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2016 Supreme(MP) 802
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BENCH
Vivek Rusia, J.
Bhanwarbai wd/o Shantilalji Pokharna and others – Petitioners
Versus
Gajendra s/o Late Shantilalji Pokharna and others – Respondents
Civil Rev. No. 324 of 2015
Decided On : 07-09-2016
For the Petitioner:S.R. Kochatta, Advocate.
For the Respondent:Rishi Agrawal, Advocate.
The main legal point established is that a suit cannot be rejected under Order 7 Rule 11 without proper pleadings, framing of issues, and taking of evidence, especially regarding issues such as limitation.
Headnote:
Order 7 Rule 11 - Civil Procedure Code - 33(1), 33(2), 7(11), 151 - The court discussed the rejection of the application under Order 7 Rule 11 read with section 151 of the Civil Procedure Code, the valuation of the suit, mis-joinder of parties, and the maintainability of the suit. Key legal provisions such as Order 7 Rule 11 and relevant case laws were considered in reaching the decision.
Fact of the Case:
The plaintiff filed a suit for declaration and perpetual injunction against the defendants regarding the suit property and properties of a partnership firm. The defendants filed an application under Order 7 Rule 11 to reject the plaint on various grounds.
Finding of the Court:
The court rejected the application under Order 7 Rule 11 after considering the objections raised by the defendants and relevant legal provisions. The court found no illegality or jurisdictional error in the trial court's decision.
Issues: The issues included the timeliness of the suit, valuation and payment of court fees, mis-joinder of parties, and the maintainability of the suit.
Ratio Decidendi: The court applied the legal principles of Order 7 Rule 11 and relevant case laws to determine the maintainability of the suit and the rejection of the application.
Final Decision: The revision petition was dismissed, affirming the trial court's decision to reject the application under Order 7 Rule 11.
Vivek Rusia, J.
Petitioners/defendants have filed the present revision being aggrieved by the order dated 17-11-2015 by which application under Order 7, Rule 11 read with section 151 of the Civil Procedure Code has been rejected by the trial Court in MJC No. 1/15.
2. Plaintiff/respondent No. 1 filed a suit for declaration and perpetual injunction restraining the defendants from carrying out the illegal construction, partition and separate possession of suit property as well as the properties of partnership firm Ms. Pokharna Brothers, Ratlam. The plaintiff filed the suit under Order 33, Rules 1 and 2 of the Civil Procedure Code as an indigent person. The plaintiff valued the suit at Rs. 12 crores without payment of ad-valorem Court fee of Rs. 1.59 lakhs. It is not disputed that plaintiff and defendants are real brothers and other defendants, are family members. Plaintiffs father died on 26-9-1990 and who was a partner in the firm M/s Pokhara Brothers. The plaint has not been registered as a regular civil suit and the proceeding under Order 33, Rules 1 and 2 Civil Procedure Code are pending.
3. That the present petitioner defendant No. 4 has filed an application under Order 7, Rule 11 read with section 151 of the Civil Procedure Code for rejection of the plaint on the following grounds.
(i) That the suit is time barred as it has been filed after 23 years.
(ii) Plaintiff has not properly valued the suit and did not pay the ad-valorem Court fees.
(iii) The suit suffers from mis-joinder of parties as sister Smt. Chandanbala and Asha have not been impleaded as a party.
(iv) that in absence of partition deed the suit is not maintainable.
(v) That the present suit is misuse of process of law.
4. In support of his application written submissions was filed by the defendant No. 4. The said application was opposed by the plaintiff by filing reply. Vide order dated 17-11-2015 learned trial Court rejected the application by a detailed order and each and every objection taken by the petitioner has been answered by the learned trial Judge.
5. Shri Kochatta, learned counsel for the petitioner vehemently argued that the suit filed by the respondent No. 1 is sheer abuse of process of law. The suit is hopelessly time barred and with an intention to harass the defendants and such a suit is not maintainable and liable to be dismissed at the initial stage. Plaintiff has not impleaded his sister as defendants, therefore, not entitled for a decree of partition. He further submits that trial Court has committed a grave error while rejecting the application under Order 7, Rule 11 of the Civil Procedure Code.
6. Per contra, Shri Agrawal, learned counsel for the respondent No. 1 submits that the suit is yet to be registered, therefore, at this stage the application under Order 7, Rule 11, Civil Procedure Code is not maintainable. He has placed reliance over the judgment in the case of District Official Receiver, Amritsar v. Firm Sohan Lal Ramji Dass and others, reported in AIR 1940 Lahore 446.
7. I have heard learned counsel for the parties.
8. That the suit filed by the plaintiff is registered as MJC because of the application under Order 33, Rules 1 and 2 of the Civil Procedure Code is pending. If such an application is rejected then the plaintiff would be required to pay ad valorem Court fee then only the suit would be registered as a regular civil suit.
9. In the case of Saleem Bhai v. State of Maharashtra, reported in 2003(2) M.P.L.J. (S.C.) 320 = (2003) 1 SCC 557 while considering application under Order 7, Rule 11 of Civil Procedure Code the Apex Court has held that trial Court can exercise the power under Order 7, Rule 11, Civil Procedure Code at any stage of the suit before registering the suit or after issuing summons to the defendant at any time before the conclusion of the trial. The aforesaid view has been followed by the Supreme Court in the case of The Church of Christ Charitable Trust and Educational Charitable Society v. M/s Ponniamman Education
