Point of Law : These infirmities go to root of the matter and the decision of trial Court rejecting the plaint insofar as defendants 1, 3 to 7 are concerned is not sustainable

JUDGMENT :

P.Naveen Rao, J.

1. Heard learned counsel Sri K.Rajendran for the appellants and the learned counsel Sri Chandrasen Reddy for respondent No.1.

2. Plaintiffs in O.S.No.605 of 2014 on the file of II Additional District Judge, Ranga Reddy District are appellants. Parties are referred to as arrayed in the suit.

3. First plaintiff is a Company registered under the Companies Act, 1956 and second plaintiff is the Managing Director of the first plaintiff-company. The first defendant was Ex-Director of first plaintiff-company. Second defendant is brother-in-law of 1st defendant. Third defendant was Ex-Director of 1st plaintiff. Defendants 3 to 7 were shareholders of 1st plaintiff-company. In the suit, plaintiffs sought the following prayers:

“I. Declare the acts of defendants as libellous, slanderous, defamatory, malicious and the share transfer agreement dated 08.04.2010 as null and void; consequently, order the defendants jointly and severally to pay a sum of 1,05,57,749/- to the plaintiffs;

That interest at the rate of 18 per cent per annum calculated from the date of filing the suit, pendente-lite till realization be decreed on the said amount;

Grant perpetual injunction restraining the defendant-1 from claiming or representing or holding out to the world-at-large as Director of the plaintiff company, restraining him from using the Letter Heads/Stationery or any other/similar materials of the plaintiff company for his use to communicate, write letters/circulars or representing, dealing or holding out to the public, industry, business, trade or banks/financial institutions or any agencies or doing anything in any manner detrimental/scandalous to the interest of the plaintiff’s company and its name;

IV. That the cots of the suit be awarded;

V. That such other and or further relief(s) be granted as may be just and proper in the circumstances of the case and in the interest of justice.”

4. In the said suit, 2nd defendant filed I.A.No.707 of 2015 under Order VII Rule 11 read with Section 151 of Code of Civil Procedure, 1908 (CPC) to reject the plaint. By Order dated 22.11.2019, the trial Court dismissed the I.A., holding that plaint cannot be rejected partly. This order has become final.

5. While so, I.A.No.959 of 2015 is filed by defendants 1, 3 to 7 under Order VII Rule 11 of CPC to reject the plaint. While the Court holds that the plaintiffs were set ex parte, the plaintiffs claim that they were not put on notice.

6. Be that as it may, the trial Court allowed the defendants 1, 3 to 7 to lead evidence and on due consideration of pleadings, evidence brought on record and submissions of defendants, allowed the I.A., rejecting the plaint against defendants 1, 3 to 7 only.

7. The plaintiffs filed I.A.No.586 of 2017 in I.A.No.959 of 2015 to recall/set aside the decree/order in O.S.No.605 of 2014. By Order dated 15.12.2021, the I.A., was dismissed. Aggrieved thereby, this Appeal is preferred.

8. Learned counsel for plaintiffs contended that trial Court grossly erred in rejecting the plaint partly and impugned decree is liable to be set aside on that ground alone. He would further submit that the trial Court erred in considering the averments in the written statement/affidavit filed in I.A., and documents marked on behalf of defendants to grant decree of rejection of plaint. It is elementary principle that while considering application under Order VII Rule 11 of CPC, Court has to consider only the plaint averments and documents cited by the plaintiffs.

9. He would further submit that the present decision is contrary to earlier decision in I.A.No.707 of 2015. In the same suit, there cannot be two conflicting decisions.

10. According to the learned counsel, plaintiffs have narrated defamatory acts of defendants in paragraphs 14 and 15 of the plaint and in paragraph-19 the dates of libellous statements/communications are set out. Cause of action is continuous, started in May, 2011 and continued till 13.05.2013 and thereon, suit was filed within ti