# Jagdish Chandra & Ors v. Krishna Mohan Aggrawal

- **Citation:** (2020) 2 ILRA 108
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-06
- **Case number:** F.A.F.O. No.521 of 1999
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-chandra-ors-v-krishna-mohan-aggrawal-45615
- **Pages:** 15

## Headnote

A. Civil Law-Civil Procedure Code (5 of
1908) - Section 88 - Interpleader suit -
Order 35 Rule 5 - tenants may not
institute interpleader suits - Order 35
Rule
5
precludes
the
tenant
from
instituting an interpleader suit against his
landlord - Evidence Act, Section 116 -
doctrine of estoppel - Bar based on the
doctrine of estoppel as the tenant cannot
challenge the title of his landlord which is
based on the principle of Section 116 of
the Evidence Act, 1872

Plaintiffs are the tenants and the defendants
are the landlords, therefore in view of embargo
contained in Order 35 Rule 5 C.P.C - courts
below have not committed any error in
rejecting the plaint - Plaintiffs deposited the
rent and continued to deposit rent in the SCC
suit in favour of the defendants who have been
substituted
as
landlords
-
Plaintiff
are
prevented from taking plea that there are two
separate sets of person claiming and hence the
requirement of an interpleader suit (Para 32)

B. Civil Law-Civil Procedure Code (5 of
1908) - O.7 R.11 - Rejection of plaint -
suppression and concealment of the
material facts - duty of the plaintiff to
come before Court with clean hands -
Plaintiff made concealment of facts - No
mention regarding eviction suits filed by
the landlords against the Plaintiff - it was
plaintiff duty to have disclosed the
pendency of all the suits which were filed
and had been pending since 1998 - Plaint,
liable to be rejected (Para 41)

Appeal dismissed. (E-5)

List of cases cited :

## Text

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108 INDIAN LAW REPORTS ALLAHABAD SERIES
(2005) 6 SCC 321 : (AIR 2005 SC 2090);
Bidhannagar (Salt Lake) Welfare Assn. v.
Central Valuation Board, (2007) 6 SCC 668 :
(AIR 2007 SC 2276); and Devdutt v. Union of
India, 2008 (3) ESC 433 (SC) : ((2008) 8 SCC
725 : AIR 2008 SC 2513).

19. In the case of Erusian Equipment
and Chemicals Ltd. v. State of West
Bengal and another A.I.R. 1975 SC 266;
Raghunath Thakur v. State of Bihar and
others A.I.R. 1989 SC 620; and Gronsons
Pharmaceuticals (P) Ltd. v. State of Uttar
Pradesh and others A.I.R. 2001 SC 3707
and the decisions of the Division Bench of
this Court in Smt Rajni Chauhan v. State
of U.P and others 2010 (6) AWC 5762
(All.) also it has been held that an order
which leads to civil consequences cannot
be passed without affording an opportunity
of hearing and the same must be passed in
conformity of principles of natural justice.

20. Keeping in view the aforesaid
facts, which are evident from the record of
the FAFO No. 521 of 99 particularly that
without any notice to the review applicant,
Dinesh Kumar Singh and without giving
any opportunity of hearing to him, the
FAFO No. 521 of 99 was decided vide
impugned judgment and order dated
28.02.2013 as well as the settled legal
preposition of law that any order having
civil consequences if passed without
hearing or giving opportunity of hearing to
the person concerned/aggrieved, then the
same would be violative of the principles
of natural justice and is liable to be setaside, we are of the view that the
arguments raised by the learned counsel
for the Company has got no force.

21. Taking into consideration the
aforesaid fact as well as the settled
principles of law, we are of the view that
the application for condonation of delay as
well as also the application for review are
liable to be allowed in the interest of
substantial justice.

22. Accordingly, the application for
condonation of delay as well as the review
application are allowed. The judgment and
order dated 28.02.2013 passed in FAFO
No. 521 of 1999 (National Insurance
Company Ltd. v. Ram Vishal Pandey), is
hereby recalled. The FAFO No. 521 of
1999 is restored to its original number.

23. Further, looking into the
valuation of the appeal, the same is
cognizable by a learned Single Judge.

24. Office is directed to place the
F.A.F.O.
No.521
of
1999
before
appropriate Bench.

25. On the next date of listing, the
name of Shri Mukesh Singh be shown as
counsel for the respondent no.2 in the
F.A.F.O. No.521 of 1999.
----------
(2020)02ILR A108

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.02.2020

BEFORE

THE HON'BLE JASPREET SINGH, J.

Second Appeal No. 37 of 2020

Jagdish Chandra & Ors. ...Appellants
Versus
Krishna Mohan Aggrawal ...Respondent

Counsel for the Appellants:
Samarth Saxena

Counsel
for
the
Respondent:
4 All. Jagdish Chandra & Ors. Vs. Krishna Mohan Aggrawal
109
Ashish Chaturvedi

A. Civil Law-Civil Procedure Code (5 of
1908) - Section 88 - Interpleader suit -
Order 35 Rule 5 - tenants may not
institute interpleader suits - Order 35
Rule
5
precludes
the
tenant
from
instituting an interpleader suit against his
landlord - Evidence Act, Section 116 -
doctrine of estoppel - Bar based on the
doctrine of estoppel as the tenant cannot
challenge the title of his landlord which is
based on the principle of Section 116 of
the Evidence Act, 1872

Plaintiffs are the tenants and the defendants
are the landlords, therefore in view of embargo
contained in Order 35 Rule 5 C.P.C - courts
below have not committed any error in
rejecting the plaint - Plaintiffs deposited the
rent and continued to deposit rent in the SCC
suit in favour of the defendants who have been
substituted
as
landlords
-
Plaintiff
are
prevented from taking plea that there are two
separate sets of person claiming and hence the
requirement of an interpleader suit (Para 32)

B. Civil Law-Civil Procedure Code (5 of
1908) - O.7 R.11 - Rejection of plaint -
suppression and concealment of the
material facts - duty of the plaintiff to
come before Court with clean hands -
Plaintiff made concealment of facts - No
mention regarding eviction suits filed by
the landlords against the Plaintiff - it was
plaintiff duty to have disclosed the
pendency of all the suits which were filed
and had been pending since 1998 - Plaint,
liable to be rejected (Para 41)

Appeal dismissed. (E-5)

List of cases cited :

1. Yeshwant Bhikaji Vilankar Vs Sadashiv
Govind Arekar & Ors 1940 ILR 842

2. State of Orrissa Vs Klockner & Company&
Ors 1996 (8) SCC 377

3. T. Arivandam Vs T.V. Satyapal & Anr 1977
(4) SCC 467
4. Rajan Sharma Vs Labh Singh 2011 SCC
Online P&H 5451

5. Sopan Sukhdeo Sable & Ors Vs Assistant
Charity Commissioner & Ors (2004) 3 SCC 137

6. Popat & Kotecha Property Vs State Bank of
India Staff Association (2005) 7 SCC 510

7. I.T.C. Limited Vs Debts Recovery Appellate
Tribunal and Others (1998) 2 SCC 70

8. Raj Narain Sarin (Dead) Thru LRs. & Ors Vs
Laxmi Devi & Ors (2002) 10 SCC 501

9. Maria Margarida Sequeira Fernandes & Ors
Vs Erasmo Jack De Sequeira(Dead) thru LRs
2012 (5) SCC 370

10. Mudit Verma Vs Ram Kumar & Anr reported
2018 (8) ADJ 52

11. Bhaskar Laxman Jadhav & Ors. Vs
Karamveer Kakasaheb Wagh Education Society
& Ors. 2013 (11) SCC 531

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Sri Samarth Saxena, learned
counsel for the appellants and Sri N.K.
Seth, learned Senior Advocate along with
Sri Ashish Chaturvedi for respondent no.
8.

2. The instant second appeal has
been preferred by the plaintiffs/appellants
against a concurrent judgment and decree
passed by the two courts whereby the
application under Order 7 Rule 11 C.P.C.
has been allowed rejecting the plaint of the
appellants.

3. The learned counsel for the
appellants has urged that the two courts
while rejecting the plaint in suit upon
applying the provisions of Order 7 Rule 11
C.P.C. has not considered the true import
of Order 35 Rule 5 C.P.C. and has
110 INDIAN LAW REPORTS ALLAHABAD SERIES
incorrectly applied the aforesaid provision
in non-suiting the plaintiff which is a gross
error of jurisdiction committed by the two
courts, resulting in sheer miscarriage of
justice.

4. The learned counsel for the
appellants
has
submitted
that
an
application under Order 7 Rule 11 is to be
considered only on the basis of the
averments contained in the plaint in suit.
At the stage of such consideration, the
Court cannot look into the written
statement or the defence as raised by the
defendants.

5. The learned counsel for the
appellants has further submitted that it is
one thing to state that the plaint does not
disclose a cause of action and it is
altogether different thing to urge that the
plaintiff does not have a cause of action.

6. Elaborating his submission, it has
been
submitted
that
where
on
the
meaningful reading of the plaint it does
not disclose a cause of action, then the
Court is then entitled to reject a plaint in
terms of the Order 7 Rule 11 C.P.C.,
however, stating that the plaintiff does not
have a cause of action, this necessarily
would mandate the Court to consider the
pleadings of the parties which necessarily
involves looking into the written statement
and only after the evidence is led can the
Court reach such a conclusion that the
plaintiff does not have a cause of action
and this necessarily means that a plaint
cannot be rejected as per Order 7 Rule 11
C.P.C. rather at best it would be a matter
to be decided on merits.

7. It has been urged that the two
courts
have
completely
ignored
the
aforesaid distinction while rejecting the
plaint and as such the appellant had
suffered injustice.

8. It is also submitted that the two
courts have not considered the provisions
of Order 35 Rule 5 C.P.C. in the correct
perspective and has rejected the plaint
while all the ingredients required were
clearly met and as such the plaint was very
well maintainable which has erroneously
been rejected.

9. In support of his submissions, the
learned counsel for the appellant has relied
upon a decision in the case of Yeshwant
Bhikaji Vilankar Vs. Sadashiv Govind Arekar
and Others reported in 1940 ILR 842 and State
of Orrissa Vs. Klockner and Company and
Others reported in 1996 (8) SCC 377.

10. Sri N.K. Seth, learned Senior
Advocate
assisted
by
Sri
Ashish
Chaturvedi,
learned
counsel
for
the
respondent no. 8 has appeared on caveat
and opposed the aforesaid submission.

11. It has been submitted that the
interpleader suit as filed by the appellants
was clearly hit by Order 35 Rule 5 C.P.C.
as well as the proviso appended to Section
88 C.P.C. It has also been submitted that
the appellants are the tenants of the
property in question against whom the
eviction suits are pending since 1998,
hence in order to delay and to avoid the
eventuality the alleged interpleader suit
has been filed only in the year 2015,
coupled with the fact that the alleged
plaint suffers from gross concealment,
inasmuch as, there is not a mention
regarding the eviction suits filed by the
landlords against the appellants. It has also
been submitted by Sri N.K. Seth, that in
paragraph 11 there is just a passing
reference relating to the cause of action,
4 All. Jagdish Chandra & Ors. Vs. Krishna Mohan Aggrawal
111
that a suit was filed for eviction in the year
2015 which has given the cause of action
to the plaintiff to file the aforesaid suit
which as per Sri Seth is deliberate
misrepresentation
as
the
plaintiff
concealed that the suits are pending since
1998. It has also been submitted that the
proviso appended to Section 88 C.P.C as
well as in light of the mandate contained in
Order 35 Rule 5 C.P.C. the plaint has
rightly been rejected.

12. Sri Seth has further submitted
that under Order 7 Rule 11 C.P.C., it is a
duty on the Court to consider whether any
of the sub-clauses contained in the
aforesaid provision are attracted. The
power of Order 7 Rule 11 can be exercised
at any stage, coupled with the fact that in
the present case not only did the plaint did
not disclose any cause of action but at the
same time, it was barred by law. The
distinction as sought to be highlighted by
the learned counsel for the appellant
regarding the plaint not disclosing the
cause of action and that the plaintiff did
not have a cause of action pales into
insignificance in the present case since as
per the plaint averments alone it was
clearly established and admitted that the
plaintiff who are the appellants herein are
the tenants and the defendants are the
landlords, therefore, the bar contained in
Order 35 Rule 5 C.P.C. was clearly
attracted and, thus, irrespective of the fact
whether the plaint disclose a cause of
action or not, the plaint was barred and
thus the two courts have not committed
any error nor any substantial question of
law arises and the aforesaid second appeal
is liable to be dismissed at the admission
stage itself.

13. Sri Seth, learned counsel for the
respondents has placed reliance upon a
decision of the Apex Court in the case of
T. Arivandam Vs. T.V. Satyapal and
Another reported in 1977 (4) SCC 467 and
Rajan Sharma Vs. Labh Singh reported in
2011 SCC Online P&H 5451.

14. The Court has considered the
submissions of the learned counsel for the
parties and also perused the record.

15. In order to appreciate the
submissions of the learned counsel for the
parties and to put the controversy in a
perspective, certain facts giving rise to the
above second appeal are being noticed
hereinafter first:-

16. The plaintiffs (appellants herein)
instituted a suit in the Court of Civil
Judge, Senior Division, Lakhimpur Kheri
bearing R.S. No. 290 of 2016 as an
interpleader suit impleading the defendantrespondents who are the legal heirs of Late
Sri Murlidhar.

17. It has been pleaded that the
property the subject matter of which the
plaintiffs-appellants are the tenants in
possession was let out by late Sri
Murlidhar.
Upon
the
death
of
Sri
Murlidhar it is alleged that he was
survived by his daughter Smt. Anar Devi
and a son late Sri Badri Prasad. It is also
stated that Sri Murlidhar also executed a
will by virtue of which he has constituted a
Trust. Since both Smt. Anar Devi and Sri
Badri Prasad expired and their legal heirs
are the defendants.

18. It was further submitted that the
defendants belonged to two separate
branches i.e. to say, some were heirs of
Smt. Anar Devi and others were the heirs
of Late Sri Badri Prasad. None of the
defendants have filed any suit amongst
112 INDIAN LAW REPORTS ALLAHABAD SERIES
themselves to determine their right as the
landlords, however, the defendants nos. 1
to 6 and 7, 8 and 10 have filed separate
suits seeking eviction of the plaintiffs. It
has been specifically stated in paragraph
11 that the cause of action accrued in the
month of April, 2015 when the defendant
nos. 1 to 6 instituted a suit for eviction
while the defendants no. 8, 9 and 10
claimaning themselves to be the landlord
have demanded rent from the plaintiffs and
in the aforesiad backdrop it filed the
interpleader suit on 17.08.2016 with the
following reliefs:-

(i) The defendants be restrained
from taking any action against the plaintiff
in respect of the property in question;

(ii) That the defendants no. 1 to
6 and 7, 8 and 9 be required to interplead;

(iii) That till such time the matter
is pending, the plaintiff be permitted to
deposit the rent in Court or before any
competent person to be appointed by the
Court ;

(iv) That the costs of the suit be
also awarded in favour of the plaintiff.

19. The defendants nos. 1 to 7 made
an application under Order 7 Rule 11
C.P.C. stating therein that the plaintiff
being the tenant does not have a right to
institute the aforesaid interpleader suit in
terms of Order 35 Rule 5 C.P.C. It was
further indicated that it is incorrect of the
plaintiff to state that the cause of action
accrued in the Month of April, 2015 since
eviction suits had already been filed
against the plaintiffs in the year 1998 and
the details of the aforesaid suits which
were for eviction as well as release of the
premises on account of bonafide need was
already pending. It was also stated that the
plaintiffs themselves had filed a writ
petition before the High Court wherein the
High Court had directed that the question
regarding the ownership shall be decided,
however, in order to delay the proceedings
as well as to avoid the eventuality in the
eviction suits the present interpleader suit
has been filed and as such the plaint was
liable to be rejected, apart from the fact
that the suit was also barred by limitation.

20. It is in this backdrop that the
Trial Court by means of its order dated
06.10.2017 allowed the application under
Order 7 Rule 11 and rejected the plaint.
While doing so the Trial Court relied upon
Order 35 Rule 5 and found that since it is
not disputed that the property in question
was let out to the plaintiffs by Sri
Murlidhar and they being the tenants, in
light of the proviso, the tenant is precluded
from filing an interpleader suit against the
landlord, hence, it found that in the present
case since the tenancy was governed by
the U.P. Act 13 of 1972, hence as far as
the relief claimed by the plaintiff was
concerned regarding the deposit of rent he
had a remedy before the appropriate court
under the Rent Act and further in light of
the embargo contained in Order 35 Rule 5
the plaintiff did not have a right to institute
the suit and consequently the plaint was
rejected.

21.

The
plaintiffs-appellants
preferred a regular Civil Appeal before the
District Judge, Lakhimpur Kheri which
was registered as Regular Civil Appeal
No. 79 of 2017. The lower appellate court
after considering the material on record
affirmed the judgment and decree passed
by the Trial Court and dismissed the
appeal. While doing so, it found that since
Order 35 Rule 5 does not permit a tenant
to file an interpleader suit against the
landlord, hence, the plaintiff did not have a
cause of action, coupled with the fact that
4 All. Jagdish Chandra & Ors. Vs. Krishna Mohan Aggrawal
113
the since the tenancy was governed by the
U.P. Act 13 of 1972 wherein under
Section 30 Sub Section 2, he had a remedy
of depositing the rent, consequently, the
findings of the Trial Court were affirmed
and the appeal was dismissed by means of
judgment and decree dated 09.01.2020.

22. It is these two judgments which
have been assailed in the present second
appeal. In light of the submissions made
by the learned counsel for the respecive
parties, this Court has to ascertain whether
the judgment and decree passed by the two
courts can sustain judicial scrutiny.

23. In order to test the submissions, it
will be necessary to understand whether
the alleged bar of Order 35 Rule 5 C.P.C.
is applicable in the present case or not. At
the very outset, it will be relevant to
mention
that
interpleader
has
been
provided in Section 88 of C.P.C. The
aforesaid section reads as under:-

Section 88.- Where interpleader
-suit may be instituted.- Where two or
more persons claim adversely to one
another the same debts, sum of money or
other property, movable or immovable,
from another person, who claims no
interest therein other than for charges or
costs and who is ready to pay or deliver it
to the rightful claimant, such other person
may institute a suit of interpleader against
all the claimants for the purpose of
obtaining a decision as to the person to
whom the payment or delivery shall be
made and of obtaining indemnity for
himself:

Provided that where any suit is
pending in which the rights of all parties
can properly be decided, no such suit of
interpleader shall be instituted.

24. This is the substantive Section
under which the interpleader suits owe
their origin. The same are regulated in
tems of Order 35 C.P.C.

25. To interplead means to litigate
with each other to settle a point concerning a
third party. Section 88 of the C.P.C. enacts
that two or more persons claiming adversely
to one another, the same debt, sum of money
or other property, movable or immovable
property from a person who does not claim
any interest therein except the charges and
costs incurred by him and is ready to pay or
deliver the same to the rightful claimant may
file an interpleader suit.

26. The object of the aforesaid is to
get claims of rival defendants adjudicated.
It is the process where the plaintiff calls
upon the rival claimants to appear before
the Court and get their respective claims
decided. The decision of the Court in an
interpleader suit affords idemnity to the
plaintiff on the payment of money or
delivery of property to the person whose
claim has been upheld by the Court.

27. Before an interpleader suit can be
instituted, the following conditions must
be fulfilled:-

(i) There must be a debt, sum of
money or some property movable or
immovable due from the plaintiff; (ii)
There must be two or more persons
claiming adversely to one another; (iii)
The plaintiff must not have any interest
therein other than charges and cost; (iv)
The plaintiff must be ready and willing to
pay or deliver it to the rightful claimant;
(v) The suit must be bonafide and there
should not be collusion between the
plaintiff and or any of the defendants/rival
claimants.
114 INDIAN LAW REPORTS ALLAHABAD SERIES

28. Rule 1 of Order 35 clearly
indicates that in every interpleader suit the
plaint shall in addition to other statements
necessary for claims say that the plaintiffs
claims no interest in the subject matter in
dispute and that the claim made by the
defendants severally and there is no
collusion between the plaintiff and any of
the defendants.

29. In the present case at hand, Rule
5 of Order 35 is in the eye of the
controversy and as such for ready
reference is being reproduced hereinafter:-

5. Agents and tenants may not
institute interpleader suits.- Nothing in
this Order shall be deemed to enable
agents to sue their principals, or tenants to
sue their landlords, for the purpose of
compelling them to interplead with any
persons other than persons making claim
through such principals or landlords.
Illustrations

(a) A deposits a box of jewels
with B as his agent. C alleges that the
jewels were wrongfully obtained from him
by A, and claims them from B. B cannot
institute an interpleader-suit against A and
C.

(b) A deposits a box of jewels
with B as his agent. He then writes to C
for the purpose of making the jewels a
security for a debt due from himself to C.
A afterwards alleges that C s debt is
satisfied, and C alleges the contrary. Both
claim the jewels from B. B may institute in
interpleader-suit against A and C.

30. From the bare perusal of the
aforesaid provisions, it would indicate that
the first part of Rule 5 prohibits an agent
or a tenant from disputing the title of his
principal or his landlord. The second part
thereof provides an exception to the
general rule. It will also be relevant to note
that Rule 5 is accompanied by illustration
which had already been reproduced
hereinabove, first.

31. The illustrations (a) explains the
principle as incorporated in the first part of
the Rule 5 while the illustration (b) deals
with the case of the exception as in case of
third party (stranger) claiming through the
principal.

32. The provision prohibiting that
tenant from instituting an interpleader suit
against his landlord is based on the
doctrine of estoppel as the tenant cannot
challenge the title of his landlord which is
based on the principle of Section 116 of
the Evidence Act, 1872. The aforesaid
Rule 5 of Order 35 precludes the tenant
from instituting an interpleader suit against
his lanlord and any person other than a
person
making
claim
through
such
landlord.

33. Thus, applying the principles to
the case at hand, it would be clear that the
plaintiff in his plaint has clearly stated that
he was inducted by late Lala Murlidhar,
thus, on the plain reading of the aforesaid
provision, the suit was not maintainable
against Sri Murlidhar. However, the
problem is little different, inasmuch as, Sri
Murlidhar has expired and he was survived
by his daughter Smt. Anar Devi and son
late Sri Badri Prasad. Significantly, both
Smt. Anar Devi and Sri Badri Prasad have
also expired and the defendants to the suit
are the legal heirs of Smt. Anar Devi and
Sri Badri Prasad.

34. Now, whether they would be
covered under the terms of landlord or
they would be covered under the exception
provided in the second part i.e. persons
4 All. Jagdish Chandra & Ors. Vs. Krishna Mohan Aggrawal
115
other than claiming through the "principal
or landlord".

35. To answer the aforesaid, it would
be relevant to point out that the tenancy in
question is governed by the Uttar Pradesh
Urban Buildings (Regulations of Letting
and Rent Eviction) Act , 1972. The
aforesaid Act is a Code in itself and
governs all rights, obligations of letting,
eviction relating to the properties governed
by the said Act both with regard to the
landlord and the tenants. It is in light
thereof it would reveal that once it is
admitted by the plaintiff that Murlidhar
was the landlord who had inducted the
plaintiffs, upon his death, his legal heirs
automatically step into the shoes and both
Smt. Anar Devi and Sri Badri Prasad
would be the landlord. Upon their death,
their legal heirs jointly become the
landlords of the property in question.
Another fact which needs to be noticed
here is that the suits for eviction were filed
by Smt. Anar Devi and Sri Badri Prasad in
their life times in the year 1998. It has
been informed that there are two sets of
proceedings which are pending (i) SCC
Suit seeking arrears of rent and ejectment
under Section 20 of U.P. Act No. 13 of
1972 and (ii) seeking release of the
property in terms of Section 21 of the U.P.
Act No. 13 of 1972.

36. It would be noticed that the
plaintiffs had been depositing the rent in the
eviction suit and as such as per Section 3 (j)
of the U.P. Act of 1972 the word "landlord"
has been defined which reads as under:-

(j) "Landlord", in relation to a
builiding, means a person to whom its rent
is or if the building were let, would be,
payable and includes, except in Clause (g)
the agent or attorney or such person;

37. Once the plaintiffs who could not
dispute the factual position and had
already deposited the rent and continued to
deposit rent in the SCC suit in favour of
the defendants who have been substituted
as landlords, they are prevented from
taking this plea to state that there are two
separae sets of person claiming and hence
the requirement of an interpleader suit.

38. It will also be relevant to point
out that though there are many defendants
and heirs of Smt. Anar Devi and Sri Badri
Prasad but nevertheless in so far as the
plaintiffs are cocerned, all of them are the
joint landlords of the plaintiffs and this is
by operation of law in terms of U.P. Act
No. 13 of 1972. Having said that, it would
be clear that as far as the defendants of the
interpleader suit are concerned, they are
the landlords and they do not fall within
the exception as contained in Rule 5 of
Order 35.

39. Thus, this Court is of the view
that in so far as the embargo contained in
Order 35 Rule 5 is concerned, the same
was squarely applicable in the case of the
plaintiffs and therefore the two courts have
not committed any error in rejecting the
plaint on the aforesaid embargo contained
in Order 35 Rule 5 C.P.C.

40. Coming to the other submissions
which is merely found since the bar has
already been upheld by the Court,
however, it would be appropriate to meet
the other submission of the learned
counsel for the appellants as well.

41. This Court finds that as far as the
cause of action as pleaded in the plaint is
concerned, the same is not appropriate.
The plaintiff has grossly erred in resorting
to gross suppression and concealment of
116 INDIAN LAW REPORTS ALLAHABAD SERIES
the material facts. It was the duty of the
plaintiff to have come before the Court
with clean hands, inasmuch as, it was their
duty to have disclosed the pendency of all
the suits which were filed and had been
pending since 1998.

42. Though, in the paper book of the
present second appeal, the appellant has
filed a copy of an order passed by the High
Court dated 26.11.2013 in W.P. No. 4728
(MS) of 2005 (Deewan Chandra Vs. ADJ,
Court No. 1, Lakhimpur Kheri and
Another). This order relates to the dispute
in question. Sri Deewan Chandra is none
other than the plaintiff-appellant no. 2
herein. Even the factum of the Kishan
aforesaid writ petition was concealed by
the plaintiff. While passing reference has
been made in paragraph 11 of the plaint
that a suit has been filed by the defendant
nos. 1 to 6 and defendant nos. 8, 9 and 10
have demanded rent, however, this in itself
was not a complete disclosure to make the
cause of action subsisting.

43. It will be relevant to point out
that the Apex Court in the case of T.
Arivandandam Vs. T.V. Satyapal and
Another reported in 1977 (4) SCC 467
while dealing with Order 7 Rule 11 has
held as under:-

"5. ............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 Or. 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............."(emphasis added)

44. The Apex Court in the case of
Sopan Sukhdeo Sable and Others Vs.
Assistant
Charity
Commissioner
and
Others; (2004) 3 SCC 137. In paragraph
17 of the aforesaid judgment, Supreme
Court held:-

"17. ............................. The real
object of Order 7 Rule 11 of the Code is to
keep out of courts irresponsible law suits.
Therefore, Order 10 of the Code is a tool
in the hands of the courts by resorting to
which and by searching examination of the
party, in case the court is prima facie of
the view that the suit is an abuse of the
process of the court, in the sense that it is
a bogus and irresponsible litigation, the
jurisdiction under Order 7 Rule 11 of the
Code can be exercised." (emphasis added)

45. Similarly in the case of Popat and
Kotecha Property Vs. State Bank of India
Staff Association; (2005) 7 SCC 510, in
paragraph-20 again, the Apex Court takes
exactly the same view.

46. In the case of I.T.C. Limited Vs.
Debts Recovery Appellate Tribunal and
Others ; (1998) 2 SCC page 70, in
paragraph-16 of which, the Court had
stated:-

"16. The question is whether a
real cause of action has been set out in the
plaint or something purely illusory has
been stated with a view to get out of Order
7 Rule 11 CPC. Clever drafting creating
illusions of cause of action are not
4 All. Jagdish Chandra & Ors. Vs. Krishna Mohan Aggrawal
117
permitted in law and a clear right to sue
should be shown in the plaint.

(See T. Arivandandam Vs. T.V.
Satyapal5 )"

47. So also in the case of Raj Narain
Sarin (Dead) Through LRs. and Others Vs.
Laxmi Devi and Others; (2002) 10 SCC
501, after considering the facts in the
concluding paragraphs-8, the Court held:-

"8. ................................... The
plaint is totally silent on that score,
though, however, the existence of the deed
of sale noticed above stands accepted by
the plaintiff. The litigation, in our view,
cannot but be termed to be utterly
vexatious and abuse of the process of
court, more so by reason of the fact that
the deed of sale being executed as early as
1941 stands unassailed for a period of
over 50 years. The decision of this Court
in
T.
Arivandandam1
has
its
due
application and having regard to the
decision as noticed above and upon
consideration of the relevant provisions as
engrafted in the Code itself, we have no
hesitation in accepting the order of the
learned
Additional
District
Judge...................."(emphasis added)

48. Further reference may be made to
the case of Maria Margarida Sequeira
Fernandes and Others Vs. Erasmo Jack De
Sequeira (Dead) through L.Rs. 2012 (5)
SCC 370. In this case the Supreme Court
has laid down at length the duty of the
Court in finding of the truth and also with
regard to the pleadings and the manner in
which they are to be made by the parties.
Relevant paragraphs of the said judgment
are:-

"32.
In
this
unfortunate
litigation, the Court's serious endeavour
has to be to find out where in fact the truth
lies.

37. Lord Denning, in the case of
Jones v. National Coal Board [1957] 2
QB 55 has observed that:

"In the system of trial [that we]
evolved in this country, the Judge sits to
hear and determine the issues raised by
the parties, not to conduct an investigation
or examination on behalf of [the] society
at large, as happens, we believe, in some
foreign countries."

38. Certainly, the above, is not
true of the Indian Judicial system. A judge
in the Indian System has to be regarded as
failing to exercise its jurisdiction and
thereby discharging its judicial duty, if in
the guise of remaining neutral, he opts to
remain passive to the proceedings before
him. He has to always keep in mind that
"every trial is a voyage of discovery in
which truth is the quest". In order to bring
on record the relevant fact, he has to play
an active role; no doubt within the bounds
of the statutorily defined procedural law.

40.
World
over,
modern
procedural Codes are increasingly relying
on
full
disclosure
by
the
parties.
Managerial powers of the Judge are being
deployed to ensure that the scope of the
factual controversy is minimized.

41. In civil cases, adherence to
Section 30 CPC would also help in
ascertaining the truth. It seems that this
provision which ought to be frequently
used is rarely pressed in service by our
judicial officers and judges.

51. In the administration of
justice, judges and lawyers play equal
roles. Like judges, lawyers also must
ensure
that
truth
triumphs
in
the
administration of justice.

52. Truth is the foundation of
justice. It must be the endeavour of all the
judicial officers and judges to ascertain
118 INDIAN LAW REPORTS ALLAHABAD SERIES
truth in every matter and no stone should
be left unturned in achieving this object.
Courts must give greater emphasis on the
veracity of pleadings and documents in
order to ascertain the truth. "

49. In view of the above, it was not
open for the plaintiff to have created an
illusion of a cause of action. The plaintiff
cannot be permitted to resort to clever
drafting to get over the rigours of Order 7
Rule 11 C.P.C.

50. This Court is also fortified in its
view in light of the decision rendered by a
co-ordinate Bench of this Court in the case
of Mudit Verma Vs. Ram Kumar and
Another reported in 2018 (8) ADJ 52
wherein the provisions of Order 7 Rule 11
in
context
with
suppression
and
concealment has been considered. The
Coordinate Bench of this Court relying
upon the various Supreme Court decisions
held as under and the relevant portion
thereof is being reproduced:-

"9. So far as the pleadings are
concerned,
again
in
the
aforesaid
judgment, Supreme Court has cast duty
upon the Courts to be particular about the
same. Reference may be made to the
following paragraphs:

"61. In civil cases, pleadings are
extremely important for ascertaining the
title and possession of the property in
question.

68. In order to do justice, it is
necessary to direct the parties to give all
details of pleadings with particulars. Once
the title is prima facie established, it is for
the person who is resisting the title
holder's claim to possession to plead with
sufficient particularity on the basis of his
claim to remain in possession and place
before the Court all such documents as in
the ordinary course of human affairs are
expected to be there. Only if the pleadings
are sufficient, would an issue be struck
and the matter sent to trial, where the onus
will be on him to prove the averred facts
and documents.

69. The person averring a right
to continue in possession shall, as far as
possible, give a detailed particularized
specific pleading along with documents to
support
his
claim
and
details
of
subsequent conduct which establish his
possession.

71. Apart from these pleadings,
the Court must insist on documentary
proof in support of the pleadings. All those
documents would be relevant which come
into existence after the transfer of title or
possession or the encumbrance as is
claimed. While dealing with the civil suits,
at the threshold, the Court must carefully
and critically examine pleadings and
documents.

72. The Court will examine the
pleadings for specificity as also the
supporting material for sufficiency and
then pass appropriate orders.

73. Discovery and production of
documents and answers to interrogatories,
together with an approach of considering
what in ordinary course of human affairs is
more likely to have been the probability, will
prevent many a false claims or defences from
sailing beyond the stage for issues.

74. If the pleadings do not give
sufficient details, they will not raise an
issue, and the Court can reject the claim
or pass a decree on admission. On vague
pleadings, no issue arises. Only when he
so establishes, does the question of
framing an issue arise. Framing of issues
is an extremely important stage in a civil
trial. Judges are expected to carefully
examine the pleadings and documents
before framing of issues in a given case.
4 All. Jagdish Chandra & Ors. Vs. Krishna Mohan Aggrawal
119

77. The Court must ensure that
pleadings of a case must contain sufficient
particulars. Insistence on details reduces
the ability to put forward a non-existent or
false claim or defence. In dealing with a
civil case, pleadings, title documents and
relevant records play a vital role and that
would ordinarily decide the fate of the
case."
(emphasis added)"

"16. From the facts noted above,
it is also clear that the respondentsplaintiffs
made
serious
concealment
regarding possession in his plaint. In a
suit for injunction, possession is of great
relevance. Plaintiff cannot be permitted to
make a false statement or conceal true
facts from court with regard to same.
What is the effect of the said serious
concealment with regard to possession
made from the Court? Such a question
came
for
consideration
before
the
Supreme Court, besides the afroresaid
cases, in case of S.P. Chengalvaraya
Naidu (Dead) by LRs. Vs. Jagannath
(Dead) by LRs. and Others, reported in
(1994) 1 SCC 1. In the said case, the
plaintiffs concealed the fact of execution of
a release date from the Court which came
in knowledge of the Court later. In
paragraph 5 and 6, the Supreme Court
held:-

"5. ........................... We do not
agree with the High Court that "there is no
legal duty cast upon the plaintiff to come
to court with a true case and prove it by
true evidence". The principle of "finality of
litigation" cannot be pressed to the extent
of such an absurdity that it becomes an
engine of fraud in the hands of dishonest
litigants. The courts of law are meant for
imparting justice between the parties. One
who comes to the court, must come with
clean-hands. We are constrained to say
that more often than not, process of the
court is being abused. Property-grabbers,
tax- evaders, bank-loan-dodgers and other
unscrupulous persons from all walks of
life find the court - process a convenient
lever
to
retain
the
illegal-gains
indefinitely. We have no hesitation to say
that a person, who's case is based on
falsehood, has no right to approach the
court. He can be summarily thrown out at
any stage of the litigation.

6.
....................................A
litigant, who approaches the court, is
bound to produce all the documents
executed by him which are relevant to the
litigation. If he withholds a vital document
in order to gain advantage on the other
side then he would he guilty of playing
fraud on the court as well as on the
opposite party. "
(Emphasis added)"

18. The Supreme Court in case
of Bharvagi Constructions and Another
Vs. Kothakapu Muthyam Reddy and
Others, reported in 2017 (35) LCD 2505:
2017 SCC On Line 1053, where a similar
objection was raised and the Court held
that it is the law declared by the Court,
which is also covered under the expression
occurring in Order 7 Rule 11(d) of the
Court. Relevant paragraphs of the said
judgment are as follows:-

"32. The question as to whether
the
expression
"law"
occurring
in
clause(d) of Rule 11 of Order 7 of the
Code includes "judicial decisions of the
Apex Court" came up for consideration
before
the
Division
Bench
of
the
Allahabad High Court in Virender Kumar
Dixit Vs. State of U.P., 2014(9) ADJ 1506.
The Division Bench dealt with the issue in
detail in the context of several decisions
on the subject and held in para 15 as
under:

"15. Law includes not only
legislative enactments but also judicial
120 INDIAN LAW REPORTS ALLAHABAD SERIES
precedents. An authoritative judgment of
the Courts including higher judiciary is
also law."

33. This very issue was again
considered by the Gujarat High Court
(Single Bench) in the case of Hermes
Marines Limited Vs. Capeshore Maritime
Partners F.Z.C. & Anr. (unreported
decision in Civil Application (OJ) No.144
of 2016 in Admiralty Suit No.10 of 2016
decided on 22.04.2016).