Ashok Kumar Jain vs Giriraj Kishore Mittal And Others

This civil revision has been filed by the defendant No.1 against the order dated 12.09.2018 passed in RCS No. 264-A/2018 by the 22nd Civil Judge, Class I, Bhopal whereby the application filed under Order 7, Rule 11 of C.P.C. by the petitioner/ defendant No.1 has been dismissed. The order-sheets reveal that no notice was issued to the respondents, however, respondents have given their appearance before the court and the matter is heard finally at the motion hearing stage itself.

In brief the facts of the case are that a civil suit has been filed by the respondents No.1 to 5 seeking various reliefs including declaration and permanent injunction; seeking declaration that they are in peaceful and continuous possession of the suit premises and also that the decision rendered by the Civil Court in R.C.S. No.911-A/2000 is not binding on them amongst other reliefs.

According to the petitioner, the background for filing such suit is that the petitioner/ applicant is the owner of the suit premises wherein respondent No.2 was a tenant. It is further stated that father of respondent No.1 was the sub-tenant of respondent No.2 in the suit premises , who entered into a sale agreement with respondent No.2 believing him to be owner of the suit property, however, when respondent No.1 came to know that respondent No.2 is not the owner of the suit property, civil suit was filed for recovery of the amount given for consideration of the agreement to respondent No.2 which was decreed by the trial Court on 25.02.1983. subsequently on 15.03.2000, Civil Suit No. 911-A/2000 was filed by the present applicant for eviction of respondent No.2. In the aforesaid civil suit, the father of respondent No.1 was erroneously mentioned as a party defendant, however, after his death, an application was filed for deleting his name, which was allowed and his legal representatives were not impleaded as party/ defendants. Against the order passed by the lower Court regarding non-impleadment of respondent No.1, a writ petition was also filed which was disposed of by this Court on 28.11.2017 dismissing the same, however, liberty was also given to respondent No.1 to take recourse of law as is permissible to him independently. It is submitted by the counsel for the applicant that taking undue advantage of the aforesaid liberty, the present civil suit has been filed by respondent No.1 seeking various reliefs which are not tenable in law.

In the aforesaid suit, an application for rejection of the plaint has been filed by the applicant under Order 7 Rule 11 of C.P.C. but the same has been dismissed by the learned Judge of the trial Court holding that the grounds raised in the application cannot be considered in an application filed under Order 7 Rule 11 of C.P.C. as the grounds raised can only be decided after the parties have led their evidence in support of their rival contentions.

Learned counsel for the applicant has vehemently argued before this Court and has submitted that frivolous suit has been filed by the respondent No.1 despite the fact that no right, title or interest can be proved by them and in fact it is not their case that they are title holder of the property and they are simply seeking declaration and permanent injunction, which cannot be allowed under any provisions of law. In support of his contention, learned counsel has referred to the judgment rendered by the Hon'ble Apex Court reported in (1977)4 SCC 467 in the case of T. Arivandandam Vs. T.V. Satyapal and others as also the judgment rendered by the Divisions Bench of this Court in the case of Suresh Kumar Agrawal and others Vs. Baluram and another, reported in 2009(2) M.P.L.J. 198.

Learned counsel for the respondents has opposed the prayer and has submitted that no case for interference is made out as the learned Judge of the trial Court has rightly appreciated the grounds raised in the application filed under Order 7, Rule 11 of C.P.C. to come to a conclusion that the same cannot be decided only on the basis of application and evidence is required to be led by the parties.

Learned counsel has also relied upon the judgment rendered by the Hon'ble Apex Court in the case of Saleem Bhai and others Vs. State of Maharashtra and others reported in (2003)1SCC 557 to submit that only averments of the plaint are to be taken into account while considering the application under Order 7, Rule 11 of C.P.C. and it is submitted that various disputed questions of facts have been raised by the applicant in his application under Order 7, Rule 11 of C.P.C. and as such no case for interference is made out. Learned counsel has also submitted that the civil suit which was filed by the applicant against respondent No.2 has already been dismissed on 13.08.2019 by the trial Court and it is held that the applicant has not been able to prove his title over the property. Thus,

Learned counsel has submitted that it is still to be decided as to who is the owner of the property. In view of the same, it is submitted that the civil suit has been rightly filed by the plaintiff, which can only be decided after the parties have led their evidence.

Heard the learned counsel for the parties and perused the record.

From the record this Court finds that the application filed under Order 7, Rule 11 of C.P.C. contains various averments which are purely factual in nature and required to be decided only after evidence is led by the parties.

The aforesaid application also reveals that the applicant is also relying upon certain admissions made by the plaintiff in the earlier suit. It may be that the suit has been cleverly drafted by the plaintiff but still, looking to the objections raised by the applicant in his application under Order 7, Rule 11 of C.P.C., this Court is of the considered opinion that the same can only be decided after the evidence is led by the parties in support of their respective contentions. So far as the judgement relied upon by the counsel for the petitioner are concerned, the same are distinguishable under the facts and circumstances of the present case.

Needless to say that if it is found that a frivolous plaint has been filed by the plaintiff only to harass the defendant/ applicant herein, heavy cost can be imposed on them. In view of the same, this Court does not find it to be a fit case to exercise its jurisdiction under Section 115 of C.P.C.

Accordingly, the civil revision being devoid of merit is hereby dismissed with the aforesaid observations.

C.C. As per rules.