Pramod vs Vimla Devi

In this petition under Article 227 of the Constitution of India, the petitioners have assailed the validity, legality and proprietary of the order dated 17/01/2019 passed in Civil Suit No. 176A/2018 whereby application filed by the petitioners/defendants No. 1 and 2 under Order 7 Rule 11 of the Code of Civil Procedure (herein after referred to as the 'Code') had been rejected.

The brief facts leading to filing of this case is that the respondents/plaintiffs No.1 to 4 filed a suit for declaration and permanent injunction in respect of agricultural land situated at village Chonda, Tehsil and District Morena in Survey No. 590, Survey No. 770 to 788 and Survey No. 808, 809 having share in the aforesaid lands. It was further pleaded that in view of the power of attorney executed by the respondents/plaintiffs, respondent No.1 had no authority to execute the agreement in favour of respondent No.2.

After receiving notice the respondents/plaintiffs instead of filing the written statement filed an application under Order 7 Rule 11 r.w. Section 151 of the 'Code' raising an objection that the plaintiffs had under valued the relief and has not paid the ad-volerum court fees, therefore, the plaint deserves to be rejected.

The petitioners/defendants filed reply to the aforesaid application and stated that the document which is sought to be declared as null and void has been illegally prepared by the petitioners/defendants, therefore, since beginning itself is not binding on them and the document sought to be declared null and void contains the valuation and according to the said document valuation has been done and proper court fees has been affixed on the plaint as such the application is not maintainable and deserves to be dismissed. The petitioners have placed reliance on the judgment of the apex court in the case of Saleem Bhai and others Vs. State of Maharashtra and others (AIR 2003 SCC 759) to contend that the learned trial court erred in directing the petitioners to raise the objection with regard to under valuation in the written statement, which would be considered after recording of evidence.

The trial court vide the impugned order rejected the application under Order 7 Rule 11 of the 'Code' on the ground that it is aware of the fact that while deciding the application, the averments made in the plaint are required to be seen. The objections raised by the defendants in the application is the mixed question of fact and law which cannot be decided only on the basis of the averments made in the plaint rather can be decided after recording evidence. The trial court also held that the grounds raised in the application relating to under valuation of the suit can be raised by the defendants in their written statement.

Heard learned counsel of both the parties.

For the purpose of convenience, Order 7 Rule 11 of the 'Code' is reproduced below :-

Rejection of plaint - The plaint shall be rejected in the following cases :-

(a) Where it does not disclose a cause of action;

(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) Where the suit appears from the statement in the plaint to be barred by any law;

[(e) Where it is not filed in duplicate;]

[(f) Where the plaintiff fails to comply with the provisions of rule 9;]

[Provided that, the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]

On perusal of the aforesaid provision, the case of the petitioners/defendants do not fall under any of the exceptions as enumerated herein above. Moreso, the apex court judgment in Saleem Bhai (supra) is also of no help to the petitioners since the present case does not fall under clause (A and D of Rule 11 of Order 7 of the C.P.C.) where the averments in the plaint are germane; the plea taken by the defendants in the written statement would be wholly irrelevant at that stage. Moreover, the application under Order 7 Rule 11 of 'Code' was not decided.

But in the present case as already held that the same does not fall in any of the exceptions to Order 7 Rule 11 of the 'Code' and trial court has held that it is purely a mixed question of fact and law, therefore, the same can be raised in the written statement.

Admittedly, there was good reason for the trial court for refusing to reject the plaint under the said provision. Moreover, the trial court did not shut out the petitioners/defendants from raising the plea relating to under valuation of the suit in the written statement and as also the fact that after recording evidence the petitioners/defendants would be at liberty to raise the question of under valuation. The trial court has not committed any error in rejecting the application under Order 7 Rule 11 of the 'Code' calling for interference by exercising the inherent powers under Article 227 of the Constitution of India.

Accordingly, the writ petition is dismissed.

No order as to cost.