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IN THE HIGH COURT OF ALLAHABAD
HON'BLE NEERAJ TIWARI, J.
Shri Om Prakash Upadhya - Petitioner
Versus
Shri Vijay Kumar - Respondent
Matters Under Article 227 No. 8286 of 2024
Decided On : 31-07-2024
CIVIL PROCEDURE - REJECTION OF PLAINT - Order VII Rule 11, Order IX Rule 9, Section 37 & 41 of Specific Relief Act, 1963 - The court discussed the provisions of Order VII Rule 11 of the CPC, which allows for the rejection of a plaint if it is barred by law. It emphasized that the plaint must be examined in its entirety, without considering the defendant's defenses. The court also analyzed Order IX Rule 9 CPC regarding the dismissal of suits and the implications for filing fresh suits. Sections 37 and 41 of the Specific Relief Act were interpreted to clarify that lack of possession does not bar a fresh suit. The court concluded that the plaint was not barred by law, leading to the dismissal of the petition.
Fact of the Case:
The petitioner filed an application under Order VII Rule 11 of the CPC to reject the plaint in Original Suit No. 784 of 1999, arguing that the suit was barred by law due to a previous suit being dismissed in default. The respondent-plaintiff claimed ownership and symbolic possession of the property in question.
Finding of the Court:
The court found that the plaint did not disclose any bar under the law for filing the suit. It held that the previous suit's dismissal did not preclude the current suit without a proper examination of the facts through a written statement.
Issues: Whether the plaint in Original Suit No. 784 of 1999 was barred by any law, specifically under Order IX Rule 9 CPC and Sections 37 & 41 of the Specific Relief Act, 1963.
Ratio Decidendi: The court established that the rejection of a plaint under Order VII Rule 11 CPC must be based solely on the plaint's averments, without considering the defendant's defenses. It reiterated that a suit cannot be dismissed for being barred by law unless it is evident from the plaint itself.
Final Decision: The court dismissed the petition, affirming the lower court's orders and stating that there was no illegality or infirmity in the decisions made regarding the plaint.
JUDGMENT :
(Neeraj Tiwari, J.) :
1. Heard Sri Pramod Jain, learned Senior Counsel, assisted by Sri Ayush Jain and Sri Ram Prakash Srivastava, learned counsel for the petitioner.
2. Present petition has been followed with the following prayer:
3. Learned Senior Counsel submitted that respondent-plaintiff has filed Original Suit No. 784 of 1999, upon which petitioner has filed application under Order VII Rule 11, CPC on the ground that suit is barred by law, which was rejected vide impugned judgment and order dated 21.04.2022. Against order dated 21.04.2022, petitioner-defendant filed Civil Revision No. 21 of 2022, which was also dismissed vide second impugned order dated 06.01.2024.
4. He next submitted that earlier the very same respondent-plaintiff has filed Original Suit No. 276 of 1992 (Virendra and Others Vs. Om Prakash Upadhya), which was dismissed in default vide order dated 13.07.1992. After dismissal of the Suit No. 276 of 1992, respondent-plaintiff filed application under Order IX Rule 9 CPC, being Misc. Case No. 116 of 1992 to recall the order dated 13.07.1992, which was also dismissed in default vide order dated 22.02.1994. He next submitted that to recall the order dated 22.02.1994 respondent-plaintiff has filed application under Section 151 CPC, being Misc. Case No. 25 of 1994, which was ultimately dismissed in default vide order dated 12.09.2003. He next submitted that respondent-plaintiff has never challenged the aforesaid orders before the higher court, therefore the aforesaid orders have attained finality.
5. He next submitted that for the very same cause of action, respondent-plaintiff has filed Original Suit No. 784 of 1999, upon which petitioner-defendant has filed application under Order VII Rule 11 CPC on the ground that suit is barred under the provision of Order IX Rule 9 CPC. He next submitted that in the Original Suit No. 784 of 1999, it is admitted that petitioner-defendant is not having the possession over the property in dispute, therefore, under Section 37 & 41 of Specific Relief Act, 1963 (hereinafter, referred to as, ‘Act, 1963’), no relief may be granted to him. He lastly submitted that without considering the aforesaid facts, application of petitioner under Order VII Rule 11 CPC has been rejected vide impugned order dated 21.04.2022. He firmly submitted that in light of Order IX Rule 9 CPC, once the suit is already dismissed, this suit is not maintainable, therefore, it is required on the part of the Additional Civil Judge(S.D.), Court No. 4, Meerut to allow the application of petitioner under Order VII Rule 11 CPC and reject the Original Suit No. 784 of 1999. Additional District Judge has also rejected the revision without considering aforesaid facts. In support of his contention, learned Senior Counsel placed reliance upon the judgment of Apex Court in the matters of Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal: 2017(13)SCC 174 and G. Nagaraj, Anr Vs. B.P. Mruthunjayanna & Ors.: 2023 LiveLaw(SC)311 and State of West Bengal vs. Union of India passed in Original Suit No.4 of 2021, delivered on 10.07.2024.
6. I have considered the submission advanced by learned Senior Counsel, perused the record and provision of law and judgments relied upon.
7. Petitioner-defendant has filed application under Order VII Rule 11(d) CPC, which is being quoted hereinbelow:
(a)……………………………………………………………………………………..
(b)…………………………………………………………………………………….
(c)…………………………………………………………………………………...
(d) where the suit appears from the statement in the plaint to be barred by an
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