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 (2004) 3 SCC 137
… “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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5540 OF 2016
(Arising out of S.L.P.(C) No. 15474 of 2016)
R. K. ROJA Vs U. S. RAYUDU AND ANOTHER
2. 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.
3. 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.
4. 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 …”.
5. 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 (2004) 3 SCC 137
… “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.
6. 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 (2003) 1 SCC 557
). 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. …”
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. The appeal is disposed of accordingly.
........................................J.
(KURIAN JOSEPH)
......………………………………J.
(ROHINTON FALI NARIMAN)
New Delhi;
July 4, 2016.
Print Page
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 (2004) 3 SCC 137
… “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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5540 OF 2016
(Arising out of S.L.P.(C) No. 15474 of 2016)
R. K. ROJA Vs U. S. RAYUDU AND ANOTHER
2. 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.
3. 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.
4. 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 …”.
5. 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 (2004) 3 SCC 137
… “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.
6. 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 (2003) 1 SCC 557
). 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. …”
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. The appeal is disposed of accordingly.
........................................J.
(KURIAN JOSEPH)
......………………………………J.
(ROHINTON FALI NARIMAN)
New Delhi;
July 4, 2016.
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