The learned single Judge referred to the decision of their Lordships of the Supreme Court in T. Arivandandam v. Satyapal, AIR 1977 SC 2421 and held that it is to be seen if 'actually according to law' the contention contained in the plaint that the defendant was an agent of the Union of India was justified or not and mere allegation of the plaintiff was not enough. With great respect to the learned Judge, I am unable to agree with the view taken in Shakti Sugar's case, because at the stage of deciding the question as to whether the plaint should be rejected under Clause (a) of Order VII, Rule 11, C.P.C., the Court is required to find out from the pleadings of the plaintiff as to whether any cause of action was disclosed from the allegations contained in the plaint. If a legal question is raised by the defendant in his written statement disputing the claim of the plaintiff and if the same is to be decided at that stage, then it would be pre-judging the matter, which should form the subject matter of an issue, as a proposition of law asserted by one party and denied by the other. With utmost respect to the learned Judge, I would humbly say that their Lordships of the Supreme Court in Arivandandam's case laid down that there should be a meaningful reading of the plaint and not a formal reading thereof. What their Lordships desired to emphasise in that case was that the plaintiff merely by a camouflage cannot maintain a suit, if according to the substance of the allegations made in the plaint no cause of action worth the name was disclosed and fruitless litigation should not be permitted. The 'meaningful reading of the plaint', in my humble view, would not amount to probing into the allegations made in the plaint on the basis of the pleas raised by the defendant in his defence and then finally deciding the questions of law which are in dispute between the parties. Whether the plaintiff's case is 'actually' maintainable according to law or not, cannot fall within the ambit of 'a meaningful reading of the plaint'. ;