Research › Search › Judgment

Rajasthan High Court · body

2016 DIGILAW 521 (RAJ)

Desh Ram v. Om Prakash

2016-04-12

PRAKASH GUPTA

body2016
JUDGMENT : Prakash Gupta, J. 1. Instant Civil Revision Petition has been filed under Section 115 of CPC challenging the order dated 03.10.2011 passed by Additional District Judge, Khetri in Civil Suit No. 37/2009 whereby, the learned trial Court dismissed the application filed by the petitioner under Order 7, Rule 11 CPC. 2. The brief facts giving rise to the revision petition are that respondent No. 1-plaintiff filed a suit for recovery against the petitioner and respondent No. 2 on the basis of a document dated 23.11.2006. An application under Order 7, Rule 11 CPC was filed by the petitioner alleging therein that no facts much less material facts have been pleaded against him and no cause or action has been disclosed against petitioner. Hence, plaint against the petitioner is liable to be rejected. The said application was dismissed by the learned trial Court hence, this revision. 3. I have heard learned counsel for the parties. 4. Learned counsel for the petitioner Sh. Manish Sharma has submitted that nothing has been pleaded against the defendant-petitioner in the plaint and no cause of action against him. It is submitted that there was no privity of contact between respondent No.1 and petitioner, therefore, plaint should haw been rejected against the petitioner by the learned trail Court. It is submitted that the suit can be rejected against the petitioner only. 5. Learned counsel for the petitioner has placed reliance on Church of Christ Charitable Trust and Education Charitable v. Ponniamman Educational Trust, 2012 (2) WLC (SC) Civil 211 : (2012) 8 SCC 706 . 6. Per contra learned counsel for the respondent No. 1 has supported the order impugned. 7. It reveals from the plaint averments that nothing has been pleaded against the defendant-petitioner and no cause of action has been disclosed against him. 8. In the case Church of Christ Charitable Trust and Education Charitable (supra) the Hon'ble Apex Court has observed as under:- "25. The stand taken by the appellant, who has filed the application for rejection of the plaint, is sustainable and acceptable. We have already adverted to the averments in the plaint and we have held that the plaint has not shown a complete cause of action of privity of contract between the plaintiff and the first defendant or on behalf i of the first defendant. We have already adverted to the averments in the plaint and we have held that the plaint has not shown a complete cause of action of privity of contract between the plaintiff and the first defendant or on behalf i of the first defendant. To reject the plaint even before registration of the plaint on one or more grounds mentioned in Order 7, Rule 11 of the Code, the other defendants need not necessarily be heard at all as it does not affect their rights, as a matter of fact, his Court in Saleem Bhai hold that the plaint can be rejected even before the issuance of summons. This Court has taken a view that the trial Court can exercise its power under Order 7, Rule 11 of the Code at any stage of the suit i.e. before registering the plaint or after issuance of summons to the defendants or at any time before the conclusion of the trial. We respectfully agree with the said view and reiterate the same." 9. In view of the above, I am of the view the suit shall not proceed against the petitioner and plaint against him is liable to be rejected. The court below has not properly appreciated the provisions contained in Order 7, Rule 11 CPC and as such committed jurisdictional error in passing the impugned order, if such order is allowed to stand, it would occasion to failure of justice. 10. In the result, I allow this revision petition and set aside the impugned order and the plaint is rejected against the petitioner. The suit shall proceed against the remaining defendant. No order as to costs.