Judgment:
ORDER
Dipak Misra, J.
1. Being aggrieved by the order dated 12-7-95 passed by the learned Civil Judge (Senior Division) First Court, Cuttack in Title Suit No. 220 of 1995 whereby the said trial Judge accepted the suit as maintainable and declined to deal with the point of maintainability as envisaged under Order 7, Rule 11 of the Code of Civil Procedure, the petitioner has approached this Court in the present revision.
2. The opposite party as plaintiff instituted the suit in the court of the Civil Judge (Senior Division) First Court, Cuttack with a number of prayers which are as follows :--
'(a) For a declaration that all the goldornaments found in the locker No. 113 on4-9-91 when the same was broken openbelong to plaintiff.
(b) For a direction to defendant No. 1 to deliver the gold ornaments to the plaintiff on payment of locker hire charges from January, 1985 till date of delivery of the ornaments to the plaintiff.
(c) Permanently restraining defendant No. 4 from claiming the said gold ornaments.
(d) Any other relief or reliefs to which the plaintiff may be found entitled.
(e) Cost of the litigation.'
3. With regard to the cause of action, in para-39 of the plaint the plaintiff pleaded thus:--
'That the cause of action for the suit arose on 4-9-91 when the locker No. 113 was broken open, on 5-9-91 when the defendant No. 5 declined to deliver the gold ornaments found in the locker in question to the plaintiff, on 24-1-1994 when the ex parte order was passed ; in C. D. Case No. 351 of 1993 and on 23-12-1994 when the plaintiff received the copy of the ex parte order from defendant No. 2.'
4. Before the suit was taken up for admission, the petitioner entered appearance and questioned the maintainability of the suit as well as prayed for dismissal of the same on the ground of limitation.
5. The petitioner brought certain facts to the notice of the Court below which are worth-mentioning. The petitioner was allotted locker No. 113 in the Barjrakabati Road Branch, Cuttack of UCO Bank where he had his Savings Bank Account bearing No. 2094. Since 1980 the petitioner had kept his valuable gold ornaments and was operating the locker on payment of rent. The key of the locker having been lost, the petitioner informed and requested the bank in writing on 31-5-86 to replace the lock of the locker at his cost and intimate him the date of replacement, so as to enable him to remain present atthe time of breaking open of the locker. In spite of requests the bank did not intimate him anything and therefore the petitioner was compelled to issue a written reminder on 24-2-92. Later one came to know that the locker had already been opened and all his gold ornaments had been kept in safe custody of the bank after an inventory.
6. On 26-2-92 the petitioner submitted a written representation to the bank for return of his ornaments and as the same was not done, the petitioner initiated a proceeding under Section 12 of the Consumer Protection Act, 1986 forming the subject-matter of the Consumer Dispute Case No. 351 of 1993 before the District Consumer Forum, Cuttack for return of his ornaments and also payment of damages on account of deficiency in service. Before the consumer forum the bank pleaded that one Shri R. K. Panda (plaintiff in the present suit), the then Manager-in-charge of the Branch, was a rival claimant for the said ornaments for which the bank refused to return the ornaments to the petitioner. The deficiency of service was also disputed. It was admitted that Locker No. 113 had been allotted to the petitioner and rent therefore was being collected from the petitioner's SB Account till 1988. Coming to know about the rival claim of Shri R.X Panda, the petitioner impleaded him as a party in the aforesaid consumer dispute. Ultimately the District Consumer Forum directed the bank to return the ornaments to the petitioner and awarded a damage of Rs. 5,000/- towards deficiency in service. Feeling aggrieved by the said order, the said R. K. Panda preferred Consumer Dispute Appeal No. 430 of 1994 on the ground that he had filed Title Suit No. 220/95 in the court of the Civil Judge (Senior Division), First Court, Cuttack praying to declare the gold ornaments in question as belonging to him and for further direction to the bank to deliver the said gold ornaments to him. The petitioner after getting this information entered appearance in the suit and contested the same before the same was taken up for admission on the ground of maintainability.
7. In the suit, the learned Civil Judge tookup the point of maintainability as suggested in the office note as per the provisions of Order 7, Rule 11, C. P. C. The petitioner contested the same by filing certified c6py of the order dated 24-11-94 passed by the District Consumer Forum in Consumer Dispute No. 351 of 1993. Before the learned Civil Judge the petitioner contended that the suit was barred by law of limitation having been filed three years after the cause of action which arose on 5-9-91; that the suit was hit by the principles of res judicata as there had already been an adjudication by the consumer forum which cannot be re-agitated before the Civil Court; that the suit was grossly under-valued with payment of insufficient court-fees; and that a final order having come into existence after disposal of C. D. No. 351/93 the suit was not maintainable, inasmuch as any order that would be passed in the suit would bring in two conflicting orders, one passed by the consumer forum and the other by the civil Court.
8. The learned Civil Judge took up the preliminary objections and addressed himself with regard to the plea of limitation and maintainability because of absence of cause of action. He took note of the fact though the suit was filed on 12-5-95, it was mentioned in the plaint that the cause of action had arisen on 4-9-91 and due to certain circumstances, the cause of action had also arisen on 24-11-94 and 23-12-94, and accordingly hold that the suit could not be dismissed in limine and the question would be gone into at the time of hearing of the suit. This order of the learned Civil Judge is the cause of grievance of the present petitioner.
9. Mr. M. S. Panda, learned counsel for the petitioner, assailing the impugned order submits that the court below has only addressed itself with regard to the cause of action and the suit being barred by limitation, but has not addressed itself with regard to the suit being hit by res judicata and not being maintainable on other grounds for which there was material irregularity in deciding the matter. Mr. Panda has urged with vehemence that the plaint has to be read as a whole and if that is done, it would be plain as day that the suit is barred by limitation and the effort inpara 39 of the plaint is a subterfuge to keep the lis alive. He has also submitted with vehemence that once there had been adjudication by a competent forum under the Consumer Protection Act, the same would operate as res judicata and therefore the trial Judge should have addressed himself with regard to applicability of the principles of res judicata and should not have passed the impugned order without dealing with the aforesaid question.
10. Mr. Panda has also highlighted with regard to contradictory orders coming into existence if there would be continuance of the proceeding before the civil Court.
11. Controverting the submissions of Mr. Panda, Mr. Ashok Mukherji, learned senior counsel, has submitted that the cause of action should not be confined to a singular incident or singular action, but the series of events have to be taken into consideration. It is further submitted by him that the cause of action constitutes a bundle of facts and it cannot be gone into at this stage to determine the exact nature of cause of action to make the plaintiff unsuited on the ground of limitation. He has also submitted that the principles of res judicata would not be applicable as the jurisdiction of the civil Court should not be easily inferred. That apart, it is submitted by him that the appeal preferred by the plaintiff before the State Consumer Dispute Redressal Commission has been disposed of and the Commission in its judgment has clearly observed that the direction given by the District Consumer Forum and for that matter the State Commission would always be subject to declaration by the competent court as to ownership of the gold ornaments. In view of this finding of the Commission, as canvassed by Mr. Mukherji, the order passed by the Consumer Forum is not final, but subject to decision of civil Court with regard to ownership of the gold ornaments.
12. Let me now first deal with the question of res judicata. This question arises because of an earlier adjudication by the District Consumer Forum. The plaintiff was arrayed as a party to the said proceeding. Certain findings have been recorded in thesaid case and hence the present petitioner wasemboldened to raise the question of res judicata before the court below. In the meantime, the order passed by the State Commission has come into existence and the Commission in para-13 of its judgment has observed :
'..... Thus, the District Forum has notreally decided the dispute between the two rival claimants, but while deciding the question of deficiency in service as between the complainant and the bank, it has gone into the question of ownership of the golden ornaments incidentally. Therefore, any direction given by the District Forum or for that matter by this Commission would always be subject to the declaration of any competent court of law as to the ownership of the golden ornaments. It is relevant to mention in this connection that the conduct of the bank vis-a-vis the complainant being the point at issue, the District Forum has come to a conclusion. that the contents of the locker which was allotted to the complainant should be made over to him and the bank should pay compensation for the deficiency in service.'
13. In view of this, it is beemingly clear that the ownership established is subject to final adjudication by the civil Court. Apart from this observation by the State Consumer Commission, it can be stated without any hesitation that the District Consumer Forum was required to decide the controversy with regard to deficiency in service and in that context the findings have been recorded. It is well settled in law, every forum has its jurisdiction to address itself at the threshold to arrive at a conclusion with regard to its jurisdiction and to deal with such facts which are necessary to assume jurisdiction of the forum. The findings of the District Forum or the State Forum with regard to the status of any complainant as a consumer and the grounds for the relief sought are final under Section 24 of the Consumer Protection Act, 1986 and are not available to be reagitated in a civil Court. In this connection, I may refer to the decision reported in (1995) 3 SCC 383 : (AIR 1995 SC 1428) (Laxmi Engineering Works v. P. S. G. Industrial Institute) wherein it has been held (para 15 of AIR) :
'By virtue of Section 18 the procedure prescribed in Section 13 applies to state Commission as well. From the above provisions, it is clear that the orders of the District Forum, State Commission and National Commission are final as declared in Section 24 and cannot be questioned in a civil Court. The issues decided by the said authorities under the Act cannot be re-agitated in a civil Court. The said provisions make it equally clear that the forums created by the Act fall in the second category of tribunals mentioned in R. v. Commissioner for Special Purposes of the Income-tax(1888) 21 QBD 313, 319 -- which decision has been repeatedly affirmed and applied by this Court -- which means that the Forums/Commissions under the Act have jurisdiction to determine whether the complainant before them is a 'consumer' and whether he has made out grounds for grant of relief. Even if the Forums/Commission decides the said questions wrongly, their orders made following the procedure prescribed in Sub-sections (1) and (2) of Section 13 cannot be questioned in a civil Court -- except of course, in situations pointed out in Dhulabhai v. State of M. P. (1968) 3 SCR 662 : AIR 1969 SC 78. They can and must be questioned only in the manner provided by the Act.'
From this, it is luminously clear that the determination of any party as a consumer and his justification for grant of relief are not available to be questioned in a civil Court. But the present controversy is of different nature. In the plaint, the findings of the consumer forums in this regard are not being questioned. In any case, the same cannot be questioned. What is being called in question in the suit is with regard to ownership of the ornaments. This inter se controversy between the plaintiff and defendant could not have been finally adjudicated by the consumer forums and the same has been rightly not done by them. On the contrary, the State Commission has kept the matter open find held that the civil Court can go into the same. It is also made clear that this controversy of this type of lis is not covered by the ratio of the decision reported in (1995) 3 SCC 383 : (AIR 1995 SC 1428) (supra) and therefore in the present case the suit cannot be regarded asone being hit by the principles of res judicata. I may hasten to add that where the statute gives finality to the orders of certain tribunals the Civil Courts' jurisdiction must be held to be excluded but that does not exclude the case where the provisions of the particular Act has not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. But in the instant case, the said question does not arise as the dispute with regard to ownership could not have been finally adjudicated by the consumer forum. Any finding in that regard is an incidental one.
14. Mr Panda to substantiate his contention with regard to applicability of the principles of res judicata has placed reliance on the decisions reported in AIR 1953 SC 33 (Smt. Raj Lakshmi Dasi v. Banamali Sen), (1970) 36 Cri LT 847 (Khedu Sahu v. Janardan Supakar), AIR 1980 Ker 230 (P. V. Devoki Amma v. P. V. N. Kunhi Raman) and AIR 1981 Orissa 177 (Kumarmoni Sa v. Himachal Sahu).
While pressing into service the principles enunciated in the aforesaid decision Mr. Panda has highlighted that the question of title being necessarily, substantially and directly in issue before the consumer forum the Civil Courts' jurisdiction is ousted. Elucidating further he gives emphasis on explanation VIII of Section 11, C. P. C. to justify that the suit of the present nature is not entertainable before the Civil Court being hit by the principle of res judicata.
15. On perusal of the aforesaid decision and submissions of Mr. Panda I am of the considered view that the present suit is not barred by the principle of res judicata inasmuch as the State Consumer Forum has kept the lis open and, more so, any finding of that nature is not covered within the ambit and sweep of Section 24 of the Consumer Protection Act, 1986. This being the position of law I am afraid, I cannot accept the submission of Mr. Panda and the same is accordingly rejected.
16. The second submission of Mr. Panda is that the learned trial Judge has misdirected himself by not adjudicating the issue relatingto cause of action which is inherently and intrinsically connected with the question of limitation and has deferred the same by referring to the prayer portion of the plaint, but not reading the plaint as a whole. The submission of Mr, Panda is that it is incumbent upon the court to read the plaint in a meaningful manner while exercising the power under Order 7, Rule 11 of C. P. C. To fortify his submission, Mr. Panda has placed reliance on AIR 1977 SC 2421 (T. Arivandandam v. T. V. Satyapal) wherein the apex Court has expressed (Para 5) :
'..... if on a meaningful -- notformal -- 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 clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party.....'
Mr. Panda has also referred to the decision reported in AIR 1985 Orissa 197 (Sivananda Roy v. Janaki Ballav Patnaik) wherein this Court has laid down that Order 7, Rule 11(d) is not to be restricted to any stage of the suit and a court has jurisdiction to examine the plaint before admitting the same.
17. Relying on the aforesaid two decisions, Mr. Panda has developed his submission that the cause of action as stated in the body of the plaint is not inconsonance with the prayer portion of the plaint. If the suit was filed beyond the period of limitation, the court cannot proceed. Limitation being peremptory it affects the jurisdiction of the Court and, therefore, before entertaining a suit, it is obligatory on the part of the court to examine the point of limitation, and more so when it is pointed out by the adversary before admission of the suit. Elucidating further, Mr. Panda has canvassed that in a matter of this nature, court has no choice. In support of his submission, he has referred to the decisions reported in AIR 1985 Orissa 182 (Secretary, Govt. of Orissa, Irrigation Department v. Raghunath), AIR 1966 Orissa 59 (Golak Chandra Biswal v. State of Orissa)and AIR 1964 SC 1336 (M. L. B. Corporation v. Bhutnath).
18. From the ratio of the aforesaid decisions, it can be deduced that a duty is cast on the court entertaining a plaint to look into the averments in the plaint in proper perspective and consider the plaint as a whole to scan the essence of the cause of action and arrive at a conclusion whether the cause of action as indicated and understood as a bundle of facts giving rise to a grievance of the plaintiff saves the limitation or not. Tested by the touchstone of the aforesaid parameter, I am afraid, the order passed by the learned trial Judge does not stand close scrutiny. The order is cryptic and there is really no analysis. The learned Civil Judge has only referred to the prayer portion of the plaint and has not delved into the matter to find out whether any cause of action flows from the averments in the plaint to save the period of limitation. The court below should have kept in mind that the cause of action is relatable to the period of limitation. It is well settled in law that limitation need not be set up as a defence under Section 3(1) of the Limitation Act. It is the duty of the court to find so.
19. In the present case, the court below has deferred the matter. No doubt the court may examine a point before admitting it or any time thereafter, but in the present case, in view of the peculiar facts the trial Judge should have done well to determine this question at the first instance. The ratio of the decision in AIR 1977 SC 2421 (supra) is fully applicable to the present case.
20. It is worth-mentioning here that the plaintiff must have a cause of action to sue and the same must have arisen within the prescribed period of limitation. Both the concepts are in a way inseparable. If the cause of action on a meaningful reading of the entire plaint does not disclose a clear right to sue and creates an illusion of cause of action, it should be nipped in the bud. Similarly, if a cause of action giving rise to a grievance is no more remediable because of prescript of the law of limitation, the plaintiff cannot approach a court of law.
21. The effect of Mr. Panda is that a clear right to sue or the cause of action has to be found out on a meaningful reading of the plaint and while doing so it is also obligatory on the part of the court to find out if the case can be adjudication or the same has become no more adjudicate being barred by limitation. Emphasis has been laid by Mr. Panda that a plaintiff cannot create a mirage and clothe his lis in such a manner to persuade a court to entertain a vexatious litigation and the court has to exercise its jurisdiction to scrutinise the plaint in its entirety, whether the suit has been filed within the period of limitation or not; and whether the cause of action is revealed on a meaningful manifestation of the plaint or not. If, after uncurtaining and undraping the plaint and scanning the averments in their conceptual eventuality it is found that a clear cause of action not only exists but survives to be adjudicated in a court of law without being hit by the prescription of limitation, the court should admit the suit, otherwise law has to take its own course. As the learned trial Judge has not dealt with the question from this aspect and the order has not been made on consideration of these factors, I am inclined to set aside the same and direct the trial Judge to reconsider the matter again. I would make it clear that while dealing with the said aspect, the court below should examine the plaint and the plaint alone, and no other material in finding out a clear cause of action and subsistence thereof for the purpose of adjudication in law. The question of res judicata stands closed.
22. In the result, the revision is allowed tothe extent indicated above. Parties to beartheir own costs. Records be sent back to thecourt below immediately.