IMPORTANT POINT
A plaint cannot be rejected under Order VII Rule 11 of the CPC if it discloses a cause of action when read as a whole, and the absence of mutation does not negate the plaintiff's title.

JUDGMENT :

Arun Kumar Jha, J.

The instant petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 19.09.2019 passed by the learned Subordinate Judge-VIII, Patna in Title Suit No. 125 of 2017 whereby and whereunder the plaint of the aforesaid suit was rejected apart from other reliefs.

2. Case of the petitioner, shorn of unnecessary details, is that the plaintiff/ petitioner which is a duly registered cooperative society has filed Title Suit No. 125 of 2017. The plaintiff society acquired 123 katha of land of different plots from father of performa defendant through various registered sale deeds. The present suit is with regard to one of the colonies of the plaintiff society situated at Hanuman Nagar in which there is a plot bearing no. 900, measuring an area of 16 katha 3 dhur 16 dhurki which was purchased through three different deeds of sale dated 15.06.1982 and 16.06.1982. According to the lay out plan, the plots were allotted to the members of the society. In extreme east of the aforesaid land, 4 katha 16 dhur of land has been left by the society for construction of Community Hall and Shop for use and the benefit of its members. Respondent 1st set are said to be the principal defendants and it has been submitted that the principal defendants, in collusion and in connivance with each other, on 14.10.2014 in the midnight, uprooted the pillars and barbed wires from a portion of the land of the plaintiffs by illegal means which the plaintiff have put for the purpose of construction of community hall. On 12.02.2016, the principal defendants forcibly and with the help of antisocial elements, ransacked and encroached upon the said land of the plaintiff which was left for the construction of community hall and kiosk. The plaintiff filed suit before the learned trial court seeking following relief(s):-

“(a). That on adjudication of the facts stated above, it be declared that the plaintiff have got valid right title over Schedule-1 land to which the plaintiff are entitled to its possession.

(b) That on grant of relief no.1 the Principal defendant be directed to remove the encroachment from Schedule-1 land otherwise it be removed though the process of the court at the cost of the principal defendants.

(c) That the principal defendants be restrained by an order of ad-interim injunction from selling, transferring, mortgaging or any manner changing physical feature of suit land detailed in Schedule1 during pendency of this suit.

(d) That the cost of the suit may be awarded in the favour of the plaintiff.

(e) That any other relief to which the plaintiff are entitled be also granted.”

3. The principal defendants appeared and filed their written statements making a claim over the said land. Later on principal defendant no.1, respondent no.1 filed a petition on 01.09.2018 under Order VII Rule 11 of the Code of Civil Procedure (hereinafter ‘the Code’) for rejection of the plaint contending that the plaint did not disclose cause of action and proceeding with the trial would amount to misuse of the process of law. The plaintiff/petitioner filed a rejoinder on 15.09.2018. The learned subordinate court, after hearing the parties, passed an order on 19.09.2019 and rejected the plaint vide the impugned order.

4. Learned senior counsel for the petitioner, Mr. J.S. Arora, submitted that the learned subordinate court committed jurisdictional error by not appreciating the scope and purpose of Order VII Rule 11 of the Code. Learned subordinate court further committed jurisdictional error by not appreciating that hearing on the petition under Order VII Rule 11 of the Code would not be treated as pre-trial of the suit. Mr. Arora further submitted that the learned subordinate court has not appreciated and considered that in a proceeding under Order VII Rule 11 of the Code, the consideration of the plaint has to be made as a whole without excluding, adding or extracting any part thereof. Mr. Arora relied on a decision