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2003 1 Supreme 433 ; 2002 0 Supreme(SC) 1243

2003 0 AIR(SC) 759 ; 2003 0 AIR(SCW) 174 ; 2003 2 ALD(SC) 84 ; 2003 1 AllCJ 704 ; 2003 2
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2003(1) Supreme 433

SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
Syed Shah Mohd. Quadri & Arijit Pasayat, JJ.
Saleem Bhai & Ors. -Appellants
versus
State of Maharashtra & Ors. -Respondents
Civil Appeal No. 8518 of 2002
(Arising out of SLP (C) No. 13234 of 2002)
With
Civil Appeal No. 8519 of 2002
(Arising out of SLP (C) No. 14577 of 2002)
Decided on 17-12-2002
Counsel for the Parties :
For the Appearing Parties : T.R. Andhyarujina, R.F. Nariman, Kailash Vasdev,
K.K. Venugopal, Sr. Advocates, S.V. Deshpande, G.D. Sule, Ms. Anuradha
Rastogi, Murari Lal Pathak, Manish Pitale, Chander Shekhar Ashri, Rashid
Haque, Chandra Shekhar Ashri, Arun Agarwal, Shakil Nawaz, Kuldip Singh,
Pavan Kumar, K.S. Rana, S.S. Shinde, V.N. Raghupathy, W.A. Nomani, B.S.
Banthia for S.K. Agnihotri, Advocates.

VERY IMPORTANT POINT

The application under Order 7 Rule 11 CPC 1908 ought to be decided
on the allegations in the plaint and filing of the written statement by
the contesting defendant is irrelevant and unnecessary.

Subject: Civil Procedure - Rejection of Plaint

Order VII Rule 11 CPC - Plaint rejection - Cause of action - Res judicata - Lis
pendens - Written statement - Procedural irregularity - Jurisdiction

Act Referred :CIVIL PROCEDURE CODE : O.7 R.11, O.7 R.11(a), O.7
R.11(d)

Page No. 1 of 5
Civil Procedure Code, Order 7, Rule 11 - Rejection of plaint - Factors to be
considered- The appellant filed an application under Order 7 Rule 11 for
rejection of plaint under Clauses (a) and (b) of Rule 11 Order 7 C.P.C- The
respondents also filed an application under Order 8 Rule 10
ef=act:10444>C.P.C. to pronounce judgment in the suits as the appellant did not
file his written statement- Application under Order 8 SC.P.C. the appellant
directed to file written statement- High court confirmed the order- Not proper-
Relevant facts for deciding an application under O7 R11are the averments in the
plaint- 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 7 Rule 11 C.P.C. held to be
procedural irregularity touching the exercise of jurisdiction by the trial Court-
Order of the High Court and trial court set aside- Matter remitted to trial court
to proceed according to law. [Paras7, 8 and 9]

ORDER

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 SLP (C) No. 13234 of 2002 and
the sole respondent in the appeal arising out of SLP (C) 14577 of 2002 filed suits
in February, 2002, out of which these appeals arise. The eighth 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 Judgement and Decree passed by the III Joint
Civil Judge, Senior Division, Nagpur in Special Civil Suit No. 147 of 1967,
Judgement and Decree passed by IV Additional District Judge, Nagpur in
regular Civil Appeal No. 16 of 1987, and approving the same in the Judgement
and Decree passed by the Hon ble Bombay High Court, Bench at Nagpur in
Second Appeal No. 132 of 1992, and while maintaining this Judgement and
Decree, Judgement 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

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Civil Procedure, 1908 (for short, the CPC ) 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 rejected under Clauses (a) and (d) of Rule 11 of Order VII
CPC. While so, the said respondents also filed an application under Order VIII
Rule 10 CPC to pronounce judgement in the suits as the appellant did not file his
written statement. There was also an application by the appellant under Section
151 CPC praying the court to decide first the application under Order VII Rule
11 CPC. 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 CPC. Insofar as the application under Order VII Rule 11 CPC is
concerned, the learned Judge directed the appellant to file his written statement.
Aggrieved thereby, the appellant filed aforementioned 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 SLP (C) No. 13234 of 2002 and Mr. R.F. Nariman,
learned senior counsel appearing for the appellant in the appeal arising out of
SLP (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 CPC and that the Court ought to have considered the said
application on 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 pendense.

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 judgements,
including the order passed by this Court and, therefore, neither the principle of
res judicata nor the principle of lis pendense is attracted.

7. The short common question that arises for consideration in these appeals is,
whether an application under Order VII Rule 11 CPC ought to be decided on
the allegations in the plaint and filing of the written statement by the contesting
defendant is irrelevant and unnecessary.
Page No. 3 of 5
8. Order VII Rule 11 CPC 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;

(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 CPC 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 CPC 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.
For the purposes of deciding an application under Clauses (a) and (d) of Rule 11
of Order VII CPC, 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 CPC. 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 aforementioned reasons, the
Page No. 4 of 5
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 CPC 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.

(N.K.R.) Appeals allowed accordingly.

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