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IN THE HIGH COURT OF MADHYA PRADESH
Pranay Verma, J.
Suchitra Dubey (Smt.) Sattar and other
Civil Revision No. 383 of 2022 (Indore): against the order dated 5.7.2022 passed by the Fourth Additional District Judge, Indore in Civil Suit No. 31-A/2016; Decided on 30.6.2023.
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(1) Civil P. C., 1908 -- O. 7 R. 11, O. 7 R. 13 and O. 6 R. 17 -- application filed under order 7 rule 11 that suit is time barred -- application filed under order 6 rule 17 for removing defect -- application under order 7 rule 11 rejected -- as per order 7 rule 13, even where plaint is rejected, plaintiff is not precluded from presenting fresh suit on same cause of action -- trial Court ought to have first decided application under order 6 rule 17 -- in not doing so, trial exercised its jurisdiction with material irregularity -- matter remanded to trial Court for first deciding application under order 6 rule 17.
Held : The provisions of order 6 rule 17 of the CPC are not restricted or controlled by provisions of order 7 rule 11 of the CPC. Where an application under order 6 rule 17 is filed and is pending then the same ought to be decided first prior to decision on the application under order 7 rule 11. The same would be more so when the application under order 6 rule 17 is filed pursuant to filing of an application under order 7 rule 11 and intends to remedy the defects as pointed out in the said application. Such consideration of an application under order 6 rule 17 would be in the interest of justice. If there is some objection as regards maintainability of the claim and that objection is sought to be remedied by plaintiff by appropriately amending the plaint, then such amendment application needs to be considered first. [Para 14
As per order 7 rule 13 of the CPC, where a plaint is rejected under order 7 rule 11 then plaintiff is not precluded from presenting a fresh plaint in respect of the same cause of action. [Para 15
The trial Court hence ought to have first decided the application under order 6 rule 17 of the CPC filed by plaintiffs and thereafter only should have proceeded to decide the application under order 7 rule 11 filed by defendant No. 6. In not doing so, it has exercised its jurisdiction with material irregularity. 2017 SCC Online Del. 9645, 2020 SCC Online P&H 1625, AIR 1950 Bom. 345, DRJ 1991 (Supp.) 483 and 2017 (3) MPLJ 223 relied on. (2020) 7 SCC 366, (2011) 9 SCC 126, (2001) 6 SCC 534 and (1977) 4 SCC 464 referred to. [Para 16
(2) Civil P.C., 1908 -- O. 7 R. 13 and O. 7 R. 11 -- plaint rejected under order 7 rule 11 -- as per order 7 rule 13 plaintiff not precluded from presenting fresh plaint on same cause of action. [Para 15
ORDER
1. This Revision under section 115 of the CPC has been preferred by defendant No.6/petitioner being aggrieved by order dated 5.7.2022 passed by 4th Additional District Judge, Indore in Civil Suit No.31-A/2016 whereby her application under Order 7 rule 11 read with section 151 of the CPC for rejection of the plaint has been rejected.
2. The plaintiffs/respondents No.1 to 3 have instituted an action on 11-03-2016 for declaration of their title to the suit lands, for declaration that mutation in favour of defendants 1 and 2 and the sale deed dated 24.5.2006 executed in favour of defendant No.3 is null and void and for permanent injunction restraining the defendants from interfering with their possession over the suit lands.
3. On 6.5.2022 defendant No.6 filed an application under Order 7 rule 11 of the CPC for rejection of the plaint on the ground that the same is barred by time as per Article 58 of the Limitation Act, 1963. There has been gross suppression of material facts, fraud and malice on part of plaintiffs. Two suits instituted by them earlier have already been dismissed as withdrawn in 2008 and 2009 respectively which fact has been concealed by them. The plaintiffs had instituted various proceedings before the Revenue Courts with respect to the suit lands which have already been decided in the year 2008-2009 itself. The plaintiffs are neither in possession nor have any title to the suit lands. The plaint is hence liable to be rejected. The plaintiffs contested the application by filing their reply to the same.
4. By the impugned order the trial Court has rejected the application by holding that the grounds which have taken by defendant No.6 for rejection of the plaint are not sufficient. Plaintiffs are challenging a void sale deed and mutation is not proof of title. They have claimed to be in possession of the suit lands hence the plaint is not liable to be rejected.
5. Learned Senior Counsel for defendant No.6 has submitted that the impugned order is illegal and contrary to law. The suit as per the plaint averments themselves is barred under Article 58 of the Limitation Act, 1963 and does not require any evidence to be led. The plaintiffs were always aware of the sale deed and the mutation entries in favour of defendants. The plaint is vexatious, mischievous and is an abuse of process of law and deserves to be rejected at this stage itself. Various public documents which have been filed by defendant No.6 in this revision clearly demonstrate that the suit is barred by law. The plaint has to be read as a whole and not in isolation and when read in its entirety it leaves no room for doubt that the same is frivolous and vexatious. Reliance has been placed on the decision of the Supreme Court in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) (dead) through LRs and others (2020) 7 SCC 366, Khatri Hotels Private Limited and Another v. Union of India and Another (2011) 9 SCC 126, Howrah Daw Mangla Hat B.B. Samity v. Pranab Kumar Daw (2001) 6 SCC 534, T. Arivandandam v. T.V.Satyapal and Another (1977) 4 SCC 467 and various other decisions of the Supreme Court and of this Court on the same lines.
6. Per contra learned counsel for plaintiffs have submitted that the impugned order is perfectly just and legal and needs no interference. The claim is well within time which is even otherwise a mixed question of facts and law. The plaintiffs are in possession of the suit lands. The grounds raised by defendant No.6 in her application under Order 7 rule 11 of the CPC can be considered only at the appropriate stage and not at this stage. In the alternate, it is also submitted that an application under Order 6 rule 17 of the CPC was filed by plaintiffs before the trial Court on 2.7.2022 which is still pending and the same ought to have been decided prior to deciding the application under Order 7 rule 11 of the CPC. In this regard, reliance has been placed on the decision of the Delhi High Court in Rajesh Kumar Mehlawat v. Naresh Gupta
The grounds for rejection of a plaint under Order VII Rule 11 of the CPC cannot be examined at the stage of defendant's evidence and go into the merits of the suit, which should be decided during the....
The main legal point established in the judgment is that for deciding an application under Order 7 Rule 11 of CPC, the relevant facts to be looked into are the averments in the plaint, and the pleas ....
The court held that a plaint can only be rejected under Order VII Rule 11 if it does not disclose a cause of action, and the issue of limitation is a mixed question of law and fact.
An application under Order 7 Rule 11 CPC must be disposed of before trial; failure constitutes a jurisdictional error warranting revision.
The question of limitation is a mixed question of law and fact and cannot be decided based solely on the averments in the plaint. The court emphasized that such issues require evidence and should be ....
The proviso of Order 7, Rule 11 evidently covers the cases falling within the ambit of clauses (b) and (c) and has no application to a rejection of a plaint under Order 7 Rule 11(d).
The trial Court's rejection of the plaint was erroneous as it misapplied procedural rules and denied the appellant a fair opportunity to present their case.
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