Thus, the question which would require adjudication
of facts cannot be dealt with while passing the order under
Order VII, Rule 11 of the Code of Civil Procedure. The
Court is not required to consider the case of the defendants
while the plaint is liable to be rejected upon perusal of
averments thereof, although remedy chosen by the
defendants may be to challenge maintainability of the suit
itself with a prayer to the trial Court to exercise power
under Order VII, Rule 11 of the Code of Civil Procedure.
15. In the ruling in the case of Abdul Gafur and
another vs. State of Uttarakhand and Others reported in
(2008) 10 SCC 97, Hon'ble Supreme Court was considering
Section 9 of the Code of Civil Procedure and held that, in
all types of civil disputes, Courts have disputed jurisdiction
and the law confers on every person an inherent right to
bring a suit of civil nature of one's choice, at one's peril,
howsoever frivolous the claim may be, unless it is barred by
statute. The Apex Court making reference to the case of
Ganga Bai vs. Vijay Kumar, reported in (1974) 2 SCC 393
held that there is an inherent right in every person to bring
a suit of a civil nature and unless the suit is barred by
statute one may, at one's peril, bring a suit of one's choice.
It is no answer to a suit, howsoever frivolous it may be to
claim, that the law confers no such right to sue. A suit for
its maintainability requires no authority of law and it is
enough that no statute bars the suit. Although it is
necessary that plaint in the suit must aver material facts
and upon reading as a whole must disclose cause of action
which can be entertained by Civil Court. Without these
preliminaries, the plaint may be rejected in terms of Order
VII, Rule 11 of the Code of Civil Procedure. However, as
contemplated under Order XIV, Rules 1 and 2 of the Code
of Civil Procedure, unless the plaint is manifestly vexatious
or meritless not disclosing any clear right to suit when
issues are raised in the suit by Written Statement and issues
are framed, it was obligatory for the trial Court to proceed
to hear the parties on merits upon the issues framed to seek
evidence and then to decide the suit on merits as
contemplated under Order XIV, Rules 1 and 2 of the Code.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.734 OF 2014
Prabhudayal s/o. Ramkhilawan Pande, V Smt. Shantabai wd/o. Shyamsunder
CORAM : A.P.BHANGALE, J.
DATE : 25.6.2015.
Citation: 2016 (4) ALLMR 85 Bom
2. Admit. By the consent of learned Counsel for the
respective parties, the appeal is heard finally.
3. Considering the impugned order and submissions on
behalf of the appellant that this appeal can be disposed of
finally at the stage of admission, this Court had directed the
parties to note that this appeal may be disposed of finally at
the stage of admission. Thus, today, submissions are heard
at the bar.
4. This appeal is directed against the order dt.14.8.2014
below Exh. Nos. 1 and 83 in Special Civil Suit No.524 of 2007
passed by 8th Joint Civil Judge (Sr.Dn.), Nagpur. On behalf of
the appellant, it is submitted that the Special Civil Suit was
instituted with prayers for declaration and permanent
injunction as well as compensation against the respondents
(original defendants) in the trial Court. The litigation
between the parties has long past history since the year 1985.
Regular Civil Suit No.492 of 1985 was instituted by one
Ramrao Mane against Ramkhilawan etc. for possession as well
as mesne profit in respect of the suit property described
therein. That suit came to be dismissed on 5.4.1988 and the
trial Court had accepted the claim made by the defendants for
adverse possession in respect of the land in their possession.
Regular Civil Appeal No.183 of 1988 was preferred against the
decree but the appeal was dismissed by the learned 5th
Additional District Judge, Nagpur by Judgment and Order
dt.9.9.1996. The controversy was brought before this Court in
Second Appeal No.161 of 1997. During pendency of that
appeal, parties had entered into compromise whereby they
decided to partition the suit property into four portions i.e. A,
B, C and D. Portion A was allotted to plaintiff Ramrao Mane,
portion B was allotted to Prabhudayal Ramkhilawan Pande
(appellant herein), while portion C was allotted to predecessor
of Shamsunder Pande and portion D was allotted to
Ishwardayal Pande (respondents are legal heirs of said
Shamsunder Pande). Thus, in respect of the alloted portions of
the suit property, the rights were crystalized as above.
However, the present appellant chose to institute Special Civil
Suit No.524 of 2007 against legal representatives of
Shamsunder Pande claiming that he is entitled for
compensation in respect of Mango trees planted by him in the
suit land which went to the share of Shamsunder Pande and
consequent reliefs of declaration as well as permanent
injunction was also prayed. It is not in dispute that, in respect
of Special Civil Suit No.524 of 2007, written statement is filed
on record by the defendants and the issues are also framed.
5. It is under these circumstances that the impugned
order was passed for rejection of plaint under Order VII,
Rule 11 (a) and (d) of the Code of Civil Procedure. The
impugned order which runs into more than ten pages refers
to the nature of the suit that it is for compensation,
declaration and permanent injunction against the
defendants. The defendants had already filed Written
Statement stating therein that they wanted to raise
objection as to maintainability of the suit on the ground of
principle of estoppel and cause of action on the ground that
previous matter was compromised in Second Appeal
No.161 of 1997 in the High Court which was Second
Appeal filed by Ramrao Mane. The compromise was
recorded under Order XXIII, Rule 23 of the Code of Civil
Procedure which was also referred to in the Written
Statement. It appears from the reasons recorded by the
learned Judge that the Written Statement filed by the
defendants was referred to; as also the contention that, in
the Second Appeal, the matter was earlier compromised in
the High Court, pursuant to which the suit property was
mutated and the parties were placed in possession of their
respective allotments. The contention of plaintiff seeking
declaration about mango trees standing in the land allotted
to the defendants also appears to have been referred to by
the learned Judge who rejected the plaint. The learned
Judge in para 11 of the impugned order observes thus :
“ After perusing all the documents filed, copies of
various orders and the orders passed below Exhs.15
and 39, here it is clear that application below Exh.15
is filed for rejection of plaint as the suit is not
maintainable on the ground that the claim of the
plaintiff in the present suit is for claiming restraining
order against these defendants from entering into the
using the suit land “
6. Thus, it appears that the learned Judge travelled
beyond the averments in the plaint in Special Civil Suit
No.524 of 2007 before passing the impugned order making
reference to all documents, copies of various orders and
orders passed in the past including those passed in previous
suit, appeal, Second Appeal and compromise application.
The learned Judge mentioned in para no.17 of the order
that he considered the discussions, submissions, contents of
compromise decree and contents of plaint and prayer and
cause of action for filing the suit and observed that “the
plaintiff's claim is barred by law as in the previous suit, it is
clearly adjudicated and decided on merits. The learned
Judge decided to reject the plaint by passing order below
Exh.1 in the suit.
7. Learned Counsel appearing on behalf of the appellant
submitted that the plaint could not have been rejected
under Order VII, Rule 11 (a) and (d) of the Code of Civil
Procedure in view of the past history of the litigation
between the parties and the fact that in Special Civil Suit
No.524 of 2007, written submissions were filed by the
defendants and the issues were also framed. The learned
trial Judge ought to have proceeded to decide the suit on
the basis of evidence that may be adduced by the parties
instead of rejecting plaint, for which no amount of evidence
need to be looked in except bare perusal of plaint.
8. Mr.P.P.Kothari, learned Counsel for the respondents,
however, supported the impugned order on the ground that
the suit was not maintainable as the controversy between
the parties was compromised in Second Appeal No.161 of
1997 and u/s.24 of the Maharashtra Land Revenue Code,
the trees which were standing on the suit land became
property of the respondents herein and compensation could
not have been claimed in respect of the standing trees on
the said land which became vested in the respondents as
owners thereof.
9. Learned Counsel for the respondents submitted with
reference to the ruling in the case of I.T.C. Ltd. vs. Debts
Recovery Appellate Tribunal and others, reported in AIR
1998 SC 634 and placing reliance upon the observations
made by Hon'ble Supreme Court that merely because issues
have been framed, the matter need not necessarily go to the
trial. The Apex Court made reference to the case of Azar
Hussain vs. Rajiv Gandhi reported in AIR 1986 SC 1253 to
observe that the whole purpose of conferment of such
powers (to reject the plaint) is to ensure that a litigation
which is meaningless and bound to prove abortive should
not be permitted to occupy time of the Court. In that
context, the Supreme Court held that the fact that the
issues have been framed in the suit cannot come in the way
of consideration of the application under Order VII, Rule 11
of the Code of Civil Procedure. It is true that, in a given
case when there is no valid cause of action absolutely upon
reading the averments in the plaint, the plaint is liable to be
rejected under Order VII, Rule 11 of the Civil Procedure
Code.
10. Reference is also made to the ruling in the case of
Gangaram Balkrishna Sawant .vs. Vasudeo Dattatraya
Kirloskar reported in The Bombay Law Reporter (VOL
XXV) (1922) page 268 which is a ruling in respect of suit
for partition. In that case, the original plaintiff appears to
have alienated his business and the appellant substituting
him was really a predecessor of litigation. Thus, the appeal
was dismissed in respect of the suit for partition.
11. Learned Counsel for respondent argued in respect of
principle of res judicata and submitted that the suit is not
maintainable considering the principles of res judiciata. It
ought to have been dismissed.
12. Reference is also made to the case of Food
Corporation of India .vs. Prashant Pandurang Ramteke
and Others reported in 2005(4) Mh.L.J. 742 to submit that
the principles of res judicata are attracted when the parties
are same and the matter was decided finally between them
on merits. In the facts and circumstances, in Writ Petition
1696 of 2005, decided on 6.7.2005, this Court had
dismissed the petition filed to quash the order in respect of
failure report submitted by Conciliation Officer to the
appropriate Government.
13. In my opinion, when the Written Statement is filed
and issues are also framed, the question whether the
principle of res judicata is attracted or not could be a
question to be decided on merits in the suit and not merely
on the basis of bare perusal of averments in the plaint in
the suit. Particularly when, in a given suit when the trial
Court has received Written Statement and it proceeds to
frame issues on the basis of pleadings before it, then
propriety demands that the trial Court ought to proceed
further with the suit on merits so as to decide all the issues
framed unless any issue as to maintainability of the suit is
required to be decided first before proceeding further.
Under Order 14, when the issues are settled and
determined in the suit at the first hearing of the suit after
reading the plaint and Written Statement and hearing the
parties, the Court is required to pronounce the Judgment
on all issues. Under Order XIV, Rule 2 of the Code of Civil
Procedure, it is obligatory on the trial Court to pronounce
Judgment on all the issues. Notwithstanding the fact that
the suit may be disposed of on the basis of any preliminary
issue relating to jurisdiction of the Court to entertain the
suit or bar to the suit created by any law which is in force
for the time being. Under Order VII, Rule 11, the Code of
Civil Procedure, the provision enabling the Court to reject
the plaint either under clause (a) or (d) is provided. The
Court need not refer to any amount of evidence as merely
on the basis of perusal of the plaint, the plaint may be
rejected. The legal position in this regard that Order VII,
Rule 11 of the Code of Civil Procedure and Order XIV, Rule
2 of the Code of Civil Procedure operate at different stages
of the suit and scope of the provision was explained by
Hon'ble Supreme Court in the case of Kamla and Ors. vs.
K.T.Eshwara and Others reported in AIR 2008 SC 3174.
In para nos. 15 and 16, it is observed as under :
“15. Order VII, Rule 11(d) of the Code has limited
application. It must be shown that the suit is barred
under any law. Such a conclusion must be drawn from
the averments made in the plaint. Different clauses in
Order VII, Rule 11, in our opinion, should not be mixed
up. Whereas in a given case, an application for rejection
of the plaint may be filed on more than one ground
specified in various subclauses thereof, a clear finding to
that effect must be arrived at. What would be relevant
for invoking clause (d) of Order VII, Rule 11 of the Code
is the averments made in the plaint. For that purpose,
there cannot be any addition or subtraction. Absence of
jurisdiction on the part of a court can be invoked at
different stages and under different provisions of the
Code. Order VII, Rule 11 of the Code is one, Order XIV,
Rule 2 is another. “
“16. For the purpose of invoking Order VII, Rule 11(d)
of the Code, no amount of evidence can be looked into.
The issues on merit of the matter which may arise
between the parties would not be within the realm of the
court at that stage. All issues shall not be the subject
matter of an order under the said provision.”
In para 21, it was observed thus :
“We may proceed on the assumption that the shares
of the parties were defined. There was a partition
amongst the parties in the sense that they could
transfer their undivided share. What would,
however, be the effect of a partition suit which had
not been taken to its logical conclusion by getting
the properties partitioned by metes and bounds is a
question which, in our opinion, cannot be gone into
in a proceeding under Order VII, Rule 11(d) of the
Code. Whether any property is available for
partition is itself a question of fact.
14. Thus, the question which would require adjudication
of facts cannot be dealt with while passing the order under
Order VII, Rule 11 of the Code of Civil Procedure. The
Court is not required to consider the case of the defendants
while the plaint is liable to be rejected upon perusal of
averments thereof, although remedy chosen by the
defendants may be to challenge maintainability of the suit
itself with a prayer to the trial Court to exercise power
under Order VII, Rule 11 of the Code of Civil Procedure.
15. In the ruling in the case of Abdul Gafur and
another vs. State of Uttarakhand and Others reported in
(2008) 10 SCC 97, Hon'ble Supreme Court was considering
Section 9 of the Code of Civil Procedure and held that, in
all types of civil disputes, Courts have disputed jurisdiction
and the law confers on every person an inherent right to
bring a suit of civil nature of one's choice, at one's peril,
howsoever frivolous the claim may be, unless it is barred by
statute. The Apex Court making reference to the case of
Ganga Bai vs. Vijay Kumar, reported in (1974) 2 SCC 393
held that there is an inherent right in every person to bring
a suit of a civil nature and unless the suit is barred by
statute one may, at one's peril, bring a suit of one's choice.
It is no answer to a suit, howsoever frivolous it may be to
claim, that the law confers no such right to sue. A suit for
its maintainability requires no authority of law and it is
enough that no statute bars the suit. Although it is
necessary that plaint in the suit must aver material facts
and upon reading as a whole must disclose cause of action
which can be entertained by Civil Court. Without these
preliminaries, the plaint may be rejected in terms of Order
VII, Rule 11 of the Code of Civil Procedure. However, as
contemplated under Order XIV, Rules 1 and 2 of the Code
of Civil Procedure, unless the plaint is manifestly vexatious
or meritless not disclosing any clear right to suit when
issues are raised in the suit by Written Statement and issues
are framed, it was obligatory for the trial Court to proceed
to hear the parties on merits upon the issues framed to seek
evidence and then to decide the suit on merits as
contemplated under Order XIV, Rules 1 and 2 of the Code.
16. The question sought to be argued on behalf of the
respondents is that the defendants would have right to trees
standing in the land allowed to them in view of Section 25
of the Maharashtra Land Revenue Code. This is again a
mixed question of law and fact which is required to be
decided by the trial Court on merits as the Court will have
to consider whether pursuant to allotments made in the
compromise, right to trees was also vested in the allottee by
virtue of Section 25 of the Maharashtra land Revenue Code
or whether the parties had compromised otherwise in
respect of standing trees.
17. While examining the impugned order passed under
Order VII, Rule 11 (a) and (d) of the Code, I need not dwell
upon the issue raised as to maintainability of the suit as I
have observed that once the issues are framed on the basis
of Written Statement filed by the defendants, it is
obligatory for the trial Judge to hear the parties, receive
evidence, if any and then to pronounce the Judgment on all
issues notwithstanding the issue of maintainability raised
by the parties in respect of the suit. Prima facie, on perusal
itself, it is clear that the provisions under Order VII, Rule
11 of the Code of Civil Procedure and Order XIV therein
operate at different stages of the suit and although trial
Court has power of rejecting the plaint at any stage of the
suit, the principles of law which are required to be
considered by the Court in respect of decision to be taken
under Order VII, Rule 11 of the Code of Civil Procedure are
different than the principle of law which the trial Court
must abide by after having framed the issues on the basis of
Written Statement. Order VII, Rule 11 of the Code of Civil
Procedure operates when the Court upon perusal of the
plaint is satisfied that the plaint shall be rejected for nondisclosure
of cause of action or if it is deliberately under
valued or improperly valued for the purposes of payment of
stamp duty or when it is barred by any law on the basis of
statement made in the plaint itself or when plaintiff fails to
comply with the directions of the Court in the matter of
filing copies of the plaint or correction of valuation, court
fees etc. In that case, upon perusal of the plaint itself,
without looking into any evidence, examining merits of the
matter, the Court may reject the plaint. Even, in that case,
Order VII, Rule 13 of the Code of Civil Procedure provides
that rejection of plaint does not preclude presentation of
fresh plaint in respect of the same cause of action. Thus,
right to file suit is inherent in the plaintiff and when parties
have agitated the issues pursuant to their pleadings, Order
XIV would make it obligatory for the trial Court to
pronounce Judgment on all issues and to decide the suit on
merits if so necessary on all issues. Thus, having examined
this legal position and reading the impugned order, it must
be concluded that the learned Judge has committed error of
law in the facts and circumstances to reject the plaint under
Order VII, Rule 11 of the Code of Civil Procedure. Hence,
the Order.
The impugned order is not sustainable. It is quashed
and set aside.
Parties are directed to approach the trial Court on
20.7.2015. The trial Court to proceed further with the suit
accordingly.
The learned Counsel for the respondents prays to
keep this order in abeyance. The request is strongly
objected by the appellant in view of the order passed by this
Court today. In my opinion, since, prima facie, an error is
apparent on the part of the learned trial Judge and having
considered the legal position in respect of Order VII, Rule
11 as well as Order IX, Rules 1 and 2 of the Code of Civil
Procedure. By detailed Judgment legal position is explained
and it need not be kept in abeyance. Moreover, parties will
have an opportunity to agitate their respective grievance in
the trial Court. Hence, the prayer for stay is rejected.
Print Page
of facts cannot be dealt with while passing the order under
Order VII, Rule 11 of the Code of Civil Procedure. The
Court is not required to consider the case of the defendants
while the plaint is liable to be rejected upon perusal of
averments thereof, although remedy chosen by the
defendants may be to challenge maintainability of the suit
itself with a prayer to the trial Court to exercise power
under Order VII, Rule 11 of the Code of Civil Procedure.
15. In the ruling in the case of Abdul Gafur and
another vs. State of Uttarakhand and Others reported in
(2008) 10 SCC 97, Hon'ble Supreme Court was considering
Section 9 of the Code of Civil Procedure and held that, in
all types of civil disputes, Courts have disputed jurisdiction
and the law confers on every person an inherent right to
bring a suit of civil nature of one's choice, at one's peril,
howsoever frivolous the claim may be, unless it is barred by
statute. The Apex Court making reference to the case of
Ganga Bai vs. Vijay Kumar, reported in (1974) 2 SCC 393
held that there is an inherent right in every person to bring
a suit of a civil nature and unless the suit is barred by
statute one may, at one's peril, bring a suit of one's choice.
It is no answer to a suit, howsoever frivolous it may be to
claim, that the law confers no such right to sue. A suit for
its maintainability requires no authority of law and it is
enough that no statute bars the suit. Although it is
necessary that plaint in the suit must aver material facts
and upon reading as a whole must disclose cause of action
which can be entertained by Civil Court. Without these
preliminaries, the plaint may be rejected in terms of Order
VII, Rule 11 of the Code of Civil Procedure. However, as
contemplated under Order XIV, Rules 1 and 2 of the Code
of Civil Procedure, unless the plaint is manifestly vexatious
or meritless not disclosing any clear right to suit when
issues are raised in the suit by Written Statement and issues
are framed, it was obligatory for the trial Court to proceed
to hear the parties on merits upon the issues framed to seek
evidence and then to decide the suit on merits as
contemplated under Order XIV, Rules 1 and 2 of the Code.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.734 OF 2014
Prabhudayal s/o. Ramkhilawan Pande, V Smt. Shantabai wd/o. Shyamsunder
CORAM : A.P.BHANGALE, J.
DATE : 25.6.2015.
Citation: 2016 (4) ALLMR 85 Bom
2. Admit. By the consent of learned Counsel for the
respective parties, the appeal is heard finally.
3. Considering the impugned order and submissions on
behalf of the appellant that this appeal can be disposed of
finally at the stage of admission, this Court had directed the
parties to note that this appeal may be disposed of finally at
the stage of admission. Thus, today, submissions are heard
at the bar.
4. This appeal is directed against the order dt.14.8.2014
below Exh. Nos. 1 and 83 in Special Civil Suit No.524 of 2007
passed by 8th Joint Civil Judge (Sr.Dn.), Nagpur. On behalf of
the appellant, it is submitted that the Special Civil Suit was
instituted with prayers for declaration and permanent
injunction as well as compensation against the respondents
(original defendants) in the trial Court. The litigation
between the parties has long past history since the year 1985.
Regular Civil Suit No.492 of 1985 was instituted by one
Ramrao Mane against Ramkhilawan etc. for possession as well
as mesne profit in respect of the suit property described
therein. That suit came to be dismissed on 5.4.1988 and the
trial Court had accepted the claim made by the defendants for
adverse possession in respect of the land in their possession.
Regular Civil Appeal No.183 of 1988 was preferred against the
decree but the appeal was dismissed by the learned 5th
Additional District Judge, Nagpur by Judgment and Order
dt.9.9.1996. The controversy was brought before this Court in
Second Appeal No.161 of 1997. During pendency of that
appeal, parties had entered into compromise whereby they
decided to partition the suit property into four portions i.e. A,
B, C and D. Portion A was allotted to plaintiff Ramrao Mane,
portion B was allotted to Prabhudayal Ramkhilawan Pande
(appellant herein), while portion C was allotted to predecessor
of Shamsunder Pande and portion D was allotted to
Ishwardayal Pande (respondents are legal heirs of said
Shamsunder Pande). Thus, in respect of the alloted portions of
the suit property, the rights were crystalized as above.
However, the present appellant chose to institute Special Civil
Suit No.524 of 2007 against legal representatives of
Shamsunder Pande claiming that he is entitled for
compensation in respect of Mango trees planted by him in the
suit land which went to the share of Shamsunder Pande and
consequent reliefs of declaration as well as permanent
injunction was also prayed. It is not in dispute that, in respect
of Special Civil Suit No.524 of 2007, written statement is filed
on record by the defendants and the issues are also framed.
5. It is under these circumstances that the impugned
order was passed for rejection of plaint under Order VII,
Rule 11 (a) and (d) of the Code of Civil Procedure. The
impugned order which runs into more than ten pages refers
to the nature of the suit that it is for compensation,
declaration and permanent injunction against the
defendants. The defendants had already filed Written
Statement stating therein that they wanted to raise
objection as to maintainability of the suit on the ground of
principle of estoppel and cause of action on the ground that
previous matter was compromised in Second Appeal
No.161 of 1997 in the High Court which was Second
Appeal filed by Ramrao Mane. The compromise was
recorded under Order XXIII, Rule 23 of the Code of Civil
Procedure which was also referred to in the Written
Statement. It appears from the reasons recorded by the
learned Judge that the Written Statement filed by the
defendants was referred to; as also the contention that, in
the Second Appeal, the matter was earlier compromised in
the High Court, pursuant to which the suit property was
mutated and the parties were placed in possession of their
respective allotments. The contention of plaintiff seeking
declaration about mango trees standing in the land allotted
to the defendants also appears to have been referred to by
the learned Judge who rejected the plaint. The learned
Judge in para 11 of the impugned order observes thus :
“ After perusing all the documents filed, copies of
various orders and the orders passed below Exhs.15
and 39, here it is clear that application below Exh.15
is filed for rejection of plaint as the suit is not
maintainable on the ground that the claim of the
plaintiff in the present suit is for claiming restraining
order against these defendants from entering into the
using the suit land “
6. Thus, it appears that the learned Judge travelled
beyond the averments in the plaint in Special Civil Suit
No.524 of 2007 before passing the impugned order making
reference to all documents, copies of various orders and
orders passed in the past including those passed in previous
suit, appeal, Second Appeal and compromise application.
The learned Judge mentioned in para no.17 of the order
that he considered the discussions, submissions, contents of
compromise decree and contents of plaint and prayer and
cause of action for filing the suit and observed that “the
plaintiff's claim is barred by law as in the previous suit, it is
clearly adjudicated and decided on merits. The learned
Judge decided to reject the plaint by passing order below
Exh.1 in the suit.
7. Learned Counsel appearing on behalf of the appellant
submitted that the plaint could not have been rejected
under Order VII, Rule 11 (a) and (d) of the Code of Civil
Procedure in view of the past history of the litigation
between the parties and the fact that in Special Civil Suit
No.524 of 2007, written submissions were filed by the
defendants and the issues were also framed. The learned
trial Judge ought to have proceeded to decide the suit on
the basis of evidence that may be adduced by the parties
instead of rejecting plaint, for which no amount of evidence
need to be looked in except bare perusal of plaint.
8. Mr.P.P.Kothari, learned Counsel for the respondents,
however, supported the impugned order on the ground that
the suit was not maintainable as the controversy between
the parties was compromised in Second Appeal No.161 of
1997 and u/s.24 of the Maharashtra Land Revenue Code,
the trees which were standing on the suit land became
property of the respondents herein and compensation could
not have been claimed in respect of the standing trees on
the said land which became vested in the respondents as
owners thereof.
9. Learned Counsel for the respondents submitted with
reference to the ruling in the case of I.T.C. Ltd. vs. Debts
Recovery Appellate Tribunal and others, reported in AIR
1998 SC 634 and placing reliance upon the observations
made by Hon'ble Supreme Court that merely because issues
have been framed, the matter need not necessarily go to the
trial. The Apex Court made reference to the case of Azar
Hussain vs. Rajiv Gandhi reported in AIR 1986 SC 1253 to
observe that the whole purpose of conferment of such
powers (to reject the plaint) is to ensure that a litigation
which is meaningless and bound to prove abortive should
not be permitted to occupy time of the Court. In that
context, the Supreme Court held that the fact that the
issues have been framed in the suit cannot come in the way
of consideration of the application under Order VII, Rule 11
of the Code of Civil Procedure. It is true that, in a given
case when there is no valid cause of action absolutely upon
reading the averments in the plaint, the plaint is liable to be
rejected under Order VII, Rule 11 of the Civil Procedure
Code.
10. Reference is also made to the ruling in the case of
Gangaram Balkrishna Sawant .vs. Vasudeo Dattatraya
Kirloskar reported in The Bombay Law Reporter (VOL
XXV) (1922) page 268 which is a ruling in respect of suit
for partition. In that case, the original plaintiff appears to
have alienated his business and the appellant substituting
him was really a predecessor of litigation. Thus, the appeal
was dismissed in respect of the suit for partition.
11. Learned Counsel for respondent argued in respect of
principle of res judicata and submitted that the suit is not
maintainable considering the principles of res judiciata. It
ought to have been dismissed.
12. Reference is also made to the case of Food
Corporation of India .vs. Prashant Pandurang Ramteke
and Others reported in 2005(4) Mh.L.J. 742 to submit that
the principles of res judicata are attracted when the parties
are same and the matter was decided finally between them
on merits. In the facts and circumstances, in Writ Petition
1696 of 2005, decided on 6.7.2005, this Court had
dismissed the petition filed to quash the order in respect of
failure report submitted by Conciliation Officer to the
appropriate Government.
13. In my opinion, when the Written Statement is filed
and issues are also framed, the question whether the
principle of res judicata is attracted or not could be a
question to be decided on merits in the suit and not merely
on the basis of bare perusal of averments in the plaint in
the suit. Particularly when, in a given suit when the trial
Court has received Written Statement and it proceeds to
frame issues on the basis of pleadings before it, then
propriety demands that the trial Court ought to proceed
further with the suit on merits so as to decide all the issues
framed unless any issue as to maintainability of the suit is
required to be decided first before proceeding further.
Under Order 14, when the issues are settled and
determined in the suit at the first hearing of the suit after
reading the plaint and Written Statement and hearing the
parties, the Court is required to pronounce the Judgment
on all issues. Under Order XIV, Rule 2 of the Code of Civil
Procedure, it is obligatory on the trial Court to pronounce
Judgment on all the issues. Notwithstanding the fact that
the suit may be disposed of on the basis of any preliminary
issue relating to jurisdiction of the Court to entertain the
suit or bar to the suit created by any law which is in force
for the time being. Under Order VII, Rule 11, the Code of
Civil Procedure, the provision enabling the Court to reject
the plaint either under clause (a) or (d) is provided. The
Court need not refer to any amount of evidence as merely
on the basis of perusal of the plaint, the plaint may be
rejected. The legal position in this regard that Order VII,
Rule 11 of the Code of Civil Procedure and Order XIV, Rule
2 of the Code of Civil Procedure operate at different stages
of the suit and scope of the provision was explained by
Hon'ble Supreme Court in the case of Kamla and Ors. vs.
K.T.Eshwara and Others reported in AIR 2008 SC 3174.
In para nos. 15 and 16, it is observed as under :
“15. Order VII, Rule 11(d) of the Code has limited
application. It must be shown that the suit is barred
under any law. Such a conclusion must be drawn from
the averments made in the plaint. Different clauses in
Order VII, Rule 11, in our opinion, should not be mixed
up. Whereas in a given case, an application for rejection
of the plaint may be filed on more than one ground
specified in various subclauses thereof, a clear finding to
that effect must be arrived at. What would be relevant
for invoking clause (d) of Order VII, Rule 11 of the Code
is the averments made in the plaint. For that purpose,
there cannot be any addition or subtraction. Absence of
jurisdiction on the part of a court can be invoked at
different stages and under different provisions of the
Code. Order VII, Rule 11 of the Code is one, Order XIV,
Rule 2 is another. “
“16. For the purpose of invoking Order VII, Rule 11(d)
of the Code, no amount of evidence can be looked into.
The issues on merit of the matter which may arise
between the parties would not be within the realm of the
court at that stage. All issues shall not be the subject
matter of an order under the said provision.”
In para 21, it was observed thus :
“We may proceed on the assumption that the shares
of the parties were defined. There was a partition
amongst the parties in the sense that they could
transfer their undivided share. What would,
however, be the effect of a partition suit which had
not been taken to its logical conclusion by getting
the properties partitioned by metes and bounds is a
question which, in our opinion, cannot be gone into
in a proceeding under Order VII, Rule 11(d) of the
Code. Whether any property is available for
partition is itself a question of fact.
14. Thus, the question which would require adjudication
of facts cannot be dealt with while passing the order under
Order VII, Rule 11 of the Code of Civil Procedure. The
Court is not required to consider the case of the defendants
while the plaint is liable to be rejected upon perusal of
averments thereof, although remedy chosen by the
defendants may be to challenge maintainability of the suit
itself with a prayer to the trial Court to exercise power
under Order VII, Rule 11 of the Code of Civil Procedure.
15. In the ruling in the case of Abdul Gafur and
another vs. State of Uttarakhand and Others reported in
(2008) 10 SCC 97, Hon'ble Supreme Court was considering
Section 9 of the Code of Civil Procedure and held that, in
all types of civil disputes, Courts have disputed jurisdiction
and the law confers on every person an inherent right to
bring a suit of civil nature of one's choice, at one's peril,
howsoever frivolous the claim may be, unless it is barred by
statute. The Apex Court making reference to the case of
Ganga Bai vs. Vijay Kumar, reported in (1974) 2 SCC 393
held that there is an inherent right in every person to bring
a suit of a civil nature and unless the suit is barred by
statute one may, at one's peril, bring a suit of one's choice.
It is no answer to a suit, howsoever frivolous it may be to
claim, that the law confers no such right to sue. A suit for
its maintainability requires no authority of law and it is
enough that no statute bars the suit. Although it is
necessary that plaint in the suit must aver material facts
and upon reading as a whole must disclose cause of action
which can be entertained by Civil Court. Without these
preliminaries, the plaint may be rejected in terms of Order
VII, Rule 11 of the Code of Civil Procedure. However, as
contemplated under Order XIV, Rules 1 and 2 of the Code
of Civil Procedure, unless the plaint is manifestly vexatious
or meritless not disclosing any clear right to suit when
issues are raised in the suit by Written Statement and issues
are framed, it was obligatory for the trial Court to proceed
to hear the parties on merits upon the issues framed to seek
evidence and then to decide the suit on merits as
contemplated under Order XIV, Rules 1 and 2 of the Code.
16. The question sought to be argued on behalf of the
respondents is that the defendants would have right to trees
standing in the land allowed to them in view of Section 25
of the Maharashtra Land Revenue Code. This is again a
mixed question of law and fact which is required to be
decided by the trial Court on merits as the Court will have
to consider whether pursuant to allotments made in the
compromise, right to trees was also vested in the allottee by
virtue of Section 25 of the Maharashtra land Revenue Code
or whether the parties had compromised otherwise in
respect of standing trees.
17. While examining the impugned order passed under
Order VII, Rule 11 (a) and (d) of the Code, I need not dwell
upon the issue raised as to maintainability of the suit as I
have observed that once the issues are framed on the basis
of Written Statement filed by the defendants, it is
obligatory for the trial Judge to hear the parties, receive
evidence, if any and then to pronounce the Judgment on all
issues notwithstanding the issue of maintainability raised
by the parties in respect of the suit. Prima facie, on perusal
itself, it is clear that the provisions under Order VII, Rule
11 of the Code of Civil Procedure and Order XIV therein
operate at different stages of the suit and although trial
Court has power of rejecting the plaint at any stage of the
suit, the principles of law which are required to be
considered by the Court in respect of decision to be taken
under Order VII, Rule 11 of the Code of Civil Procedure are
different than the principle of law which the trial Court
must abide by after having framed the issues on the basis of
Written Statement. Order VII, Rule 11 of the Code of Civil
Procedure operates when the Court upon perusal of the
plaint is satisfied that the plaint shall be rejected for nondisclosure
of cause of action or if it is deliberately under
valued or improperly valued for the purposes of payment of
stamp duty or when it is barred by any law on the basis of
statement made in the plaint itself or when plaintiff fails to
comply with the directions of the Court in the matter of
filing copies of the plaint or correction of valuation, court
fees etc. In that case, upon perusal of the plaint itself,
without looking into any evidence, examining merits of the
matter, the Court may reject the plaint. Even, in that case,
Order VII, Rule 13 of the Code of Civil Procedure provides
that rejection of plaint does not preclude presentation of
fresh plaint in respect of the same cause of action. Thus,
right to file suit is inherent in the plaintiff and when parties
have agitated the issues pursuant to their pleadings, Order
XIV would make it obligatory for the trial Court to
pronounce Judgment on all issues and to decide the suit on
merits if so necessary on all issues. Thus, having examined
this legal position and reading the impugned order, it must
be concluded that the learned Judge has committed error of
law in the facts and circumstances to reject the plaint under
Order VII, Rule 11 of the Code of Civil Procedure. Hence,
the Order.
The impugned order is not sustainable. It is quashed
and set aside.
Parties are directed to approach the trial Court on
20.7.2015. The trial Court to proceed further with the suit
accordingly.
The learned Counsel for the respondents prays to
keep this order in abeyance. The request is strongly
objected by the appellant in view of the order passed by this
Court today. In my opinion, since, prima facie, an error is
apparent on the part of the learned trial Judge and having
considered the legal position in respect of Order VII, Rule
11 as well as Order IX, Rules 1 and 2 of the Code of Civil
Procedure. By detailed Judgment legal position is explained
and it need not be kept in abeyance. Moreover, parties will
have an opportunity to agitate their respective grievance in
the trial Court. Hence, the prayer for stay is rejected.
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