DELHI HIGH COURT
C. Hari Shankar, J.
(Video-Conferencing)
Tajunissa and Anr. – Plaintiffs
versus
Mr. Vishal Sharma and Ors. – Defendants
I.A. 7168 of 2019 in CS (OS) 262 of 2019
Decided on 23.7.2021

IMPORTANT POINT
It is open to a Court to examine, even before issuing summons, whether suit is required to be returned under Order VII Rule 10 or rejected for any of grounds contained in Order VII Rule 11 of CPC.

Headnote:

Civil Procedure Code, 1908 – Order VII Rules 10 and 11(d) – Return/Rejection of suit – It is open to a Court to examine, even before issuing summons, whether suit is required to be returned under Order VII Rule 10 or rejected for any of grounds contained in Order VII Rule 11 – It is open to Court to examine, even at this stage, whether suit is barred by Order VII Rule 10 or Order VII Rule 11 – Section 148A of CPC deals with right to lodge a caveat – This provision cannot, expressly or by necessary implication, deny defendant right of audience, to urge objections under Order VII Rule 11 even prior to issuance of summons in a suit – Order VII Rule 11 enumerates grounds on which maintainability of a suit can be questioned and its rejection sought – It is open to defendant to raise such an objection after summons are issued in a matter – However, when Court has in categorical terms held that even prior to issuing summons, suit may be rejected on the grounds envisaged in Order VII Rule 11, there cannot be any bar to Court hearing defendant in that regard, ifthe defendant is present.

Held: The first issue, in my considered opinion, stands squarely answered by paras 18 to 20 of Bright Enterprises1, on which Mr. Das himself places reliance. These paragraphs clearly hold that summons are required to be issued in every suit duly instituted except where the suit is returned under Order VII Rule 10 or rejected under Order VII Rule 11. Clearly, therefore, it is open to a Court to examine, even before issuing summons, whether the suit is required to be returned under Order VII Rule 10 or rejected for any of the grounds contained in Order VII Rule 11. The submission, of Mr. Das, that summons have to be issued in every suit which is “duly instituted” is, therefore, without substance and is accordingly rejected. It is open to the Court to examine, even at this stage, whether the suit is barred by Order VII Rule 10 or Order VII Rule 11.

Section 148A of the CPC deals with the right to lodge a caveat. The provision opens with the words “where an application is expected to be made, or has been made, in a suit or proceeding instituted, or about to be instituted”. The provision goes on to say that before any such application, in a suit which stands instituted or is about to be instituted, is heard, a person affected by the outcome of the application may claim a right of hearing in a caveat. We are not concerned with any such application. Even otherwise, this provision, in my view, cannot, expressly or by necessary implication, deny the defendant a right of audience, to urge objections under Order VII Rule 11 even prior to the issuance of summons in a suit.

Given this position, it appears a trifle incongruous to deny the Court the opportunity of hearing the defendant in that regard, even if the defendant is present. This appears, to me, to be straining the CPC to breaking point, and far beyond its legitimate limits. Order VII Rule 11 enumerates grounds on which the maintainability of a suit can be questioned and its rejection sought. No doubt, it is open to a defendant to raise such an objection after summons are issued in a matter. However, when the Court has in categorical terms held that, even prior to issuing summons, a suit may be rejected on the grounds envisaged in Order VII Rule 11 (which position Mr. Das, too, acknowledges), there cannot, in my view, be any bar to the Court hearing the defendant in that regard, if the defendant is present. If the submission of Mr. Das were to be accepted, it would mean that, despite the presence of the defendant, the Court has to decide the maintainability of the suit under Order VII Rule 11 without hearing the defendant and only by hearing the plaintiff. This, in my view, is not a position which flows from any provision of the CPC to which Mr. Das has invited my attention. Even more empirically, it would also deny the right of the Court to competent legal assistance, despite its availability, which is fundamental to administration of justice. (Paras 7, 10 and 13)

Result: Directions issued.