Indeed, the point of non-maintainability of the suit is sought to be raised by referring to the terms of the compromise decree and not by referring to the pleadings in the plaint. Such an exercise is not permissible while dealing with the matter under Order 7, Rule 11(d) of Civil Procedure Code. A plaint can be rejected under the said provision of law only if the plaint of the face of it discloses the same to be barred by any law in force, and not by referring to the materials which are sought to be placed on record by the defendant in answer to the plaint. In case the defendant requires to refer to any material other than the plaint, certainly such an exercise is permissible by way of leading evidence after framing issues and satisfying the Court about non-maintainability of the suit. But the same exercise cannot be done under Order VII, Rule 11(d). On account of any material being available with the defendant to prove that the suit being not maintainable, the same cannot be a ground to non-suit the plaintiff by exercise of power under Order VII, Rule 11(d) of Civil Procedure Code. In order to get the necessary relief on the basis of such materials, the defendant will have to lead necessary evidence by producing such materials on record in accordance with the provisions of law and only thereupon the Court can take appropriate decision as regards the objection sought to be raised by the respondent regarding non-maintainability of the suit.
1. Heard the learned advocates for the parties. Rule. By consent, the rule is made returnable forthwith.
2. The petitioner challenges the order dated 21st June 2002 rejecting the application filed by the petitioner for rejection of the plaint under Order 7, Rule 11(d) of the Civil Procedure Code.
3. It is the contention of the learned advocate for the petitioner that the suit has been filed for execution of the compromise decree in the earlier suit between the parties and therefore considering the provisions of section 47 read with Order VII, Rule 11(d) of Civil Procedure Code the plaint is liable to be rejected.
4. Referring to clauses 4 and 10 in the compromise decree passed on 19th March 1987 in Regular Civil Suit No. 24 of 1987 between the parties to the proceedings, it was sought to be contended that in terms of clause 4 the parties had agreed to enjoy in common the open space by the side of the road and had agreed not to obstruct for such enjoyment to each other and further in terms of Clause 10 of the said decree it was agreed that in case of necessity for enforcement of any of the said terms of the said decree the same can be obtained by way of execution of the said decree. Further drawing the attention to the present suit, it was sought to be contended that it is the case of the respondent/plaintiff that the parties started enjoying the property in terms of the said compromise decree but has recently the petitioner/defendant has caused obstruction to the construction being carried out by the respondent/plaintiff in the said area. According to the learned advocate for the petitioner therefore it virtually amounts to seeking execution of the said compromise decree. The contention is that since section 47 of Civil Procedure Code provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of decree shall be determined by Court executing the decree and not by a separate suit, and since the grievances of the respondent/plaintiff relates to the non-compliance of the compromise decree in the earlier suit, and the same being apparent from the pleadings in the plaint, the remedy for the respondent/plaintiff lies by way of execution of said compromise decree and not by way of separate suit, and therefore, it is a case fit to invoke powers under Order VII, Rule 11(d) of Civil Procedure Code and to reject the plaint.
5. Undoubtedly, Order VII, Rule 11(d) of Civil Procedure Code provides that the plaint shall be rejected in case when the suit appears from the statement in the plaint to be barred by any law. The object behind the said provision of law is to avoid manifestly vexatious and meritless litigation and to protect the parties being unnecessarily harassed by others. The clause (d) of Rule 11 of the Order VII of Civil Procedure Code would apply to the cases when it would reveal from the contents of the plaint that the suit is barred. In other words, in order to enable the Court to arrive at the conclusion that the suit filed by plaintiff is barred, the pleadings in the plaint should apparently disclose the facts revealing the bar to the suit instituted by the plaintiff. The conclusion under clause (d) regarding the bar to the suit cannot be arrived at on the basis of materials extraneous to the pleadings in the plaint. The jurisdiction of the Court to take action under Order VII, Rule 11(d) of Civil Procedure Code can arise only in case where the pleadings in the plaint are sufficient to disclose the bar to the suit, and not otherwise. Of course, the jurisdiction can be exercised at any stage of the suit, however, the decision under Order VII, Rule 11(d) has to be on the basis of the pleadings in the plaint. The law on this point being very clear, it would be necessary to examine the pleadings in the plaint before arriving at any conclusion in the matter in relation to the contentions raised by the petitioner.
6. Perusal of the plaint disclose that the suit has been filed for permanent injunction to restrain the petitioner from obstructing the respondent from carrying out construction in the property described in para 1 Clause (b) and (c) and also from obstructing transportation of construction materials to the suit plot. The plaint also discloses that there was a dispute between the parties in relation to the entire property described in para 1 clause (a), pursuant to which the suit bearing No. 24/87 was filed and the same was settled by way of compromise on 19-3-1987 that the property which was subject matter of the compromise decree was being enjoyed in terms of the said compromise decree and there was no obstruction whatsoever for enjoying the property according to the allotment in the said decree. The pleadings further disclose that the compromise decree was fully executed and subsequent thereto there was fresh cause of action in favour of the respondent on account of the alleged interference or obstruction by the petitioner in the course of construction sought to be carried out by the respondent/plaintiff in the suit plot. Apparently therefore on the face of the pleading nowhere it discloses any complaint regarding execution or discharge or satisfaction of the compromise decree in R.C.S. No. 24/87 but it discloses the suit having been instituted on account of a fresh cause of action having arisen on account of obstruction to the construction of a structure by the respondent in the suit plot. It is pertinent to note that the plaint also discloses the fact that the construction is being carried out in the plot which was allotted under the compromise decree and accordingly was enjoyed by the respondent. Apparently, the case pleaded is to the effect that the construction is being carried out in the plot in enjoyment of the respondent pursuant to allotment thereof under compromise decree which was duly executed, and much after execution of the said document, the petitioner has sought to interfere in such enjoyment giving rise for fresh cause of action. It is also to be noted that there is no averment in the plaint that the said compromise decree was not executed or had remained to be executed.
7. The pleadings in the plaint, therefore, nowhere discloses any fact which could reveal bar to the suit. The pleading also does not disclose any thing about non execution of the compromise decree or any difficulty in discharge or satisfaction of the said decree. The plaint apparently disclose a fresh cause of action for filing the suit. The plaint does not pertain to any point relating to the execution of the compromise decree. Being so, question of invoking power under Order VII, Rule 11(d) of Civil Procedure Code for rejection of the said plaint does not arise at all.
8. Indeed, the point of non-maintainability of the suit is sought to be raised by referring to the terms of the compromise decree and not by referring to the pleadings in the plaint. Such an exercise is not permissible while dealing with the matter under Order 7, Rule 11(d) of Civil Procedure Code. A plaint can be rejected under the said provision of law only if the plaint of the face of it discloses the same to be barred by any law in force, and not by referring to the materials which are sought to be placed on record by the defendant in answer to the plaint. In case the defendant requires to refer to any material other than the plaint, certainly such an exercise is permissible by way of leading evidence after framing issues and satisfying the Court about non-maintainability of the suit. But the same exercise cannot be done under Order VII, Rule 11(d). On account of any material being available with the defendant to prove that the suit being not maintainable, the same cannot be a ground to non-suit the plaintiff by exercise of power under Order VII, Rule 11(d) of Civil Procedure Code. In order to get the necessary relief on the basis of such materials, the defendant will have to lead necessary evidence by producing such materials on record in accordance with the provisions of law and only thereupon the Court can take appropriate decision as regards the objection sought to be raised by the respondent regarding non-maintainability of the suit.
9. In the circumstances therefore no fault can be found in the impugned order as it does not disclose any jurisdictional error and hence does not require any interference in the revisional jurisdiction by this Court. The petition therefore fails and it is dismissed. The rule is discharged with no order as to costs.
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Bombay High Court
Shivrudra Shivling Pailwan And ... vs Prakash
Maharudhra Pailwan And ... on 19 August, 2002
Maharudhra Pailwan And ... on 19 August, 2002
Equivalent citations: 2002 (6) BomCR 546,
(2003) 2 BOMLR 167, 2003 (1) MhLj 299,
2003 (1) ALLMR 48
(2003) 2 BOMLR 167, 2003 (1) MhLj 299,
2003 (1) ALLMR 48
Bench: R Khandeparkar
1. Heard the learned advocates for the parties. Rule. By consent, the rule is made returnable forthwith.
2. The petitioner challenges the order dated 21st June 2002 rejecting the application filed by the petitioner for rejection of the plaint under Order 7, Rule 11(d) of the Civil Procedure Code.
3. It is the contention of the learned advocate for the petitioner that the suit has been filed for execution of the compromise decree in the earlier suit between the parties and therefore considering the provisions of section 47 read with Order VII, Rule 11(d) of Civil Procedure Code the plaint is liable to be rejected.
4. Referring to clauses 4 and 10 in the compromise decree passed on 19th March 1987 in Regular Civil Suit No. 24 of 1987 between the parties to the proceedings, it was sought to be contended that in terms of clause 4 the parties had agreed to enjoy in common the open space by the side of the road and had agreed not to obstruct for such enjoyment to each other and further in terms of Clause 10 of the said decree it was agreed that in case of necessity for enforcement of any of the said terms of the said decree the same can be obtained by way of execution of the said decree. Further drawing the attention to the present suit, it was sought to be contended that it is the case of the respondent/plaintiff that the parties started enjoying the property in terms of the said compromise decree but has recently the petitioner/defendant has caused obstruction to the construction being carried out by the respondent/plaintiff in the said area. According to the learned advocate for the petitioner therefore it virtually amounts to seeking execution of the said compromise decree. The contention is that since section 47 of Civil Procedure Code provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of decree shall be determined by Court executing the decree and not by a separate suit, and since the grievances of the respondent/plaintiff relates to the non-compliance of the compromise decree in the earlier suit, and the same being apparent from the pleadings in the plaint, the remedy for the respondent/plaintiff lies by way of execution of said compromise decree and not by way of separate suit, and therefore, it is a case fit to invoke powers under Order VII, Rule 11(d) of Civil Procedure Code and to reject the plaint.
5. Undoubtedly, Order VII, Rule 11(d) of Civil Procedure Code provides that the plaint shall be rejected in case when the suit appears from the statement in the plaint to be barred by any law. The object behind the said provision of law is to avoid manifestly vexatious and meritless litigation and to protect the parties being unnecessarily harassed by others. The clause (d) of Rule 11 of the Order VII of Civil Procedure Code would apply to the cases when it would reveal from the contents of the plaint that the suit is barred. In other words, in order to enable the Court to arrive at the conclusion that the suit filed by plaintiff is barred, the pleadings in the plaint should apparently disclose the facts revealing the bar to the suit instituted by the plaintiff. The conclusion under clause (d) regarding the bar to the suit cannot be arrived at on the basis of materials extraneous to the pleadings in the plaint. The jurisdiction of the Court to take action under Order VII, Rule 11(d) of Civil Procedure Code can arise only in case where the pleadings in the plaint are sufficient to disclose the bar to the suit, and not otherwise. Of course, the jurisdiction can be exercised at any stage of the suit, however, the decision under Order VII, Rule 11(d) has to be on the basis of the pleadings in the plaint. The law on this point being very clear, it would be necessary to examine the pleadings in the plaint before arriving at any conclusion in the matter in relation to the contentions raised by the petitioner.
6. Perusal of the plaint disclose that the suit has been filed for permanent injunction to restrain the petitioner from obstructing the respondent from carrying out construction in the property described in para 1 Clause (b) and (c) and also from obstructing transportation of construction materials to the suit plot. The plaint also discloses that there was a dispute between the parties in relation to the entire property described in para 1 clause (a), pursuant to which the suit bearing No. 24/87 was filed and the same was settled by way of compromise on 19-3-1987 that the property which was subject matter of the compromise decree was being enjoyed in terms of the said compromise decree and there was no obstruction whatsoever for enjoying the property according to the allotment in the said decree. The pleadings further disclose that the compromise decree was fully executed and subsequent thereto there was fresh cause of action in favour of the respondent on account of the alleged interference or obstruction by the petitioner in the course of construction sought to be carried out by the respondent/plaintiff in the suit plot. Apparently therefore on the face of the pleading nowhere it discloses any complaint regarding execution or discharge or satisfaction of the compromise decree in R.C.S. No. 24/87 but it discloses the suit having been instituted on account of a fresh cause of action having arisen on account of obstruction to the construction of a structure by the respondent in the suit plot. It is pertinent to note that the plaint also discloses the fact that the construction is being carried out in the plot which was allotted under the compromise decree and accordingly was enjoyed by the respondent. Apparently, the case pleaded is to the effect that the construction is being carried out in the plot in enjoyment of the respondent pursuant to allotment thereof under compromise decree which was duly executed, and much after execution of the said document, the petitioner has sought to interfere in such enjoyment giving rise for fresh cause of action. It is also to be noted that there is no averment in the plaint that the said compromise decree was not executed or had remained to be executed.
7. The pleadings in the plaint, therefore, nowhere discloses any fact which could reveal bar to the suit. The pleading also does not disclose any thing about non execution of the compromise decree or any difficulty in discharge or satisfaction of the said decree. The plaint apparently disclose a fresh cause of action for filing the suit. The plaint does not pertain to any point relating to the execution of the compromise decree. Being so, question of invoking power under Order VII, Rule 11(d) of Civil Procedure Code for rejection of the said plaint does not arise at all.
8. Indeed, the point of non-maintainability of the suit is sought to be raised by referring to the terms of the compromise decree and not by referring to the pleadings in the plaint. Such an exercise is not permissible while dealing with the matter under Order 7, Rule 11(d) of Civil Procedure Code. A plaint can be rejected under the said provision of law only if the plaint of the face of it discloses the same to be barred by any law in force, and not by referring to the materials which are sought to be placed on record by the defendant in answer to the plaint. In case the defendant requires to refer to any material other than the plaint, certainly such an exercise is permissible by way of leading evidence after framing issues and satisfying the Court about non-maintainability of the suit. But the same exercise cannot be done under Order VII, Rule 11(d). On account of any material being available with the defendant to prove that the suit being not maintainable, the same cannot be a ground to non-suit the plaintiff by exercise of power under Order VII, Rule 11(d) of Civil Procedure Code. In order to get the necessary relief on the basis of such materials, the defendant will have to lead necessary evidence by producing such materials on record in accordance with the provisions of law and only thereupon the Court can take appropriate decision as regards the objection sought to be raised by the respondent regarding non-maintainability of the suit.
9. In the circumstances therefore no fault can be found in the impugned order as it does not disclose any jurisdictional error and hence does not require any interference in the revisional jurisdiction by this Court. The petition therefore fails and it is dismissed. The rule is discharged with no order as to costs.
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