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SUPREME COURT OF INDIA
KURIAN JOSEPH, ROHINTON FALI NARIMAN, JJ.
R. K. ROJA – APPELLANTS
VERSUS
U. S. RAYUDU AND ANOTHER – RESPONDENTS
CIVIL APPEAL NO. 5540 OF 2016 (Arising out of S.L.P.(C) No. 15474 of 2016)
Decided On : 04-07-2016
(B) Civil Procedure Code, 1908 – Order 7 Rule 11 – Rejection of plaint – Once application is filed under Order VII Rule 11 of CPC, court has to dispose of same before proceeding with trial – There is no point or sense in proceeding with trial of case in case plaint is only to be rejected at threshold – Defendant is entitled to file application for rejection before filing his written statement – In case application is rejected, defendant is entitled to file his written statement thereafter – But once an application for rejection is filed court has to dispose of same before proceeding with trial. (Para 6)
Facts of Case:
First respondent filed an Election Petition challenging election of appellant. On receipt of notice in Election Petition, appellant filed application for rejection of Petition under Order VII Rule 11 of CPC by way of a counter affidavit. Court declined to consider the same on the ground that there was no formal application and proceeded with trial. At that stage, appellant filed formal application for rejection of Election Petition on ground that Election Petition did not disclose any cause of action. That application as per impugned order was posted along with main petition and thus, the appeal.
Findings of Court:
Procedure adopted by court is not warranted under law. Without disposing of application under Order VII Rule 11 of CPC, court cannot proceed with trial. In that view of the matter, impugned order is only to be set aside.
Since Election Petition has been pending before High Court since 2014, we request High Court to dispose of the same before end of this year.
Result – Appeal disposed of with observations.
Facts: The respondent filed an election petition challenging the appellant's election to the 289 Nagiri Assembly Constituency on 16.05.2014, dated 30.06.2014. Upon notice, the appellant filed an application for rejection under Order VII Rule 11 CPC via counter-affidavit (Annexure-P/4, dated 15.03.2015), which the court declined for lack of formality and proceeded to trial. The appellant then filed a formal application (Annexure-P/5, E.A. No. 222 of 2016 on 22.02.2016) alleging no cause of action, but the High Court posted it for final hearing via impugned order dated 27.04.2016, citing lack of diligence. [1000583510001][1000583510002][1000583510003][1000583510007]
Issues: (i) Whether the court must dispose of an Order VII Rule 11 CPC application before trial; (ii) Timing and consideration of such applications. [1000583510001] (!) (!) (!)
Held: An application under Order VII Rule 11 CPC can be filed at any stage before trial, based solely on the plaint (not defendant's written statement or application allegations). The court must dispose of it before proceeding to trial, as there is no merit in trialing a plaint liable for threshold rejection. Filing written statement is not barred beforehand; if rejected, written statement follows. Postponing to final hearing or requiring "earliest opportunity" is impermissible. The High Court's procedure was erroneous; impugned order set aside. On merits, the Supreme Court heard arguments, found the election petition outside Order VII Rule 11(a)-(f), rejected the application, and granted leave to file written statement within two weeks. High Court directed to dispose of the petition by year-end (pending since 2014). Appeal disposed accordingly. [1000583510004][1000583510005][1000583510006][1000583510008][1000583510009][1000583510010][1000583510011]
Key Principle: Courts must prioritize and decide Order VII Rule 11 applications pre-trial to avoid futile proceedings. (!) [1000583510005][1000583510008]
JUDGMENT
KURIAN, J.:
Leave granted.
2. The appellant has two grievances -(i) The Court has not disposed of an application filed by her under Order VII Rule 11 of The Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’) for rejection of the Election Petition and the same has been posted along with the main petition and (ii) She is denied an opportunity to file written statement.
3. The first respondent herein filed an Election Petition challenging the election of the appellant to the 289 Nagiri Assembly Constituency. Appellant was declared elected on 16.05.2014. The election petition is dated 30.06.2014. On receipt of notice in the Election Petition, the appellant filed Annexure-P/4-application for rejection of the Petition, under Order VII Rule 11 of the CPC by way of a counter affidavit. It appears that the court declined to consider the same on the ground that there was no formal application and hence proceeded with the trial. At that stage, appellant filed Annexure-P/5-formal application for rejection of the Election Petition on the ground that the Election Petition did not disclose any cause of action. That application as per the impugned order dated 27.04.2016 was posted along with the main petition, and thus, the appeal.
4. The High Court has taken the view that the same “was not filed at the earliest opportunity” and that appellant was not diligent in prosecuting the application. Therefore, the court took the view that … “this application filed by the first respondent shall be decided at the time of final hearing …”.
5. We are afraid that the stand taken by the High Court in the impugned order cannot be appreciated. An application under Order VII Rule 11 of the CPC can be filed at any stage, as held by this Court in Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others, (2004) 3 SCC 137… “The trial court can exercise the power at any stage of the suit – before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. …”. The only restriction is that the consideration of the application for rejection should not be on the basis of the allegations made by the defendant in his written statement or on the basis of the allegations in the application for rejection of the plaint. The court has to consider only the plaint as a whole, and in case, the entire plaint comes under the situations covered by Order VII Rule 11 (a) to (f) of the CPC, the same has to be rejected.
6. Once an application is filed under Order VII Rule 11 of the CPC, the court has to dispose of the same before proceeding with the trial. There is no point or sense in proceeding with the trial of the case, in case the plaint (Election Petition in the present case) is only to be rejected at the threshold. Therefore, the defendant is entitled to file the application for rejection before filing his written statement. In case, the application is rejected, the defendant is entitled to file his written statement thereafter (See Saleem Bhai and 3 others v. State of Maharashtra and others, (2003) 1 SCC 557). But once an application for rejection is filed, the court has to dispose of the same before proceeding with the trial court. To quote relevant portion from paragraph-20 of Sopan Sukhdeo Sable case (supra):
“20. … Rule 11 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word “shall” is used, clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. …”
7. In Saleem Bhai case (supra),
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