Lakhan Lal vs Ramlakhan @ Akash

This Appeal has been preferred by legal representatives of the original Plaintiff- Narsingh Prasad under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC'), questioning the legality and propriety of the order dated 06.02.2021 passed in Civil Suit No.38-A/2015, whereby the learned trial Court has rejected the plaint in exercise of the powers under Order 7 Rule 11(a) of CPC. The parties to this appeal shall be referred hereinafter as per their description before the trial Court.

Briefly stated the facts of the case are that the Plaintiff-Narsingh Prasad (since deceased now represented by his legal representatives, namley, lakhan Lal and others) instituted a suit claiming possession of the suit land and house as described in plaint Schedule 'A' by submitting inter alia that a suit being Civil Suit No.37-A/1992 was earlier instituted against him by one Padma Bai and others seeking declaration of title and injunction with regard to the suit property in which one Kshama Bai was also one of the Plaintiffs. The said suit was dismissed by the concerned trial Court vide its judgment and decree dated 30.06.2003 and, the appeal preferred thereagainst was also dismissed by the Additional District Judge, Janjgir Champa vide judgment and decree dated 28.12.2005 in Civil Appeal No.28-A/2005. According to the Plaintiff, he was held to be the owner of the property in question in the said suit, while Kshama Bai was entitled to retain the possession of it till her lifetime. Further contention of the Plaintiff is that on 06.02.2006, said Kshama Bai has died and for the performance of her ritual, Defendants No.1 to 4 came and illegally encroached the suit property, and therefore, the Plaintiff has been constrained to institute the suit in the instant nature, instituted on 02.08.2007.

The aforesaid claim has been contested by Defendants No.1 to 4 and, the trial court vide its order dated 17.12.2007 has framed the issues and during the pendency of suit, the said Defendants have moved an application under Order 7 Rule 11 read with Section 151 of CPC on 19.01.2021 praying for rejection of the plaint as the same has been instituted without disclosing the cause of action.

In reply to the aforesaid application, it was stated by the plaintiffs that since the Defendants have illegally encroached the suit property on 06.02.2006, and therefore, it cannot be said that the suit has been instituted without disclosing the cause of action as alleged by the Defendants and the said application as made after 14 years of the institution of the suit is liable to be rejected.

After considering the aforesaid application, it was observed by the trial Court vide its order impugned that since the Plaintiff's suit for possession was instituted in absence of proof of his title, the suit is, therefore, not maintainable and thereby arrived at a conclusion that the cause of action has not been accrued to the Plaintiff for filing of such a claim and, accordingly rejected the plaint in exercise of the powers enumerated under Order 7 Rule 11 of CPC. This is the order which has been impugned by way of preferring this appeal.

Shri Sahu, learned counsel appearing for the Appellants-Plaintiffs submits that the Court below has erred in rejecting the plaint after 14 years from the date of its institution despite framing of issues on 17.12.2007, and that too, while considering the suit on merits by observing that no cause of action accrued to the Plaintiff for institution of the suit. It is contended further that the cause of action is a mixed question of law and fact and could be determined only upon examining the evidence of the parties. The trial Court has, therefore, committed a serious illegality in rejecting the plaint under Order 7 Rule 11(a) of CPC after passing of the considerable period of more than 14 years. In support, he placed his reliance upon the decision rendered by the supreme Court in the matter of P. V. Guru Raj Reddy represented by GPA Laxmi Narayan Reddy and another vs. P. Neeradha Reddy and others reported in (2015) 8 SCC 331.

On the other hand, learned counsel appearing for the Respondents-Defendants No.1 to 4 has supported the order impugned as passed by the trial Court.

I have heard learned Counsel for the parties and perused the entire record carefully.

From perusal of the record, it appears that the suit for possession of the suit land and house described in plaint Schedule 'A' was instituted on 02.08.2007 and Defendants No.1 to 4 have submitted their written statement as well and, after considering the pleadings of the parties, issues were framed by the trial Court on 17.12.2007. It appears further that the trial Court vide its order dated 18.02.2008 has observed, while entertaining the Issue No.4 as a preliminary issue that after the dismissal of Defendant's appeal, i.e., Civil Appeal No.28-A/2005 on 28.12.2005, a second appeal being Second Appeal No.52 of 2006 was preferred by them and which is pending and the question of title is to be determined therein, therefore, it would be appropriate to keep the proceedings of the instant suit in abeyance and accordingly stayed the proceedings of it, awaiting the decision of the said appeal.

It appears further that after the dismissal of the said appeal on 16.07.2019 in default, an application enumerated under Order 7 Rule 11 of CPC read with Section 151 of CPC has been moved by Defendants No.1 to 4 seeking rejection of the plaint as it has been instituted without disclosing the cause of action and, after entertaining the same at such a belated stage, the trial Court has rejected the plaint as observed herein above. The approach of the trial court is, however, unreasonable and deserves to be interfered as the scope of the enquiry for the purpose of deciding the application under Order 7 Rule 11 of CPC is limited only to the pleadings of the Plaintiff and the defence cannot be looked into as held by the Supreme Court in the matter of Soumitra Kumar Sen vs. Shyamal Kumar Sen and others reported in (2018) 5 SCC 644, wherein it has been observed in this regard at para 9, which reads as under:-

“9. …...........However, at this stage, as rightly pointed out by the High Court, the defence in the written statement cannot be gone into. One has to only look into the plaint for the purpose of deciding application under Order 7 Rule 11 CPC. It is possible that in a cleverly drafted plaint, the plaintiff has not given the details about Suit No. 268 of 2008 which has been decided against him. He has totally omitted to mention about Suit No. 103 of 1995, the judgment wherein has attained finality. In that sense, the plaintiff-Respondent 1 may be guilty of suppression and concealment, if the averments made by the appellant are ultimately found to be correct. However, as per the established principles of law, such a defence projected in the written statement cannot be looked into while deciding application under Order 7 Rule 11 CPC.”

Similar is the view taken in the matter of P. V. Guru Raj Reddy represented by GPA Laxmi Narayan Reddy and another vs. P. Neeradha Reddy and others (supra), wherein it has been observed by the Supreme Court at para 5 as under:-

“5. Rejection of the plaint under Order 7 Rule 11 of CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7 Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order 7 Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial.”

Yet, in the matter of Mayar (H. K.) Ltd. and others vs. Owners & Parties, Vessel M. V. Fortune Express and others reported in (2006) 3 SCC 100, it has been held by the Supreme Court at para 12, which reads as under:-

“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 cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order 7 Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants.”

In the light of the aforesaid principles, it is, therefore, necessary to examine the averments made in the plaint alone and, a bare perusal of it would show that when Defendants have encroached the land in question illegally on 06.02.2006, the Plaintiff was compelled to institute the suit. The cause of action, thus, accrued to him for the institution of the suit and in such circumstances, it cannot be said that the suit has been filed without disclosing the cause of action. Pertinently to be noted here further that the trial court, after considering the pleadings of the parties, has framed the issues on 17.12.2007 and perusal of it would show that the issue pertaining to the cause of action has not been framed, yet the plaint has been rejected in exercise of the powers provided under clause (a) of Rule 11 Order 7 of CPC. The finding of the trial Court is, therefore, liable to be and is hereby set aside.

Consequently, the appeal is allowed and the matter is remitted to the First Additional District Judge, Janjgir Champa and/or the concerned trial Court with a direction to restore the suit in its original number and decide the same in accordance with law. The parties are hereby directed to remain present before the concerned trial Court on 25.04.2023.