MANU/SC/1185/2002

Equivalent/Neutral Citation: AIR2003SC 759, 2003(2)ALT27(SC ), 2003(1)ARC 363, 2003 (3) AWC 2157 (SC ), I(2003)DMC 166SC ,
JT2002(10)SC 558, 2003(2)MhLJ529(SC ), 2003MPLJ320(SC ), 2003(1)RC R(C ivil)464, 2002(9)SC ALE616, (2003)1SC C 557, [2002]SUPP5SC R491,
2003(1)UC 270, 2003(1)UJ218

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8518 of 2002
Decided On: 17.12.2002
Saleem Bhai and Ors. Vs. State of Maharashtra and Ors.
Hon'ble Judges/Coram:
S.S.M. Quadri and Dr. Arijit Pasayat, JJ.
Counsels:
T.R. Andhyarujina, R.F. Nariman, Kailash Vasdev and K.K. Venugopal, Sr. Advs., S.V.
Deshpande, G.D. Sule, Anuradha Rustogi, Murari Lal Pathak, Manish Pitale, Rashid
Haque, Chander Shekhar Ashri, Arun Agarwal, Shakil Nawaz, Kuldeep Singh, Pawan
Kumar, K.S. Rana, S.S. Shinde, V.N. Raghupathy and W.A. Nomani, Advs., B.S. Banthia,
Adv. for S. K. Agnihotri, Adv. for Appearing parties
ORDER
1. Leave is granted.
2 . These appeals arise from the common order of the High Court of Madhya Pradesh
[Indore Bench] in civil Revision Petition Nos. 256 of 2002 and 257 of 2002 dated 7th
May, 2002.
3 . These cases have a chequered history but in the view we have taken, we do not
consider it necessary to refer to the facts in any detail. Suffice it to say that Respondent
No. 7 in the appeal arising out of S.L.P. (C) No. 13234 of 2002 and the sole respondent
in the appeal arising out of S.L.P. (C) 14577 of 2002 filed suits in February, 2002, cut
of which these appeals arise. The eight defendant in the suits is the appellant in these
two appeals. The said respondents-plaintiffs in the suits claimed, inter alia, the
following relief:
"(2). That it be declared that the Judgment and Decree passed by the III Joint
civil Judge, Senior Division, Nagpur in Special civil Suit No. 147 of 1967,
Judgment and Decree passed by IV Additional District Judge, Nagpur in regular
civil Appeal No. 16 of 1987, and approving the same in the Judgment and
Decree passed by the Hon'ble Bombay High Court, Bench at Nagpur in Second
Appeal No. 132 of 1992, and while maintaining this Judgment and Decree,
Judgment and order passed by the Hon'ble Supreme Court in Special Leave
petition (Civil) No. 25004/96 and in Review Petition No. 1075/97 and order
passed in various Revenue case No. 8/1996-97, are illegal, not in existence,
null and void and are not within the jurisdiction and therefore are not binding
on the plaintiff."
4 . The appellant filed an application under Order VII Rule 11 of the Code of civil
Procedure, 1908 (for short, 'the C.P.C.') in the suits praying the court to dismiss the
suits on the ground stated therein. Before us, it is stated that the plaint is liable to be

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rejected under Clauses (a) and (d) of Rule 11 of Order VII C.P.C. While so, the said
respondents also filed the application under Order VIII Rule 10 C.P.C. to pronounce
judgment in the suits as the appellant did not file his written statement. There was also
an application by the appellant under Section 151 C.P.C. praying the court to decide
first the application under Order VII Rule 11 C.P.C. By order dated 8th December, 2001,
the learned Trial Judge dismissed the application under Order VIII Rule 10 as well as
the application filed under Section 151 C.P.C. Insofar as the application under Order VII
Rule 11 C.P.C. is concerned, the learned Judge directed the appellant to file his written
statement. Aggrieved thereby, the appellant filed afore-mentioned revision petitions
before the High Court of Madhya Pradesh [Indore Bench]. On May 7, 2002, the High
Court, while confirming the order of the learned Trial Judge reiterated the direction
given by the learned Trial Judge that the appellant should file his written statement and
observed that the trial court shall frame issues of law and facts arising out of pleadings
and that the trial court should record its finding on the preliminary issue in accordance
with law before proceeding to try the suit on facts. It is against this order of the High
Court that the present appeals have been preferred.
5 . Mr. T.R. Andhyarujina, learned senior counsel appearing for the appellant in the
appeal arising out of S.L.C. (C) No. 13234 of 2002 and Mr. R.F. Nariman, learned senior
counsel appearing for the appellant in the appeal arising out of S.L.P. (C) No. 14577 of
2002 have contended that having regard to the very nature of the relief claimed by the
plaintiffs, the plaints are liable to be rejected under Order VII Rule 11 C.P.C. and that
the court ought to have considered the said application or merits instead of giving
direction to file written statement which would amount to not exercising the jurisdiction
vested in the court. It is further contended that the High Court also did not appreciate
that the plaints do not show any cause of action and that the plaint ought to have been
rejected as the suit is barred by the principles of res judicata and lis pendens.
6 . Mr. K.K. Venugopal, learned senior counsel appearing for the respondents, on the
other hand, drew our attention to various orders passed in earlier proceedings to show
that the subject-matter of the property, items 51 and 52 of the relinquishment deed
were not the suit properties in the earlier judgments, including the order passed by this
Court and, therefore, neither the principle of res judicata nor the principle of lis
pendens is attracted.
7. The short common question that arises for consideration in these appeals is, whether
an application under Order VII Rule 11 C.P.C. ought to be decided on the allegations in
the plaint and filing of the written statement by the contesting defendant is irrelevant
and unnecessary.
8. Order VII Rule 11 C.P.C. reads as under:
"11. Rejection of plaint.--The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being
required by the Court to correct the valuation within a time to be fixed
by the court, fails to do so;
(c) where the relief claimed is properly valued by the plaint is written
upon paper insufficiently stamped, and the plaintiff, on being required
by the Court to supply the requisite stamp-paper within a time to be
fixed by the Court, failed to do so;

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 (d) where the suit appears from the statement in the plaint to be barred
by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of Rule 9;
Provided that the time fixed by the Court for the correction of the
valuation or supplying of the requisite stamp-paper shall not be
extended unless the Court, for reasons to be recorded, is satisfied that
the plaintiff was prevented by any cause of an exceptional nature for
correcting the valuation or supplying the requisite stamp-paper, as the
case may be, within the time fixed by the Court and that refusal to
extend such time would cause great injustice to the plaintiff."
9. A perusal of Order VII Rule 11 C.P.C. makes it clear that the relevant facts which
need to be looked into for deciding an application thereunder are the averments in the
plaint. The trial court can exercise the power under Order VII Rule 11 C.P.C. at any state
of the suit - before registering the plaint or after issuing summons to the defendant at
any time before the conclusion of the trial. For the purposes of deciding an application
under Clauses (a) and (d) of Rule 11 of Order VII C.P.C., the averments in the plaint are
germane; the pleas taken by the defendant in the written statement would be wholly
irrelevant at that stage,
therefore, a direction to file the written statement without deciding the application
under Order VII Rule 11 C.P.C. cannot but be procedural irregularity touching the
exercise of jurisdiction by the trial court.
The order, therefore, suffers from non-exercising of the jurisdiction vested in the court
as well as procedural irregularity. The High Court, however, did not advert to these
aspects.
10. We are, therefore, of the view that for the afore-mentioned reasons, the common
order under challenge is liable to be set aside and we, accordingly, do so. We remit the
cases to the trial court for deciding the application under Order VII Rule 11 C.P.C. on
the basis of the averments in the plaint, after affording an opportunity of being heard to
the parties in accordance with law.
11. The civil appeals are, accordingly, allowed. There shall be no order as to costs.
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