Smt. Saroj Saini vs Sri Kishan and Another

Gopal Krishan Vyas, J.—In the suit filed before the Addl. Civil Judge (Jr. Dn.) No. 2, Jodhpur, respondent-plaintiffs made a prayer for permanent injunction. In the said suit, earlier an application was filed under Order VII Rule 11, C.P.C. by the present petitioner raising only objection that the suit has not been properly valued. Application so filed by the petitioner was rejected, against which, a writ petition was filed before this Court being S.B. Civil Writ Petition No. 196/2009. Said writ petition was dismissed vide order dated 14.01.2009, in which, following order was made:

In view of the above reason, I do not find any reason to interfere in the order passed by the trial Court rejecting the petitioner''s application in the peculiar facts of the case. However, it is necessary to observe that when suit is barred by law or cannot proceed for trial then that can be rejected at earliest stage so that the court''s time may not be harassed by frivolous litigation.

In view of the above reason for other objections, the petitioner may file separate application may be under Order 7 Rule 11 CPC about the maintainability of the suit, which can be examined by the trail Court in accordance with law within the scope under Order 7 Rule 11 CPC. The writ petition of the petitioner is, therefore, dismissed with above observation.

In pursuance of the opportunity granted by the aforesaid order, another application was filed under Order VII Rule 11 C.P.C., read with Part 2 of the Specific Relief Act. Respondent-plaintiffs filed reply to the said application. In the application filed after the above order passed in the writ petition, it was specifically pleaded that the present suit is filed by the respondent-plaintiffs against the petitioner for seeking permanent injunction in respect of the house in question and, since there is no prayer for not dispossessing from the house in question, therefore, in the absence of specific prayer, the present suit is barred by law.

Respondent-plaintiffs filed reply to the said application and denied the contentions averred by the petitioner and prayed to reject the application filed by the petitioner. Learned trial Court, after hearing both the parties, rejected the application filed by the petitioner-defendant vide order dated 24.07.2009 which is under challenge in this revision petition.

Learned Counsel for the petitioner vehemently argued that the learned trial Court has dismissed the application in a very hyper-technical manner and without cogent reasons, therefore, learned trial Court has committed manifest error and material illegality while dismissing the said application. It is, therefore, prayed that the impugned order may be quashed. Learned Counsel for the petitioner further submitted that it was specifically observed in the afore-quoted order by this Court that if the suit is barred by law or cannot proceed for trial, then, that can be rejected at the earliest stage so that Court''s time may not be wasted. Above observation was made while rejecting the writ petition filed by the petitioner.

As per learned Counsel for the petitioner, it was pleaded by the plaintiffs that the defendant and plaintiffs both have purchased the property from the predecessors of the title-holder Kishan Pyari who was also licensee of the Urban Improvement Trust and plaintiffs have specifically submitted in the plaint that defendant and plaintiff both are licensee, then, there is no case of licensor and licensee between plaintiff and defendant and defendant is in possession in equivalent capacity, therefore, plaintiffs have no right to seek injunction against the defendant co-sharer; and, therefore, the suit filed by the plaintiffs is not maintainable. In this view of the matter, the application filed by the petitioner under Order VII Rule 11, C.P.C. was liable to be allowed; but, the learned trial Court dismissed the application without considering important material facts.

It is submitted by learned Counsel for the petitioner that the learned trial Court has failed to act and exercise jurisdiction with the parameters of law and judicial spirit as Section 32 of the Specific Relief Act provides that decree can only be granted upon hearing on the merit of the case and it nowhere over-rides the effect of Order VII Rule 11, C.P.C. for vital lacunae, therefore, order passed by the trial Court is not maintainable and deserves to be quashed.

Learned Counsel for the petitioner invited attention of the Court towards, judgments reported in the, (1) Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, While citing these judgments, it is submitted that order impugned dated 24.07.2009 may be quashed and application filed by the petitioner under Order VII Rule 11, C.P.C. may be allowed.

I have considered the arguments advanced by learned Counsel for the petitioner, so also, perused the pleadings of the case as well as order impugned.

In my opinion, although earlier while rejecting the writ petition filed by the petitioner against the earlier order passed upon application filed under Order VII Rule 11, C.P.C. by the trial Court dated 14.01.2009, it was observed by the co-ordinate Bench of this Court that the petitioner may file a separate application under Order VII Rule 11, C.P.C. about the maintainability of the suit which can be examined by the trial Court in accordance with law within the scope of Order VII Rule 11, C.P.C. Therefore, it is abundantly clear that after filing fresh application by the petitioner the learned trial Court was required to decide the fresh application according to Order VII Rule 11, C.P.C.

Upon perusal of the impugned order, it is revealed that reasons for dismissing the said application is that in the suit filed by the respondent-plaintiffs although no specific prayer has been made with regard to dispossession; but prayer has been made that defendant-petitioner shall be restrained from enjoyment and occupation of the land in question, therefore, it cannot be said that suit is, in the absence of prayer of declaration, not maintainable. The matter is required to be adjudicated upon evidence after due trial.

I have perused the plaint also and prayer so made in the suit. In my opinion, at the time of deciding application under Order VII Rule 11 (d), C.P.C. the Court is required to see whether upon perusal of the plaint suit is barred by any law. Here, in this case, upon perusal of the plaint, it does not emerge that the suit filed by the respondent-plaintiff is barred by any law. Therefore, the judgments cited by learned Counsel for the petitioner, which is not related with maintainability of the suit, are altogether different upon facts. No relief can be granted to the petitioner. More so, as per language of Order VII Rule 11(d) C.P.C., the learned trial Court has rightly rejected the application under Order VII Rule 11(d), C.P.C. by the petitioner. In recent Judgments reported in Abdul Gafur and Another Vs. State of Uttarakhand and Others, , the following adjudication has been made by the Hon''ble Apex Court:

Abdul Gafur and Another Vs. State of Uttarakhand and Others,

It is trite that the rule of pleadings postulates that a plaint must contain material facts. When the plaint read as a whole does not disclose material facts giving rise to a cause of action which can be entertained by a civil Court, it may be rejected in terms of Order 7 Rule 11 of the Code. Similarly, a plea of bar to jurisdiction of a civil Court has to be considered having regard to the contentions raised in the plaint. For the said purpose, averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety and the Court would not be justified in determining the question, one way or the other, only having regard to the reliefs claimed dehors the factual averments made in the plaint. (See Church of North India v. Lavajibhai Ratanjibhai (2008) 12 SCC 661:

24 . It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.

The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the Court at that stage would not consider any evidence or enter into a disputed question of fact or law. In the event, the jurisdiction of the Court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for rejection of plaint should be entertained.

In this view of the matter, in my opinion, no error has been committed by the trial Court while rejecting the application filed by the petitioner under Order VII Rule 11, C.P.C. because at the initial stage the averments made in the plaint are required to be taken into consideration and no other material is required to be seen for deciding application filed under Order VII Rule 11, C.P.C. In this view of the matter, there is no force in this revision petition.

Hence, this revision petition is hereby dismissed.