Order On Board

13/2/2024

1. Default pointed out by the ofÏce is ignored.

2. This Revision has been filed by the applicant/defendant being aggrieved with the order dated 13.9.2023 passed by the Sixth Civil Judge Class-II, Durg (CG) in Civil Suit No.Class-A 6399/2013, whereby, the application preferred by him under Order 7 Rule 11 of the CPC, was dismissed.

3. Brief facts of the case are that the plaintiff/respondent No.1 filed a Civil Suit for declaration of title, permanent injunction, recovery of possession of the house after eviction from the mud hut, partition and separate possession and in aggregate, valued the suit for such relief for Rs.6700/-. In such suit, the applicant/defendant has filed an application under Order 7 Rule 11 of the CPC raising a ground therein that the plaintiff/respondent No.1 had already lost his right in his ancestral property in view of the fact that he had been adopted by late Heeralal Shindey. It is also stated in the application that the plaintiff also got mutated the name of himself and the name of his adopted father in the revenue record and subsequently, executed a registered sale-deed on 22.12.1986. Further, before filing of the suit only i.e. Civil Suit No.245A/1986 (Bholanath Shindey Vs. Chunni lal Shindey and others) by Bholanath Shindey, who was the father of the plaintiff, with his consent, the plaintiff was adopted by late Heeralal Shindey. Moreover, since the suit is time barred and proper valuation has also not been made, the plaint should be rejected on the ground of limitation also. However, by the impugned order, the applicant’s application was dismissed. Hence, this revision.

4. Heard learned counsel for the parties and also perused the impugned order and other documents annexed with the revision carefully.

5. It is well settled that for determining whether the plaint discloses any cause of action or not, the Court has to see only the averments in the plaint and the accompanying document relied upon in the plaint and the fact elicited from the plaintiff by examining him under Order 10. The Court has to presume the fact stated in the plaint as correct. The Court cannot look into the defence set up by the defendant in their written statement or the application while deciding the application under Order 7 Rule 11 of the Code of Civil Procedure, 1908.

6. In the matter of Kuldeep Singh Pathania Vs. Bikram Singh Jaryal, (2017) 5 SCC 345, the following observations was made in para No.9 to

12:-

“9. Thus, for an enquiry under Order 7 Rule 11 (a), only the pleadings of the plaintiff-petitioner can be looked into even if it is at the stage of trial of preliminary issues under Order 14 Rule 2(2). But the entire pleadings on both sides can be looked into under Order 14 Rule 2(2) to see whether the court has jurisdiction and whether there is a bar for entertaining the suit.

10.In the present case, the issue relates to an enquiry under Order 7 Rule 11(a) of the Code, and hence, there is no question of a preliminary issue being tried under Order 14 Rule 2(2) of the Code. The court exercised its jurisdiction only under Section 83(1)(a) of the Act read with Order 7 Rule 11(a) of the Code. Since the scope of the enquiry at that stage has to be limited only to the pleadings of the plaintiff, neither the written statement nor the averments, if any, filed by the opposite party for rejection under Order 7 Rule 11(a) of the Code or any other pleadings of the respondents can be considered for that purpose.

11.In Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100, this Court has dealt with a similar issue. To the extent relevant, para 12 reads as follows: (SCC p.115)

“12.From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint c