Kailash Bairathi vs Praveen Gupta and Others

Shiv Kumar Sharma, J.—An application filed by the defendant No. 2 who is the petitioner in this case under Order 7 Rules 11 CPC, was dismissed by the trial court. Against the said order, the present action for filing the revision petition has been resorted.

The defendant petitioner incorporated the English translation of the entire suit in the revision petition. The perusal of the averments made in the plaint demonstrates that nothing has been pleaded against the defendant petitioner and no cause of action arose against him.

The short question springing for consideration is whether the suit can be proceeded against rest of the defendants?

Mr. A.K. Bajpai, learned Counsel for the defendant petitioner placed reliance on Balwant Singh Vs. The State Bank of India and Others, wherein the Full Bench of Punjab and Haryana High Court have observed thus:

The provisions of Order 7, Rule 11(a) of the Code of Civil Procedure, would be attracted only in a case where by reason of the plea that a plaint does not disclose a cause of action, the plaintiff is to be wholly non-suited, but this rule would have no applicability to cases where a plaint discloses a cause of action in respect of the part of the claim against some of the defendants, as in that event the names of the defendants against whom there is no cause of action or the suit is barred by law, have to be struck off and the suit has to proceed against the remaining defendants.

In the instant case, the plaintiff discloses the cause of action against other defendants who are non-petitioners No. 2, 3, 4, 5 and 6 in this revision petition. Therefore, I am of the view that suit shall proceed against the said defendants and name of the defendant petitioner may be struck off. The court below has not properly appreciated the provisions contained in Order 7 Rule 11 CPC, and as such committed jurisdictional error in passing the impugned order and if such order is allowed to stand, it would occasion to failure of justice.

Consequently, I allow this revision petition and set-aside the impugned order so far as it relates to the defendant petitioner and I direct that the name of defendant petitioner shall be struck off from the plaint and the suit shall proceed against the remaining defendants. Cost made easy.