IMPORTANT POINTS
(1) Rejection of plaint – Nature of document could not have been considered by Court on application Order VII Rule 11, CPC.
(2) Rejection of plaint – Application under Order VII Rule 11, CPC can be filed at any stage of suit.

ORDER

The present revision petition has been filed by the petitionerdefendant assailing order dated 09.05.2022 passed by the Court of Additional District Judge No.1, Udaipur whereby an application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure as preferred by the petitioner-defendant has been dismissed.

2. The application under Order VII Rule 11, CPC had been preferred with the submission that the agreement dated 17.03.2016 entered into between the parties although titled as ‘Leave and Licence Agreement’, was in fact a ‘Lease’ and therefore, the suit before the Civil Court was not maintainable. It had been prayed that the agreement being a lease agreement, any dispute arising out of the said agreement would be amenable to the jurisdiction of the Rent Tribunal in terms of the Rajasthan Rent Control Act, 2001 only and the jurisdiction of the Civil Court would specifically be barred.

3. The application of the defendant has been rejected by the learned Court below firstly, with a finding that prima facie the agreement as entered into between the parties seems to be a ‘Leave and Licence Agreement’; secondly, the proceedings were at the stage of defendant evidence and application under Order VII Rule 11, CPC at that stage, with the submission that intention of the parties vide the agreement/lease deed was to enter into a relationship of landlord- tenant cannot be accepted and thirdly, an application under Order VII Rule 11, CPC had been preferred by the defendant earlier too on 04.01.2018 and the same was rejected on 13.03.2018.

4. Learned counsel for the petitioner submitted that the learned Court below erred in reaching to a finding regarding the agreement in question without even going into the nature of the document. Learned counsel submitted that while considering the application under Order VII Rule 11, CPC, the Court considered the written statements as well as the evidence as led by the plaintiffs which is a fundamental error as the same could not have been considered while deciding an application under Order VII Rule 11, CPC. A bare perusal of terms and conditions of the agreement as entered into between the parties, would make it clear that the same was a ‘lease agreement’ and not a ‘Leave and Licence Agreement’ as, vide the said agreement, the exclusive possession of the premises was handed over to the defendant. Further, the agreement was got registered by the plaintiffs on the registration fee payable for a ‘lease agreement’ and not for a ‘Leave and Licence Agreement’ which fact also proves that the intention of the plaintiffs also was to create a lease agreement and not a Leave and Licence Agreement. Regarding the earlier application under Order VII Rule 11, CPC having been filed and been rejected, learned counsel submitted that the same would not operate as res judicata as vide the earlier application, the objection only qua the Court fees was raised. Regarding filing of the application at the stage of the defendant evidence, counsel submitted that it is the settled proposition of law that application under Order VII Rule 11, CPC can be filed at any stage and the same cannot be rejected on the ground of being filed at a later stage. Learned counsel submitted that the law on the point is very clear that even if the objection regarding the suit being barred by any law is not raised by the parties, the Court can suo moto take cognizance of the same and can reject the suit on the said ground.

5. In support of his submissions, learned counsel for the petitioner relied upon the following judgments:—

1. R.K. Roja vs. U.S. Rayudu and Ors.; (2016) 14 SCC 275

2. C.M. Beena and Ors. vs. P.N. Ramachandra Rao; (2004) 3 SCC 595

3. Associated Hotels of India Ltd. vs. R.N. Kapoor; AIR 1959 SC 1262

4. Sushil Kumar Mehta vs. Gobind Ram Bohra (Dead) through his Lrs.; (1990) 1 SCC 193

6. Per contra, learned counsel for the respondents submitted that for adjudication of an application under Order VII Rule 11,