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High Court of Judicature at Bombay
A.P. BHANGALE, J.
Prahladsingh Ramkhilaansingh, since deceased by his heir and legal representative: & Another
Versus
Sudhir J. Bhalekar & Another
First Appeal Nos.830 of 2010 & 831 of 2010
Decided On : 26-09-2013
Rejection of plaint for want of cause of action, without giving any opportunity of adducing evidence to parties, improper. - The rule of procedure mentioned as above would make it clear that the trial Judge would be careful normally to observe the principal rule unless he has justification to depart from it and to adopt a short cut method to reject the plaint by avoiding answering all other issues arising in the case. Once pleadings are completed by the parties, the trial Judge has obligation as normal rule to frame the issues in respect of the averments made in the plaint and traversed by the defendants in their written statements so as to to meet all the issues in real controversy between the parties by a well reasoned judgment. Even if Judge decide to depart from the normal rule and frame preliminary issues and postpone all other issues arising on the basis of pleadings submitted and completed by the parties, the preliminary issues framed are required to be decided as stated in exceptions alone i.e. relating to the jurisdiction of the Court and if the suit is barred by any law. The normal rule is to answer all issue framed after offering the parties an opportunity to adduce evidence thereon.
Under VII, Rule 11(d) of the Code of Civil Procedure has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order VII, Rule 11, should not be mixed up unreasonably while framing preliminary issues as has been done by the Judge. An application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses of Order VII, Rule 11, but a clear finding to that effect must be recorded. What would be relevant for invoking clause (d) of Order VII, Rule 1 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a Court can be invoked at different stages and under different provisions of the Code. Order VII, Rule 11 of the Code is one, Order XIV, Rule 2 is another. For the purpose of invoking Order VII, Rule 11(d) of the Code, perusal of averments in the plaint is enough. But The issues on merit of the matter, which may arise between the parties, would not be within the realm of the Court at the stage of passing order under Order VII, Rule 11.
The issues framed upon pleadings shall not be the subject-matter while passing an order under the Order VII, Rule 11 to reject the plaint. For the aforesaid reasons and in the circumstances of the case, the ingredients of either clause (a) or clause (d) of Order VII, Rule 11, CPC are not attracted to the present case so as to render the plaint liable for rejection.
1. The question agitated in these appeals is as to whether the learned trial Judge erred in law to reject the plaint under Order 7 Rule 11 of the Civil Procedure Code? My answer is in the affirmative for following reasons.
2. The case of the appellant (Original Plaintiffs) is that they are legal heirs of Prahladsingh Ramkhilavan Singh. Their father claimed as Tenant of the premises described as 'Stable with surrounding open land at Final Plot No. 113 and 114 at TPS V Scheme Vile Parle (East)'. He disclaimed Lessor’s right by refusing to pay rent for 12 years and claimed ownership by adverse possession. Second defendants in S.C Suit no 3856 of 1999 and S.C. Suit no. 3857 of 1999 were his servants residing in the stable permitted as gratuitous licensee. They were not in possession or occupation of any premises. They had filed suit against the plaintiffs in the court of small causes being suit no. 3164 of 1981 and 3165 of 1985. First Defendant decided to develop the property and had entered into agreements with second defendants in the suit to provide flats to them admeasuring 260 Sq. feet carpet area to each of them, in the proposed building of the proposed society. The Plaintiffs claimed declaration that agreements between the Defendant no.1 and second defendants are bad, illegal, unenforceable and will result in to loss, injury to the plaintiffs. The plaintiffs also prayed for perpetual injunction against the Defendants. According to the plaintiffs, they will have allotment of three flats in the proposed building. Following issues were treated as preliminary issues to be decided by the learned Judge.
Issue No. 2: Whether the agreement between the defendant no. 1 and defendant no. 2 affects civil rights of the plaintiff? If not, whether the suit is having any cause of action and whether the suit is maintainable?
Issue no. 2b: Whether the plaintiff can challenge the agreement between the defendant no. 1 and 2 on behalf of the proposed co-operative society as a would be member? If yes, whether this court has subject wise jurisdiction to conduct the suit?
Issue no.3: Whether the suit is properly valued and whether proper court fee is paid thereon? If not whether the suit is beyond pecuniary jurisdiction of this court? What order?
3. Learned trial judge without giving opportunity to the parties to adduce any oral evidence held that the plaintiffs are jealous of the second defendants that they will get two flats in the proposed building. According to the learned Judge of the trial judge the plaintiffs have no cause of action to sue the defendants. According to the learned trial Judge the plaintiffs were not entitled to challenge the agreement between the first and second defendants and therefore the learned Judge, without recording any evidence upon issues framed ordered rejection of the plaint under Order 7 Rule 11 (a) of the Code of Civil procedure. Hence appeals.
4. The provision of Order 7 R. 11. Rejection of plaint reads thus:-
The plaint shall be rejected in the following cases :
(a) Where it does not disclose a cause of action:
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so :
(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so :
(d) Where the suit appears from the statement in the plaint to be barred by any law :
(e) where it is not filed in duplicate
(f) where the plaintiff fails to comply with the provisions of rule 9.
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite Stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from cor
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