JUDGMENT - Dr. E.S. DA SILVA, J. :---The petitioners challenge in this writ petition under Article 227 of the Constitution of India the order of the learned Civil Judge, Senior Division, Panaji, dated 10-4-1990 in Special Civil Suit No. 174/89/A.

2. By the aforesaid order the learned Civil Judge has dismissed with costs two applications made by the petitioners under Order 7, Rule 11 of Civil Procedure Code seeking the rejection of the plaint in the suit filed against them by the respondents.

3. The respondents had filed this suit for damages in respect of the petitioners alleged negligence in making proper arrangements with regard to supply of air tickets sold to the respondents by the petitioners for a trip to foreign countries. The petitioner No. 1 is the District Sales Manager of KLM Royal Dutch Airlines based in Bombay while the petitioner No. 2 is the Manager of Air Travels Agency known as Thakkar Travel Services in Goa.

It is the case of the respondents in the suit that they had travelled by the air flight of KLM Royal Dutch Airlines and because no proper service was rendered to them recovery of damages is required to be sought. It appears that after the petitioners were served with the summons for the purpose of filing their written statement they made, on three occasions, applications praying for adjournment to file their written statement on the ground that they had to collect information from several places to which the respondents had travelled to prepare their pleadings. The record shows that the petitioners received the summons in the month of September, 1989 to file their written statement on 19-10-1989 and the applications for adjournment are dated 19-10-1989, 6-12-1989 and 17-1-1990. On the last date the matter was adjourned by the Court for the petitioners to file their written statement on 19-2-1990. However, on that day the trial Judge was on leave and the matter was again fixed for petitioners written statement on 10-4-1990. On that day the petitioners moved an application before the trial Court purported to be under Order 7, Rule 11 of C.P.C. for rejection of the plaint on the ground that the plaint was disclosing no cause of action against the petitioners. However, the trial Court by the impugned order dismissed the application on the same day holding that such objection ought to have been raised by the petitioners in their written statement itself and Order 7, Rule 11 could not be invited by them on the basis of mere allegation. By the aforesaid order the trial Court has taken no decision on the merits of the petitioners application and the same was only found as non-maintainable.

Thus the point for consideration of this Court is to find out whether the petitioners who are the defendants in the suit could make such application under Order 7, Rule 11 even before filing of their written statement. In other words the point to be decided is at what stage such a defence can be raised by the defendants in a suit.

4. Mr. Usgaonkar, the learned Counsel for the petitioners, has invited my attention to the provisions of Order 7, Rule 1 of the C.P.C., namely, its Clause (e) which provides that the plaint shall contain, amongst other particulars, the facts constituting the cause of action and when it arose. The learned Counsel emphasized the word "shall" used in the provision and submitted that the same suggests that there must be an express cause of action pleaded by the plaintiff in the plaint. My attention was also drawn to Rule 11(a) of the said Order 7 which reads as follows:-

"Order 7, Rule 11. The plaint shall be rejected in the following cases :---

(a) where it does not disclose a cause of action."

It was urged by the learned Counsel that here also the word "shall" has been used by the Legislature which points out to the fact of the rejection of the plaint in case the cause of action is not disclosed being mandatory and has to be ordered by the Court itself suo motu thus casting a duty on the courts to examine

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