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The Code Of Civil Procedure (Amendment) Act, 1956
The Indian Penal Code, 1860
Nahar Spinning Mills Ltd. vs Vijay Hosiery Co. Ltd. And Ors. on 4 January, 2006
Sarvinder Singh vs Dalip Singh & Ors on 2 August, 1996
Ramesh Hiranand Kundanmal vs Municipal Corporation Of Greater ... on 4 March, 1992

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Delhi High Court
Ms. Susanne Lenatz And Anr. vs C.J. International Hotels ... on 9 July, 2007
Author: B D Ahmed
Bench: B D Ahmed

JUDGMENT

Badar Durrez Ahmed, J.

1. This application under Order VII Rule 11 read with Order 1 Rule 10(2) read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC) has been filed on behalf of defendant Nos. 1-3. In the first instance, the defendants have prayed that the plaint be rejected as it does not disclose a cause of action against the defendant Nos. 1-3. The rejection of the plaint has also been sought on the ground that the same is barred by time. In the alternative it has been prayed that the names of the defendant Nos. 1-3 be deleted from the array of the parties.

2. In the plaint it is alleged that the plaintiff No. 1, a German national, was employed by the plaintiff No. 2 as a flight attendant with the German Air Force. The defendant No. 1 (C. J. International Hotels Limited) owns the defendant No. 3 hotel (Le Meridien Hotel, Windsor Place, New Delhi). The defendant No. 2 is the Chairperson and Managing Director of the defendant No. 1 company. The defendant No. 4 is the proprietor of Oswal Gems, situated in shop No. 5 within the hotel premises of the defendant No. 3. It is in this shop that the incident, which is the subject matter of the suit, took place. The defendant No. 5 is the son of defendant No. 4. It is alleged that the defendant No. 5 committed criminal assault upon the plaintiff No. 1. The defendant No. 6 is an employee of defendant No. 4, who was allegedly present in the premises at the time of the occurrence of the incident.

3. It is alleged that on 01.11.1996, the plaintiff No. 1 accompanied the German Federal Minister for Economic Affairs, Mr Guenther Rexrodt, on his flight, in her capacity as a flight attendant to New Delhi, for a stop over in Delhi on the way back from Jakarta to Germany. The German delegation accompanying the Minister was booked for stay at the defendant No. 3 hotel from 01.11.1996 to 02.11.1996. The plaintiff, as part of the delegation, checked into the hotel and was allotted room No. 1265. On 01.11.1996 itself, at about 7 pm, the plaintiff No. 1 went to the shop of the defendant No. 4 (Oswal Gems) with a view to purchase some jewellery items. It is alleged that at that time the defendant Nos. 5 and 6 were present in the shop. It is further alleged that the defendant No. 5 met the plaintiff inside the shop and invited her into a cabin constructed within the shop with the pretext of showing her jewellery. He asked the plaintiff No. 1 to sit down and showed her some jewellery items. Soon thereafter the defendant No. 5 alleged went out of the cabin and returned with a statue, which he suddenly struck the plaintiff with on her head and gave her three powerful blows. It is alleged that the plaintiff No. 1 started bleeding profusely and she almost lost consciousness. Thereafter, it is alleged that the defendant No. 5 attempted to rape the plaintiff No. 1. It is further alleged in the plaint that the plaintiff No. 1 put up firm resistance as a result of which the defendant No. 5 was not able to commit rape. The defendant No. 5 was allegedly angered by this and threatened the plaintiff that he would kill her. The defendant No. 5 once again left the cabin to return shortly thereafter holding a knife in his hand. Apparently, the defendant No. 5 pushed the plaintiff No. 1 into a corner and struck her in the stomach with the knife. But, fortunately, due to the resistance put up by the plaintiff No. 1, the knife did not pierce the skin. The plaintiff No. 1 was able to gather all her courage and acted with composure and presence of mind and started talking with the defendant No. 5 to placate and pacify him. According to the plaintiff No. 1, the talk, fortunately, had a salutary effect on the defendant No. 5 and after about 30 to 35 minutes the plaintiff was permitted to gather her clothes and leave the shop.

4. It is alleged that thereafter the plaintiff No. 1 went to the lobby of the defendant No. 3 hotel and in a completely dazed state of mind, suffering extreme mental and physical trauma, sat down on a sofa in the lobby to compose herself. A little while later the plaintiff No. 1 got into the elevator and went up to her room where her trauma apparently increased and she wept bitterly. The narration of incidents which followed goes on in the plaint. What is material to note is that when this incident was narrated to the staff of the defendant Nos. 1-3, they sought to underplay the same and were allegedly interested in suppressing and concealing the incident. However, when the colleagues of the plaintiff No. 1 reached the hotel and the plaintiff No. 1 was examined by the Medical Squadron of Air Transport Wing, Germany, who administered her with first aid, she was in a position, the following day, that is, on November 2, 1996 to lodge an FIR No. 430/96 with Police Station Parliament Street, New Delhi. A case under Section 342/323/506/376/511 of the Indian Penal Code, 1860 was registered by the police. The case emanating from that is continuing.

5. The plaintiff filed the suit claiming damages from all the defendants jointly and severally for a sum of DM 2,00,000 in respect of criminal assault resulting in the injury to the head, the attempted rape, the stab wounds, the insult and violation of modesty of the plaintiff No. 1 and for the permanent mental psychosis suffered by the plaintiff No. 1 as a consequence of the incident. The plaintiff No. 2 has also made a claim for damages in the amount of the salary paid to the plaintiff No. 1. The defendant Nos. 1-3 have also been alleged to be responsible for causing mental trauma and physical harm to the plaintiff No. 1. The reasons given in the plaint are that the defendant No. 3 hotel professes, projects, promotes and advertises itself as a top class hotel with five star rating, offering and assuring the best services and luxuries. As per the plaintiffs, the defendant No. 3 hotel thus prompts and invites its guests to stay with it and that it was on the basis of such advertisement and projection of its high standards by the defendant No. 3 hotel that the plaintiff No. 1 along with the German delegation decided to stay in the said hotel. According to the plaintiffs the above constitutes a proposal, acceptance and promise whereby a formal and binding contract was established between the defendant Nos. 1 and 3 as promisors and the plaintiff No. 1 as promisewhereunder the defendant Nos. 1 and 3, in consideration of a high price paid by, or on behalf of, the plaintiff No. 1, promised to provide her the best services, safe and comfortable stay at the hotel, which included security as well as the assurance against physical harm or injury from any source or quarter whatsoever while inside the premises of the defendant No. 3 hotel. It is alleged in the plaint that the defendant No. 3 was under a contractual obligation and was directly responsible to secure and ensure the safety of its guests including the plaintiff No. 1 during the time she was inside the hotel premises. Since the defendant No. 3 failed in the performance of this obligation, the defendant Nos. 1-3 were also liable for the negligence under the law of torts. It was further contended that the defendant No 3 had given out on lease / rent shops within its premises where business offices and retail outlets had been opened. It was the duty of defendant No. 3 to have not rented out / leased the shop to persons such as defendant No. 4, 5 and 6. According to the plaintiffs, the liability of the defendant No. 3 hotel in the suit for breach of contract, negligence under the law of torts and vicarious liability for the negligence by the defendant No. 4 and criminal attack by the defendant No. 5 stands established.

6. It is in the background of these averments contained in the plaint that the aforesaid application under Order VII Rule 11 read with Order 1 Rule 10(2) CPC needs to be considered. Firstly, it has been contended by the applicants/ defendants 1-3 that the plaint discloses no cause of action against the applicants. According to the applicants the defendant No. 5 and for that matter the defendant No. 4 are not in the employment of or under the control of the defendant Nos. 1-3. The shop Oswal Gems is under license to the defendant No. 4 and there has been no representation that the shop belongs to the defendant No. 1. It is contended that for any claims against any dealings in the shop, the applicants / defendant Nos. 1-3 could not have been made liable, far less for the alleged criminal act of the defendant No. 5, which is the substance of the plaint. It is submitted that in the light of these facts, there is no cause of action against the applicants / defendant Nos. 1-3, either in contract or in torts. It was also contended that there is no relationship of control over the defendant Nos. 4 and 5 and the defendant Nos. 4 and 5 did not in any manner hold themselves out to be agents of the applicants / defendant Nos. 1-3. It was further contended that the defendant Nos. 4 and 5 did not have any past criminal record to the knowledge of the defendant Nos. 1-3 and there were no anticipated gains to be held by the applicants / defendant Nos. 1-3 from the alleged act of the defendant No. 5. Hence, there could be no vicarious liability of the defendant Nos. 1-3 in respect of the acts of the defendant No. 5. It was submitted that the plaintiff No. 1 went to the shop of her own volition and no FIR was filed against the applicants / defendant Nos. 1-3. It was, therefore, contended that no part of the cause of action arises against and or in respect of the applicants / defendant Nos. 1-3 and that, therefore, the plaint ought to be rejected under Order VII Rule 11 CPC.

7. The learned Counsel for the plaintiffs supported the averments made in the plaint and sought to counter these arguments. It will not be necessary to go into any detailed discussion as to whether a cause of action arises in respect of the defendant Nos. 1-3 or not. A plaint cannot be rejected under Order VII Rule 11 CPC merely because the cause of action does not arise in respect of some of the defendants. As long as there is a cause of action for filing of the suit and the same is disclosed in the plaint, Order VII Rule 11 CPC would not come into play. In Nahar Spinning Mills Ltd. v. Vijay Hosiery Co. Ltd and Ors. , I had occasion to examine the scope and ambit of

Order VII Rule 11 CPC and in particular Clause (a) thereof which deals with cause of action. It is clear that Order VII Rule 11(a) stipulates that the plaint ought to be rejected where it does not disclose a cause of action. In Nahar Spinning Mills (supra), after discussing the entire case law on the subject, this Court had observed that the Court cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. It was observed that it is well settled that there cannot be a partial rejection of the plaint. It is only when the plaint read as a whole does not disclose any cause of action, can the same be rejected under Order VII Rule 11(a). Rejection of only a particular portion of the plaint is not permissible. After considering the decisions of the Supreme Court in the case of Sopan Sukhdeo Sable v. Asstt. Charity Commr. , Roop Lal

Sathi v. Nachhattar Singh Gill (1982) 3 SCC 487 and D. Ramachandran v. R.V. Janakiraman and several other decisions, this

Court in Nahar Spinning Mills (supra) held as under:

The above discussion reveals that cause of action refers to a bundle of facts the existence of which entitles one person to obtain from the Court a remedy against the other. It must also be remembered that the pleadings must only contain a statement in a concise forms of material facts on which the party realise for his claim or his defense as the case may be but in the evidence by which they are to be proved. (see Order VI Rule 2(1)]. It is also well settled that the plaint must be read as a whole to ascertain that it discloses a cause of action. The plaint cannot be defective and those portions which do not disclose cause of action cannot alone be rejected. Either the plaint survives in its entirety or is rejected in its entirety. If a defendant states that no relief can be claimed against him on the averments contained in the plaint itself, he cannot ask for rejection of the plaint under Order VII Rule 11(a) as long as the plaint as a whole discloses a cause of action although against other defendants. Such a defendant can only, propose in both the provisions of Order I Rule 10 for seeking deletion of his name as a party to the suit....

Viewed in this light, it is obvious that the plaint cannot be rejected. Even if it is assumed that there is no cause of action against the defendant Nos. 1-3, the plaint definitely discloses a cause of action in respect of the other defendants. Although it is not necessary for the purposes of this application to go into the question as to whether there is any cause of action in respect of the defendant Nos. 1-3, upon a mere reading of the plaint, it cannot be said that the plaintiffs do not have any cause of action. It may very well turn out that ultimately the plaintiffs are not able to establish their case on facts and on law against the defendant Nos. 1-3 and no relief may be given against such defendants, but at this stage, by merely examining the averments contained in the plaint, it cannot be said that the plaintiffs do not have any cause of action even in respect of the defendant Nos. 1-3.

8. The next point urged on behalf of the applicants / defendant Nos. 1-3 was that the claims made by the plaintiffs in the suit were barred by limitation. As such the plaint ought to be rejected under Order VII Rule 11(d) CPC, which stipulates the rejection of a plaint where the suit appears from the statements in the plaint, to be barred by any law. In this context, it was pointed out that the alleged incident is of 01.11.1996 and the period of three years provided under The Limitation Act, 1963 for claims of the nature made in the plaint, expired on 01.11.1999. The suit was, admittedly, filed on 22.11.1999. It was, therefore, beyond the time prescribed for filing such a suit and, therefore, the provisions of Order VII Rule 11(d) clearly came into play and the plaint was liable to be rejected.

9. At first blush, this appears to be a convincing argument. However, the matter is not so simple. Order VII Rule 6 CPC provides that where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the grounds upon which exemption from such law is claimed. There is a proviso which enables the Court to permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint. This proviso, of course, does not come into play in the present case. The point is that a suit may be instituted after the expiration of the period prescribed by the law of limitation. The plaintiff is required to indicate in the plaint itself the ground upon which exemption from such law is claimed. It is obvious that if no such ground is indicated or no such exemption is claimed, then the plaint, if it is beyond the period prescribed by the law of limitation, would be liable for rejection straightaway under Order VII Rule 11(d) CPC. The facts in the present case indicate that the plaintiffs were mindful of these provisions. In the first instance, it has been stated that the period of limitation had not run out because of circumstances indicated in paragraph 41 of the plaint. However, in the alternative, it was averred in plaint that the plaintiffs are entitled to exemption from the law of limitation for the reason that the plaintiff No. 1 suffered from psychosis due to the trauma caused by the incident. This prevented her from acquiring knowledge about her legal right to file a suit against the defendants for damages until March, 1998. There are other circumstances and grounds in the plaint which have been set up by the plaintiffs for seeking exemption from the application of the law of limitation.

10. It is, therefore, clear that the plaintiffs have invoked the provisions of Order VII Rule 6 CPC and claimed exemption. Whether they are entitled to the exemption or not would depend upon the plaintiffs establishing their averments by leading evidence in respect thereof. This is not the stage at which the question of whether the plaintiffs are entitled to the exemption or not, can be decided. The same can be decided only upon evidence. This being the position, the plaint cannot be rejected on this ground also.

11. This leaves me with the discussion of the alternative prayer of the defendant Nos. 1-3 and that is of deleting the names of the defendant Nos. 1-3 from the array of parties. This prayer is essentially one under Order 1 Rule 10(2) CPC on the ground that the defendant Nos. 1-3 are neither necessary parties nor proper parties. This has to be examined from the standpoint of the averments made in the plaint. As far as the question of who is a necessary party and who is a proper party, the same is well settled. A necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of the question involved in the proceeding. If any authorities are needed for this proposition, they are:

(i) Sarvinder Singh v. Dalip Singh

(ii) Aliji Momonji & Co. v. Lalji Mavji

(iii) U. P. Awas Evam Vikas Parishad v. Gyan Devi

(iv) Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and

(v) Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar .

12. In the light of the discussion above, based upon the averments made in the plaint, it cannot be said that the defendant Nos. 1-3 are not even proper parties. Their presence would definitely be necessary for a complete and a final decision of the questions involved in the suit. In fact, as per the pleadings, claims have also been made against the defendant Nos. 1-3. Once this is the case, it cannot be held that the names of the defendant Nos. 1-3 be struck off from the array of parties.

Accordingly, this application is dismissed.