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2008 DIGILAW 1033 (ORI)

LAXMIDHAR JAGDEV v. SURESH KUMAR SAHOO

2008-11-19

B.N.MAHAPATRA, B.S.CHAUHAN

body2008
JUDGMENT : Dr. B.S. Chauhan, C.J. - This appeal has been filed against the judgment and order of the Learned Single Judge dated 07.12.2007 by which the Writ Petition filed by the present Appellant was dismissed with liberty to the parties to raise all their submissions before the Court below at the time of hearing of the Election Misc. Case, affirming the judgment and order of the Election Tribunal dated 27.11.2007 on the application filed under Order 7 Rule 11 of the CPC (hereinafter called as Code of Civil Procedure). 2. In the Election petition, the Appellant being the returned candidate has filed an application under Order 7 Rule 11 CPC raising the issue of limitation, deposit of fee and that the applicant/election Petitioner was insolvent. However, the Election Tribunal as well as the Learned Single Judge held that these are the matters to be examined at the time of Trial and the application was rejected. 3. We have heard Mr. A.K. Mohapatra, Learned Counsel for the Appellant and Mr. S.P. Mishra, Learned Senior Counsel for the Respondents and perused the records. 4. The view taken by the Learned Single Judge as well as the Election Tribunal that the issue of limitation and other points agitated by the Appellant in his application under Order 7 Rule 11 CPC could not be decided at the threshold rejecting the election petition, rather requires adjudication of certain facts is fully justified and legally correct. 5. Order 7 Rule 11 CPC provides for dismissal of a Suit and empowers the Court to reject the plaint in case plaint does not disclose a cause of action where the relief claimed is undervalued and in spite of time given by the Court to correct the valuation within time, Plaintiff fails to do so and where the sufficient Court-fee has not been paid and the deficiency is not made good in spite of time granted by the Court or where the Suit is barred by law. Two further facts have been added by Amendments of 1999 and 2002 that a plaint can be rejected if not filed in duplicate or where the provisions of Order 7 Rule 9 have not been complied with. (See Pearlite Liners Pvt. Ltd.- v. Manorama Sirsi, AIR 2004 SCW 273 . 6. While deciding the application under Order 7, Rule 11 CPC it is not necessary to call for the written statement. (See Pearlite Liners Pvt. Ltd.- v. Manorama Sirsi, AIR 2004 SCW 273 . 6. While deciding the application under Order 7, Rule 11 CPC it is not necessary to call for the written statement. It may be decided merely by going through the averments made in the plaint. (Vide Saleem Bhai and Others Vs. State of Maharashtra and Others, . 7. Order 7, Rule 11 CPC castes a duty on the Court to reject the plaint for non-disclosure of cause of action. Irrespective of any objection taken by the Defendant. It is the duty of the Court to see if the plaint really discloses any cause of action or if the plaint if barred under the provisions of any law. (Vide ITC Limited Vs. Rakesh Behari Srivastava and others, .) 8. Order 7, Rule 11 (d) applies only where statement made in the plaint without addition or subtraction shows that case is barred by any law. Disputed questions cannot be decided at the time of considering an application under Order 7, Rule 11 CPC (Vide Popat and Kotecha Property Vs. State Bank of India Staff Association, . 9. In Sandeep Polymers Pvt. Ltd. Vs. Bajaj Auto Ltd. and Others the Court held that while considering the application under Order 7 Rule 11 Clause (d), Court cannot be justified in rejecting a particular portion of the plaint. It can reject the entire plaint, for the reason that in such an eventuality, provisions of Order 6 Rule 16 are applicable. 10. In Kamlesh Babu and Ors. v. Lajpat Rai Sharma and Ors., AIR 2008 SCW 3241 , the Apex Court held that it is the duty of the Court to frame the issue regarding the limitation and if it comes to the conclusion that plaint is time barred, it must reject the plaint. While dealing the said case, a very heavy reliance has been placed upon its judgment in AIR 1944 24 (Privy Council) wherein it had been' held that issue of limitation is prima facie admissible even in the Court of last resort, even if it had not been taken in the lower Courts. 11. Even in the case of valuation of suit, though it may be a pure question of law, the Court must decide it as a preliminary issue at the initial stage (vide Resham Lal and Others Vs. Anand Sarup and Another, ; Jagdish Rai and Others Vs. 11. Even in the case of valuation of suit, though it may be a pure question of law, the Court must decide it as a preliminary issue at the initial stage (vide Resham Lal and Others Vs. Anand Sarup and Another, ; Jagdish Rai and Others Vs. Sant Kaur, ; and Smt. Cheina & Ors, v. Nirbhay Singh, 1997 (1) RLW 688 12. In Panna Lal Vs. Mohan Lal and Others The Court held that if the Defendant pleads in his written statement that the subject matter of the suit has not been properly valued, such issue must be decided as a preliminary issue as per the requirement of Order 14 Code of Civil Procedure. 13. In Major S.S. Khanna Vs. Brig. F.J. Dillon the Hon'ble Supreme Court observed that under Order 14 Rule 2 Code of Civil Procedure, where issues, both of law and of facts, arise in the same Suit and the Court is of the opinion that the case or any part thereof may be disposed of on the issue of law only, it shall try those issues first, and for that purpose, may, if it thinks fit, postpone the settlement of issues of facts until after the issues of law have been determined. However, where the decision on the issues of law depends upon the decision of issues of facts, then all the issues must be decided together, otherwise the result will be in a lope-sided Trial of the suit. 14. Issue of deficit Court-fee is to be decided as a preliminary issue. (Vide N.R. Govindarajan v. V.K. Rajagopalan and Ors., (2005) 12 SCC 362 . 15. In Ramesh B. Desai and Others Vs. Bipin Vadilal Mehta and Others, ; and Balasaria Construction (P) Ltd. v. Hanuman Seva Trust, (2006) 5 SCC 658 , the Supreme Court held that the mixed question of fact and law cannot be adjudicated upon under Order 14 Rule 2. In case a plea of limitation is taken, it cannot be decided under the said provision dehors the facts involved therein as in each and every case, the starting point of limitation has to be ascertained unless it is clearly made out that the petition was barred merely by bare perusal of the pleadings. 16. In case a plea of limitation is taken, it cannot be decided under the said provision dehors the facts involved therein as in each and every case, the starting point of limitation has to be ascertained unless it is clearly made out that the petition was barred merely by bare perusal of the pleadings. 16. Thus in such fact situation, not entertaining an application under Order 7 Rule 11 CPC must be justified and the Court may decide all legal issues as preliminary issues at the initial stage of the Trial. 17. In view of the above, we do not find any force in the appeal, which is accordingly dismissed. However, in the facts and circumstances of the case, we request the Learned Election Tribunal to frame issues on the basis of the pleadings taken by the parties and examine as to whether it is possible to try the preliminary issues first as required under Order 14 Rule 2 CPC expeditiously. B.N. Mahapatra, J. 18. I agree.