ivil Appeal No 1043 of 1990
From the Judgment and Order dated 1081989 of the Bombay High Court in CRA NO
521 of 1985
VA Bobde SD Mudaliar
Mrs Ranjana Bobde and CK Ratnaparkhi for the Appellants
VP Salve and Ms Bina Gupta for the Respondent
The Judgment of the Court was delivered by VERMA J
Special Leave granted
The short question involved is the maintainability of the suit which gives rise to this appeal
The appellants contend mat the Suit is not maintainable even on the plaint averments
The Trial Court held the suit to be maintainable and the High Court has dismissed the appellants  revision affirming that view
Hence this appeal by special leave
The appellants are the legal representatives of Motilal who purchased the disputed property namely Goyal Talkies  at Kamptee in the year 1946
The said Motilal entered into a partnership on 31121953 with respondent Ratanlal repre senting the joint family firm Ms
Ratanlal Damdoolal and Bros for the purpose of running the cinema business in Goyal Talkies 
Some disputes having arisen between the parties the said Motilal together with his wife and chil dren filed Civil Suit No 19A of 1955 on 481955 in the Court of Civil Judge Class I Nagput against respondent Ratanlal as defendant No 1 the firm Ms Damdoolal and Bros as defendant No 2 and one Puranmal as defendant No 3
The suit was for the dissolution of partnership rendi tion of accounts and ancillary reliefs
On discovery of the misdescription of defendant No 2 firm an application was made by the plaintiff for correction of that misdescription
The misdescription being obvious the Trial Court allowed the plaintiff s application on 1981955 permitting defend ant No 2 firm to be correctly described as Ms Ratanlal Damdoolal and Bros instead of Ms Damdoolal and Bros It appears that the correction even though permitted was 175 not actually incorporated in the plaint
However the par ties were not misled in any manner by the misdescription of defendant No 2 made initially in the plaint which is evi dent from the fact that defendant No I Ratanlal who filed the separate written statement in the suit on behalf of defendant No 2 also correctly described defendant No 2 as Ratanlal Damdoolal and Bros This suit was compromised between the parties and a compromise petition dated February 20 1956 signed by the plaintiff Motilal Ratanlal for himself as defendant No 1 and also on behalf of defendant No 2 firm and the counsel for defendant Nos 1 and 2 was filed in the Trial Court
This compromise was recorded by the Court on 531956 after the statements of defendant No1 Ratanlal and the counsel for defendant No 2 firm were recorded accepting the compromise
One of the agreed terms was that defendant No 3 Puranmal should be discharged from the suit apparently because he had no interest in the suit
According to the terms of the compromise plaintiff was to pay to defendant Nos 1 and 2 a sum of Rs15700 in full satisfaction of their claim subject to final accounting which included the sum of Rs2600 paid to Puranmal by defendant Nos 1 and 2
It was also agreed that on payment of this amount by the plaintiff to defendant Nos 1 and 2 within the specified period the partnership would be deemed to be dissolved and that defendant Nos 1 and 2 gave up all their rights including the interest acquired by them from defendant No 3 Puranmal under the sale deed executed in their favour
It was agreed that the plaintiff would be entitled to possession of the talkies immediately on payment of the amount due to defendant Nos 1 and 2
The Receiver Shri KS Mishra Advocate was required to act in terms of the compromise between the parties which required confirma tion of accounts from the accountbooks of the partnership and thereafter distribution of the surplus between the plaintiff and defendant Nos 1 and 2
The plaintiff paid this sum of Rs15700 on 531956 well within the specified period the receiver rendered accounts on 1931956 and an application for correction was made on 341956
It may be mentioned that full compliance having been made by the plaintiff on 53
1956 the receiver gave possession of the Talkies to the plaintiff on 53
1956 according to the compromise since the Only thing remaining to be done thereafter was to refund to the plaintiff the amount of Rs5470 paid in excess by plaintiff to defendant Nos 1 and 2
Accordingly on 16111959 the Court passed the final decree in the suit stating that the partnership stood dissolved with effect from 2741959 and the defendant Nos 1 and 2 were directed to refund to the plaintiff the amount of Rs5470 which was the excess amount paid by the plaintiff to them
176 Notwithstanding the above facts defendant Nos 1 and 2 filed an appeal against the final decree dated 16111959 in the Court of the Extra Assistant Judge Nagpur which was CA No 413 of 1962 decided on 2712
Thereafter a second appeal No 293 of 1963 was also filed by these de fendants in the High Court which too was dismissed on 2121972
The final decree dated 16111959 based on the compromise which was fully satisfied become final inasmuch as the defendants did not challenge the same by a further appeal to this Court
Thereafter Civil Suit No 1699 of 1980 in the Court of Civil Judge Senior Division Nagpur was filed by respond ent Ratanlal against the petitioners who are the legal representatives of the aforesaid Motilal assailing the above consent decree after taking the entire benefit thereunder
The reliefs claimed in this suit are for a declaration that the aforesaid final decree dated 1611
1959 passed on the basis of the order dated 531956 in Civil Suit No 19A of 1955 by the Civil Judge Senior Division Nagpur is a nullity that the partnership under the partnership deed dated 31121953 between the said Ratanlal and Motilal continues to subsist that Ratanlal is entitled to posses sion of the said Goyal Talkies and the other ancillary reliefs
This suit was contested by the petitioners inter alia on the ground that it was barred by res judicata by the earlier adjudication between the parties and also that it was not maintainable
It would suffice to say that as a result of the High Court s direction the Trial Court framed preliminary issue regarding maintainability of the suit and by its order dated 1541985 it held the suit to be main tainable
On behalf of the petitioners the suit was claimed to be barred also by virtue of Rule 3A of Order 23 CPC The Trial Court rejected these contentions and held the suit to be maintainable
The petitioners then preferred a Civil Revision in the High Court which has been dismissed by the Order dated 1081989
Hence this appeal by special leave
The contention of Shri VA Bobde learned counsel for the appellant is that the suit is barred by virtue of Rule 3A of Order 23 CPC and even otherwise the plaint aver ments do not disclose any cause of action in order to raise a triable issue
He also contended that even if Rule 3A inserted in Order 23 CPC by the CPC Amendment Act 1976 with effect from 121977 does not apply to the present suit challenging the decree passed prior to the amendment this suit is barred also in accordance with the unamended provision existing earlier
In reply Shri VP Salve learned counsel for the respondent contended that Rule 3A of Order 23 CPC has no application since the decree as sailed in the suit is of a date much prior to insertion of 177 Rule 3A by amendment with effect from 12
He also contended that the question of examining the frame of the suit to determine its maintainability on any other ground does not arise since the petitioners case was based on the bar under Order 23 Rule 3A CPC which too was an objec tion raised after the filing of the written statement in which the plea of res judicata had been taken
However in all fairness Shri Salve made no attempt to contend that the suit as framed raises any triable issue on the basis of the only grounds on which the decree dated 16111959 is alleged to be a nullity
He urged only two additional grounds not pleaded in the existing plaint which were raised unsuccess fully on behalf of the present respondent in the First Appeal and the Second Appeal against the compromise decree to contend that the suit is triable
He also urged that no specific objection for rejection of the plaint under Order 7 Rule 11 CPC was taken earlier and therefore the matter be remanded for a fresh consideration on this basis
To avoid protracting this litigation any longer we gave opportunity to learned counsel for the respondent to prepare the case on this point
Shri Salve then filed an application for amendment of the plaint on the next day in any attempt to plead the additional grounds on which alone he claimed the suit to be triable
We may first dispose of the application for amendment to the plaint filed by Shri Salve on January 12 1990 during the course of hearing of the appeal
We do not find any ground to allow this application which apart from being highly belated is clearly an after thought for the obvious purpose of averting the inevitable consequence of rejection of the plaint on the ground that it does not disclose any cause of action or raise any triable issue
Moreover the proposed amendments in the plaint as summarised by Shri Salve are to raise two grounds which are concluded by the earlier adjudication ending with dismissal of Ratanlal s Second Appeal against the impugned decree
The first is the consequence of rejection of the plaint under Order 7 Rule 11 CPC in the earlier suit on 2631959 and its revival on payment of court fee by plaintiff Motilal in terms of that order itself
It is sufficient to mention that the High Court s order dismissing the Second Appeal arising out of that decree considers and rejects this argument and that order has become final between the parties since it was not challenged thereafter
The second point relates to delivery of possession of the Talkies on 531956 to plaintiff Motilal which is alleged to have been made under a wrong procedure
The facts narrated above clearly indicate that delivery of possession by the 178 Receiver Shri KS Mishra Advocate to plaintiff Motilal was in pursuance of the Court s order dated 531956 after plaintiff Motilal had already deposited the sum of Rs15700 which was really in excess of the amount required to be paid by the plaintiff Motilal to
defendant Nos 1 and 2 re sulting in subsequent refund of Rs5470 to plaintiff and the express compromise between parties which was accepted by Ratanlal in his statement recorded by court on 222
This contention also was rejected in the earlier adjudica tion ending with the High Court s dismissal of the Second Appeal which has become final
Moreover this appeal is not against that decision of the High Court
There is no ground to allow the belated attempt to amend the plaint for taking these grounds
The application for amendment is therefore rejected
We do not consider it necessary to decide the applica bility of Rule 3A of Order 23 CPC to the present suit since the matter can be disposed of even otherwise
The plaint averments specify the grounds on which the decree dated 1611
1959 is alleged to be nullity
The question is whether any of these grounds raises a triable issue in the suit or in other words does the plaint disclose any cause of action The specific case of the respondent as clearly mentioned in Para 3 of the impunged order dated 108
1989 of the High Court is as under The plaintiff has never claimed that some fraud coercion or misrepresentation is played
On the other hand he says that due to the lapses while deciding the matter decree passed by the Court below has become a nullity
It is therefore clear that the respondentplaintiff does not challenge validity of the decree dated 16111959 on the ground of fraud coercion or misrepresentation but merely on the basis of lapses in deciding the earlier suit which have been specifically mentioned in para 6 of the plaint
It is therefore only on these limited grounds that the question of maintainability of the present suit has to be decided
We shall therefore now refer to the grounds mentioned in para 6 of the plaint which alone are relied on to dis close a cause of action for the suit
The first ground of nullity averred in para 6 of the plaint is that the decree was passed against a non existent person Ms
Damdoolal and Bros It is not the respondent s case that Ms Dam doolal and Bros is a legal entity distinct from Ms Ratanla Damdoolal and Bros so that the decree was against another person As earlier stated in the written statement filed by respondent Ratan 179 lal the description of defendant No 2 was correctly given by respondent Ratanlal himself as Ms Ratanlal Damdoolal and Bros and not Ms Damdoolal and Bros Moreover an order dated 198
1955 was made by the trial court permit ting the correction to be made even though it was not duly incorporated in the plaint thereafter
It is significant that the first appeal and the second appeal filed against the compromise decree made by the respondent in which the firm as one of the appellants was correctly described as Ms Ratanlal Damdoolal and Bros and not Ms Damdoolal and Bros
The decree was therefore against Ms RatanIal Damdoolal and Bros and this is how it was admittedly understood throughout by the respondent himself who repre sented the firm at every stage of the earlier suit till the final decision by the High Court describing the firm cor rectly as Ms Ratanlal Damdoolal and Bros Obviously this ground is non existent
The next ground of nullity pleaded is that the decree does not direct discharge of defendant No 3 Puranmal
Admittedly no relief was claimed or granted against defend ant No 3 Puranmal who was treated by all to be only a formal party
This ground also is therefore non existent
The next ground is that there is no consideration for aban donment of the interest of Puranmal which renders the corre sponding term void
Admittedly the terms of compromise show payment of Rs2600 to Puranmal and execution of a sale deed by Puranmal in favour of defendant Nos 1 and 2 who alone thereafter remained the interested parties
This is how Shri Salve learned counsel for the respondent summarised the entire grounds of nullity pleaded in the plaint
On the admitted facts appearing from the record itself learned counsel for the respondent was unable to show that all or any of these averments in the plaint disclose a cause of action giving rise to a triable issue
In fact Shri Salve was unable to dispute the inevitable consequence that the plaint was liable to be rejected under Order 7 Rule 11 CPC on these averments
All that Shri Salve contended was that the Court did not in fact reject the plaint under Order 7 Rule 11 CPC and summons having been issued the trial must proceed
In our opinion it makes no difference that the Trial Court failed to perform its duty and proceeded to issue summons without carefully reading the plaint and the High Court also overlooked this fatal defect
Since the plaint suffers from this fatal defect the mere issuance of summons by the Trial Court does not require that the trial should proceed even when no triable issue is shown to arise
Permitting the continuance of such a suit is tantamount to licensing frivolous and vexatious litigation
This cannot be done
180 It being beyond dispute that the plaint averments do no disclose a cause of action the plaint is liable to be rejected under Order 7 Rule 11 CPC without going into the applicability of Order 23 Rule 3A CPC to the present suit
Having reached this conclusion it is unnecessary to adopt the technical course of directing the Trial Court to make the consequential order of rejecting the plaint and instead we adopt the practical course of making that order in this proceeding itself to avoid any needless delay in conclusion of this futile litigation
Consequently the appeal is allowed
The impugned orders of the Trial Court and the High Court holding the suit to be maintainable are set aside and the plaint is rejected under Order 7 Rule 11 CPC The respondent shall pay the appel lants  costs throughout
RSS Appeal allowed


Summary:
Steel pipes and tubes including blanks therefore all sorts whether rolled forged spun cast drawn annealed welded or extruded were dutiable under Item 26AAiv of the First Schedule to the 
The Department however sought to classify pipe fittings  such as elbows bends and reducers manufactured by the appellants from out of the steel pipes purchased from the open market on payment of excise duty under Item 68 which was a residuary entry on the ground that they were known in the market differently as pipe fittings a totally different commercial commodity
The appellants  claim that the process undertaken by them did not amount to manufacture as the products turned out were nothing but pipes and tubes and that they were being virtually asked to pay duty twice over on the same product was rejected by the Appellate Tribunal
Allowing the appeal under section 35LB of the Act the Court HELD 1
Unless the Department could establish that the goods in question could by no conceivable process of reason ing be brought under any of the tariff items resort could not be had to the residuary item
This has not been done in the instant case
62F 21 The use of the words all sorts of  and the refer ence to the various processes by which the excisable items could be manufactured set out in Entry 26AAiv are compre hensive enough to encompass all sorts of pipes and tubes
64F 22 The expression pipe fittings merely denotes that it is a pipe or tube of a particular length size or shape
Pipe fittings do not cease to be pipes and tubes they are only a species thereof
In order to achieve 61 fully the purpose for which the pipes and tubes are manufac tured it is necessary to manufacture smaller pieces of pipes and tubes and also to manufacture them in such a shape that they may be able to conduct liquids and gases passing them through and across angles turnings corners and curves or regulating their flow in the manner required
This is done by a process of forging welding hammering and so on applied to the longer tubes
There is no change in their basic physical properties and there is no change in their end use
They are merely intended as accessories or supple ments to the larger pipes and tubes
It could not there fore be said that pipe fittings though they may have a distinctive name or badge of identification in the market were not pipes and tubes
63B C 62G 63A 64E Indian Aluminium Cables Ltd vs Union of India  Ors   referred to
No doubt tubes and pipes and pipe fittings fall under different sub items under the Harmonised Code as well as under the Customs Cooperative Council Nomenclature where two expressions are used in contrast and the sub classifica tion is more detailed
That dichotomy could not be imported into the instant case where there was only one comprehensive and generic entry
65B C