Saturday, 13 August 2016

Whether court can direct filing of written statement without deciding application for rejection of plaint?

In Saleem Bhai case (supra), this Court has also held that …  “A  direction
to file the written statement without deciding the application  under  Order
VII Rule 11 cannot but be a procedural irregularity  touching  the  exercise
of jurisdiction of the trial court.”  However, we may  hasten  to  add  that
the liberty to file an application for rejection under Order VII Rule 11  of
the CPC cannot be made as a ruse for  retrieving  the  lost  opportunity  to
file the written statement.
Reportable
Supreme Court of India
R K Roja vs U S Rayudu & Anr on 4 July, 2016
Bench: Kurian Joseph, Rohinton Fali Nariman
            
Citation:AIR 2016 SC 3282
The appellant has two grievances - (i) The Court  has  not  disposed  of  an
application filed by her under Order VII  Rule  11  of  The  Code  of  Civil
Procedure, 1908 (hereinafter referred to as ‘the  Code’)  for  rejection  of
the Election Petition and the same has  been  posted  along  with  the  main
petition and (ii) She is denied an opportunity to file written statement.
The first respondent herein  filed  an  Election  Petition  challenging  the
election  of  the  appellant  to  the  289  Nagiri  Assembly   Constituency.
Appellant was declared elected  on  16.05.2014.  The  election  petition  is
dated 30.06.2014. On  receipt  of  notice  in  the  Election  Petition,  the
appellant filed Annexure-P/4-application  for  rejection  of  the  Petition,
under Order VII Rule 11 of the  CPC  by  way  of  a  counter  affidavit.  It
appears that the court declined to consider the  same  on  the  ground  that
there was no formal application and hence proceeded with the trial. At  that
stage, appellant filed Annexure-P/5-formal application for rejection of  the
Election Petition on the ground that the Election Petition did not  disclose
any cause of action. That  application  as  per  the  impugned  order  dated
27.04.2016 was posted along with the main petition, and thus, the appeal.
The High Court has taken the view that  the  same  “was  not  filed  at  the
earliest opportunity” and that appellant was  not  diligent  in  prosecuting
the  application.  Therefore,  the  court  took  the  view  that   …   “this
application filed by the first respondent shall be decided at  the  time  of
final hearing …”.
We are afraid that the stand taken by the High Court in the  impugned  order
cannot be appreciated. An application under Order VII Rule  11  of  the  CPC
can be filed at any stage, as held by this Court in Sopan Sukhdeo Sable  and
others v.  Assistant Charity Commissioner and others[1] … “The  trial  court
can exercise the power at any stage of the suit  –  before  registering  the
plaint or after issuing summons to the defendant  at  any  time  before  the
conclusion of the trial. …”. The only restriction is that the  consideration
of the application  for  rejection  should  not  be  on  the  basis  of  the
allegations made by the defendant in his written statement or on  the  basis
of the allegations in the application  for  rejection  of  the  plaint.  The
court has to consider only the plaint as a whole, and in  case,  the  entire
plaint comes under the situations covered by Order VII Rule 11  (a)  to  (f)
of the CPC, the same has to be rejected.
Once an application is filed under Order VII Rule 11 of the CPC,  the  court
has to dispose of the same before proceeding with the  trial.  There  is  no
point or sense in proceeding with the trial of the case, in case the  plaint
(Election Petition in the present case)  is  only  to  be  rejected  at  the
threshold. Therefore, the defendant is entitled to file the application  for
rejection before filing his written statement. In case, the  application  is
rejected,  the  defendant  is  entitled  to  file  his   written   statement
thereafter  (See  Saleem  Bhai  and  others  v.  State  of  Maharashtra  and
others[2]). But once an application for rejection is filed,  the  court  has
to dispose of the same before proceeding with  the  trial  court.  To  quote
relevant portion from paragraph-20 of Sopan Sukhdeo Sable case (supra):

“20. … Rule 11 of Order 7 lays down an independent remedy made available  to
the  defendant  to  challenge  the  maintainability  of  the  suit   itself,
irrespective of his right to contest the same on merits. The law  ostensibly
does not contemplate at any stage when the objections  can  be  raised,  and
also does not say in express terms about the filing of a written  statement.
Instead, the word “shall” is used, clearly implying thereby that it casts  a
duty on the court to perform its obligations in rejecting  the  plaint  when
the same is hit by any of the infirmities provided in the  four  clauses  of
Rule 11, even without intervention of the defendant. …”

 In Saleem Bhai case (supra), this Court has also held that …  “A  direction
to file the written statement without deciding the application  under  Order
VII Rule 11 cannot but be a procedural irregularity  touching  the  exercise
of jurisdiction of the trial court.”  However, we may  hasten  to  add  that
the liberty to file an application for rejection under Order VII Rule 11  of
the CPC cannot be made as a ruse for  retrieving  the  lost  opportunity  to
file the written statement.
Apparently, in the present case,  it  is  seen  that  Annexure-P/4-Affidavit
dated 15.03.2015, with a prayer … “to dismiss the present Election  Petition
under Order VII Rule 11 of the CPC…”, was filed within thirty  days  of  the
receipt of the summons in the Election Petition. However, the court was  not
inclined to consider the same in the absence of a  formal  application,  and
thus, Annexure-P/5-Application No.  E.A.  No.  222  of  2016  was  filed  on
22.02.2016 leading to  the  impugned  order,  posting  the  application  for
consideration at the time of final hearing.
The procedure adopted by the court  is  not  warranted  under  law.  Without
disposing of an application under Order VII Rule 11 of the  CPC,  the  court
cannot proceed with the trial. In that view  of  the  matter,  the  impugned
order is only to be set aside. Ordered accordingly.
However, the concern expressed by the High Court with regard to the  alleged
attempt on the part of the appellant for delaying the trial of the  Election
Petition cannot be brushed aside.  Therefore,  we  have  heard  the  learned
Senior Counsel appearing for the appellant on the  application  under  Order
VII Rule 11 of the CPC. We are satisfied that the said Application does  not
come within the purview of any of the situations under  Order  VII  Rule  11
(a) to (f) of the CPC.  Therefore,  the  application  is  rejected.  In  the
peculiar facts of this case which we have narrated above, the  appellant  is
given an opportunity to file written  statement  in  the  Election  Petition
within two weeks from today.
Since the Election Petition has been pending before  the  High  Court  since
2014, we request the High Court to dispose of the same  before  the  end  of
this year.
The appeal is disposed of accordingly.




                                  ........................................J.
    (KURIAN JOSEPH)





                                                        ......………………………………J.
(ROHINTON FALI NARIMAN)
New Delhi;
July 4, 2016.
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[1] (2004) 3 SCC 137 [2] (2003) 1 SCC 557
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REPORTABLE
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