Sunday, 31 July 2016

Whether plaint can be rejected if written statement is filed?

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,

// VERSUS //
Smt. Shantabai wd/o. Shyamsunder

      CORAM     :  A.P.BHANGALE,  J.
      DATE         :  25.6.2015. 
Citation: 2016 (4) ALLMR85 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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