MANU/SC/0751/2016

Equivalent Citation: 2016(165)AIC 150, AIR2016SC 3282, 2016(3)AJR712, 2016(5)ALD18, 2016(5)ALLMR446, 2016 (118) ALR 479, 2016(4)ALT62,
2017 3 AWC 2572SC , 2016(3)BLJ158, 2016(5)BomC R487, 2016 (3) C C C 120 , 2016(3)C DR729(SC ), 2016(4)C TC 544, 2016(II)C LR(SC )389,
2016/INSC /491, 2016(4)J.L.J.R.1, 2017-1-LW843, 2016(II)OLR606, 2016(4)PLJR103, 2016(3)RC R(C ivil)810, 2016 133 RD444, 2016(6)SC ALE729,
(2016)14SC C 275, 2016 (6) SC J 547, [2016]3SC R221, 2016(3)UC 2181, 2016 (4) WLN 46 (SC )

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5540 of 2016 (Arising out of S.L.P. (C) No. 15474 of 2016)
Decided On: 04.07.2016
Appellants: R.K. Roja
Vs.
Respondent: U.S. Rayudu and Ors.
Hon'ble Judges/Coram:
Kurian Joseph and Rohinton Fali Nariman, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: V. Giri, Sr. Adv., Amit Kumar, A. Ramesh, Syed Ahmad,
Allam Ramesh, Shilpi Gupta, Shaurya Sahay, Avijit Mani Tripathi, Prithvi Pal and Rekha
Bakshi, Advs.
For Respondents/Defendant: B. Adinarayana Rao, Sr. Adv., Suyodhan Byrapaneni and
Tatini Basu, Advs.
Case Category:
ELECTION MATTERS
Case Note:
Election - Rejection of petition - Order VII Rule 11 of Code of Civil Procedure,
1908 - Appeal was filed against order of High Court whereby Appellant's
application filed for rejection of Petition was posted along with main petition
- Whether High Court was justified in not disposing application filed by
Appellant under Order VII Rule 11 of CPC, for rejection of Election Petition
and posting same along with main petition
Facts:
First Respondent filed an Election Petition challenging election of Appellant.
On receipt of notice in Election Petition, Appellant filed Annexure-P/4-
application for rejection of Petition, under Order VII Rule 11 of CPC, by way of
a counter affidavit. Court declined to consider same on ground that there was
no formal application and hence proceeded with trial. At that stage, Appellant
filed Annexure-P/5-formal application for rejection of Election Petition on
ground that Election Petition did not disclose any cause of action. That
application as per impugned order was posted along with main petition.
Held, while disposing of the Appeals:
1. Stand taken by High Court in impugned order cannot be appreciated. An
application under Order VII Rule 11 of CPC, can be filed at any stage, as held

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by this Court in Sopan Sukhdeo Sable and Ors. v. Assistant Charity
Commissioner and Ors. MANU/SC/0071/2004. Only restriction is that the
consideration of application for rejection should not be on basis of allegations
made by Defendant in his written statement or on basis of allegations in
application for rejection of plaint. Court has to consider only plaint as a
whole, and in case, entire plaint comes under situations covered by Order VII
Rule 11(a) to (f) of CPC, the same has to be rejected.[5] 2. Once an
application is filed under Order VII Rule 11 of CPC, Court has to dispose of
same before proceeding with trial. There is no point or sense in proceeding
with trial of the case, in case the plaint (Election Petition in present case) is
only to be rejected at threshold.[6] 3. Procedure adopted by Court is not
warranted under law. Without disposing of an application under Order VII
Rule 11 of CPC, the court could not proceed with trial. In that view of matter,
impugned order was set aside. [9]
4. However, concern expressed by High Court with regard to alleged attempt
on part of Appellant for delaying trial of Election Petition could not be brushed
aside. Application filed by Appellant under Order VII Rule 11 of CPC, does not
come within purview of any of situations under Order VII Rule 11 (a) to (f) of
CPC. Application rejected.[10]
JUDGMENT
Kurian Joseph, J.
1. Leave granted.
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 Code of Civil Procedure 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 Code of Civil Procedure
can be filed at any stage, as held by this Court in Sopan Sukhdeo Sable and Ors. v.
Assistant Charity Commissioner and Ors. MANU/SC/0071/2004 : (2004) 3 SCC

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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 Code of Civil Procedure, the same has to be rejected.
6. Once an application is filed under Order VII Rule 11 of the Code of Civil Procedure,
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 fling his written statement. In case,
the application is rejected, the Defendant is entitled to file his written statement
thereafter (See Saleem Bhai and Ors. v. State of Maharashtra and Ors.
MANU/SC/1185/2002 : (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 fling 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 Code of Civil Procedure 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 Code of Civil Procedure...", 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 Code of Civil Procedure, the court cannot
proceed with the trial. In that view of the matter, the impugned order is only to be set
aside. Ordered accordingly.
1 0 . 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

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the Appellant on the application under Order VII Rule 11 of the Code of Civil Procedure.
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 Code of Civil Procedure.
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.
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