It is
required to be noted that under Order VII Rule 11(a), the Court is required to
find out whether any cause of action is disclosed. In
the instant case, the
Appellant has already disclosed the cause of action in the plaint. It is not the
case that the cause of action is not disclosed in the plaint, at all. The defence
of the Respondents therefore, cannot be considered at such a stage, as at this
stage the Court is only required to read the plaint and find out whether the
cause of action is disclosed or not. The defence of the other side is required to
be considered only at the time when the trial begins.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
with
FIRST APPEAL NO. 613 OF 2009
CIVIL APPLICATION NO. 1863 OF 2009
The Brihanmaharashtra Sugar Syndicate Ltd.
Versus
The Oriental Insurance Co. Ltd. & Anr.
CORAM : P. B. MAJMUDAR &
R. V. MORE, JJ.
DATED : 8th SEPTEMBER, 2009.1
Citation;2009 (6) MH L J157
2 are the Original Defendant Nos.1 & 2 in the Special Civil Suit No.270 of 2008.
The said suit was filed before the learned Civil Judge Senior Division Pune,
for getting decree for damages, as according to the Appellant, his vehicle was
subjected to damage because of the accident in question. It is the case of the
Appellant that the vehicle in question was insured with the Respondent No.1 i.e.
Insurance Company and the Respondent No.2 is the dealer of the said vehicle
and in view of the loss sustained by the Appellant as it is the case of total loss,
the Respondents should jointly pay the damages to the Appellant in quantum
In the aforesaid proceedings, the
of the value of the car in question.
Respondent No.1-Insurance Company filed an Application at Exhibit “11” which
application was filed under the provisions of Order VII Rule 11 of the Code of
Civil Procedure, 1908 on the ground that no cause of action has arisen against
the Respondent No.1 for filing the suit as the vehicle involved in the suit is not
insured with the Respondent No.1 and in that view of the matter the plaint is
The said application was opposed by the present
required to be rejected.
Appellant/Original Plaintiff on various grounds. The learned Trial Judge by the
impugned order dated 9th February, 2009 allowed the said application at Exhibit
“11” and the plaint was rejected against the Respondent No.1. The learned
Trial Judge ordered that the suit to proceed against the Respondent No.2 only.
It is the aforesaid order which is impugned at the instance of the
Appellant/Original Plaintiff.
4.
Mr. Dushyant Pagare, learned Counsel for the Appellant, submitted
that the learned Trial Judge has gravely erred in passing the impugned order at
the stage even when the issues are not framed. The learned Counsel for the
Appellant, further submitted that the learned Trial Judge should
not
have
passed the impugned order without recording the evidence and without giving
an opportunity to the Appellant to lead appropriate evidence before the Trial
Court and it is further submitted the Application under Order VII Rule 11 of the
Code of Civil Procedure, 1908 was premature as the said point is required to
be decided in the suit itself and finding should have been recorded after
5.
considering the evidence on record.
The learned Counsel for the Respondent No.1, on the other hand
submitted that since the vehicle is not insured with the Respondent No.1, the
suit was naturally not maintainable against the Respondent No.1. The learned
Counsel further submitted that in case if this
court comes to the conclusion
that said question is required to be decided in the suit itself,
then the
Respondent No.1 be permitted to file written statement. The learned Counsel
for the Respondent No.2 submitted that Respondent No.2 has nothing to say in
this matter as the suit is allowed to be proceeded against Respondent No.2
who is the Original Defendant No.2 in the suit.
6.
We have heard the learned Advocates at length. We have also
gone through the impugned order and other documents forming part of the
proceedings.
So far as Order VII Rule 11(a) of the C.P.C.1908 is concerned,
the Court is required to consider the averments made in the plaint. In the
instant case, even though no issues are framed and even though no written
statement is filed by the Respondent No.1, the Trial Court has considered the
cover note and some other documents for coming to the conclusion that the
vehicle was not insured with the Respondent No.1- Insurance Company. It is
required to be noted that under Order VII Rule 11(a), the Court is required to
find out whether any cause of action is disclosed. In
the instant case, the
Appellant has already disclosed the cause of action in the plaint. It is not the
case that the cause of action is not disclosed in the plaint, at all. The defence
of the Respondents therefore, cannot be considered at such a stage, as at this
stage the Court is only required to read the plaint and find out whether the
cause of action is disclosed or not. The defence of the other side is required to
be considered only at the time when the trial begins.
7.
In our view, resort to provisions of Order VII Rule 11(a) was not
justified at the hand of the learned Trial Judge, as the learned Trial Judge on
the basis of the Application of the Respondent No.1 has considered the cover
note and some other documentary evidence which is against the scheme of
Order VII Rule 11(a) of the Code of Civil Procedure, 1908. In a given case, if
the cause of action is not disclosed in the plaint, the Court can reject the plaint
under Order VII Rule 11(a) of the Code of Civil Procedure, 1908. As stated
earlier,
the cause of action is disclosed in the plaint, then at that stage the
Court has no jurisdiction to pass the order which has been passed in the
present case. The Court is not required to consider the defence of other side
while deciding an application under Order VII Rule 11(a). The Trial Court has
in considering the defence of the
therefore, committed an error of law
Respondent No.1 and other documents produced by the Respondent No.1 for
coming to the conclusion that no cause of action is disclosed in the plaint. The
Court was required to read the plaint and beyond that it was not permissible to
go through any other document at such a stage. The learned Trial Judge has
considered the documentary evidence given by Respondent No.1 on merits
which is not permissible unless appropriate issues are framed and unless
In view of what has been stated above, the impugned order is not
8.
parties are allowed to lead evidence in this behalf.
sustainable and is accordingly quashed and set-aside. The matter is remanded
to the Trial Court and the learned Trial Judge shall now decide the suit on its
own merits against both the Respondents/Original Defendants.
Respondent
No.1
may
file
its
written
statement
on
or
The
before
1st December, 2009. The learned Trial Judge shall thereafter frame appropriate
issues and then decide the question as to whether the vehicle in question was
insured with the Respondent No.1 as per the evidence on record. We may
clarify that we have not expressed any opinion in this behalf.
It is for the
learned Trial Judge to decide the said question after the issues are framed and
after giving an opportunity to both the sides to lead evidence in this behalf. On
the basis of the evidence, it is for the Trial Court to decide whether the vehicle
in question was insured with the Respondent No.1 or not. The said question is
accordingly kept open and is to be decided at the time of the trial. The records
and proceedings to be sent to the Trial Court forthwith. The Appeal is
accordingly allowed to the aforesaid extent. There shall be no order as to cost.
9.
It is needless to say that the burden of proof that the vehicle was
insured with the Respondent No.1 primarily lies on the Appellant and the
Appellant is required to prove the said fact. The Respondent No.1 will be at
liberty to lead evidence to prove that the vehicle was not insured. In short the
said question will be decided by the learned Trial Judge as per the evidence
and on the basis of original documents produced by the Respondent No.1.
In view of the disposal of the First Appeal, the Civil Application
10.
No.1863 of 2009 will not survive and therefore, the same is disposed of.
Sd/-
(P. B. MAJMUDAR, J.)
(R. V. MORE, J.)
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