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2017 DIGILAW 2092 (ALL)

Mahesh Chandra v. Bishan Dayal

2017-09-06

YASHWANT VARMA

body2017
JUDGMENT : 1. Heard learned counsel for the petitioner and Sri Madhav Jain, learned counsel for the contesting respondent. 2. The challenge in the present petition is to the orders dated 5 July 2010 and 3 May 2014. In terms of the first order, the trial Court has refused to entertain or pass orders on the application filed by the petitioner under Order VII Rule 11 CPC alleging that the suit would be barred in terms of Section 69 of the Indian Partnership Act. The Trial Court further issued directions commanding the petitioner-respondent to file his written statement and that it would consider the said application thereafter. This order of the trial Court has been affirmed by the revisional Court in terms of its judgment dated 3 May 2014. 3. Learned counsel referring to the decisions rendered in Shoib Ullah and others Vs. Bhartesh Chandra Jain and another, (2002) AWC 3859 as also a recent decision of the Supreme Court in R.K. Roja Vs. U.S. Rayudu, (2016) 14 SCC 275 has submitted that the provisions of Order VII Rule 11 cast a mandatory obligation upon the Court to decide at the very outset whether the plaint discloses a cause of action or is otherwise barred by law. He submitted that this decision cannot be deferred awaiting the filing of a written statement since undisputedly the disposal of an application under order VII Rule 11 would have to necessarily be confined to a reading of the plaint allegations alone or in case the objection taken be one which falls under sub-clause (d) then the relevant provisions of the statute which bar or oust the jurisdiction of the civil court. In view of the above, he would submit that the courts below clearly erred in refusing to entertain the said application and passing orders thereon. 4. Sri Madhav Jain, learned counsel appearing for the contesting respondent has on the other hand sought to urge before this Court that the provisions of Section 69 would have no application since the partnership was an unregistered firm. 5. This Court does not deem it necessary to go into this issue simply because this is not a case where the Courts below have proceeded to rule upon or reject the application on merits. 5. This Court does not deem it necessary to go into this issue simply because this is not a case where the Courts below have proceeded to rule upon or reject the application on merits. Whether the suit would be barred by the provisions of Section 69 is an issue which is yet to be considered and adjudicated upon by the Courts below. This Court while exercising its power of superintendence is not ordinarily supposed to go into the merits of the case. What falls for scrutiny and adjudication by the Court under Article 227 of the Constitution is whether any grave or palpable error has been committed by the Courts below while discharging their functions or in exercise of their judicial powers resulting in manifest injustice. In the facts of the present case and in light of the undisputed position in law which is noted hereinafter, this Court is of the firm opinion that a grave and palpable error has been committed by the Courts below which would warrant correction in exercise of the powers of superintendence vested by the Constitution. 6. The power conferred by Order VII Rule 11 is primarily to ensure that a suit which discloses no cause of action or is otherwise barred in law is brought to an end at the threshold. This obviates the courts from undertaking a full fledged trial and then ultimately coming to a conclusion either that the plaint discloses no cause of action or that the jurisdiction of the court stands ousted by law. The legislative policy underlying Order VII Rule 11 was pithily explained by the Supreme Court in Azhar Hussain Vs. Rajiv Gandhi, (1986) Supp SCC 315 in the following terms:- "12. Learned counsel for the petitioner has next argued that in any event the powers to reject an election petition summarily under the provisions of the Code of Civil Procedure should not be exercised at the threshold. In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which it is difficult to comprehend. With respect to the learned counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation the court readily exercises the power to reject a plaint if it does not disclose any cause of action. Or the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexatious parts of the pleadings. Or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law. An order directing a party to strike out a part of the pleading would result in the termination of the case arising in the context of the said pleading. The courts in exercise of the powers under the Code of Civil Procedure can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. The powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. And so that they can adjust their affairs on the footing that the litigation will not make demands on their time or resources, will not impede their future work, and they are free to undertake and fulfil other commitments. And so that they can adjust their affairs on the footing that the litigation will not make demands on their time or resources, will not impede their future work, and they are free to undertake and fulfil other commitments. Such being the position in regard to matter pertaining to ordinary civil litigation, there is greater reason for taking the same view in regard to matters pertaining to elections. ........To wind up the dialogue, to contend that the powers to dismiss or reject an election petition or pass appropriate orders should not be exercised except at the stage of final judgment after recording the evidence even if the facts of the case warrant exercise of such powers, at the threshold, is to contend that the legislature conferred these powers without point or purpose, and we must close our mental eye to the presence of the powers which should be treated as non-existent. The court cannot accede to such a proposition. The submission urged by the learned counsel for the petitioner in this behalf must therefore be firmly repelled." (emphasis supplied) 7. This position in law has been reiterated in Roja as would be evident from the following observations appearing therein:- "5. Once an application is filed under Order 7 Rule 11 CPC, 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 filing his written statement. In case the application is rejected, the defendant is entitled to file his written statement thereafter (see Saleem Bhai v. State of Maharashtra [Saleem Bhai v. State of Maharashtra, (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 the relevant portion from para 20 of Sopan Sukhdeo Sable case [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137 ] : (SCC pp. 148-49) "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. 148-49) "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 filing 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." 6. In Saleem Bhai case [Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557 ] , this Court has also held that: (SCC p. 560, para 9) "9. ... a direction to file the written statement without deciding the application under Order 7 Rule 11 cannot but be a procedural irregularity touching the exercise of jurisdiction by the trial court." However, we may hasten to add that the liberty to file an application for rejection under Order 7 Rule 11 CPC cannot be made as a ruse for retrieving the lost opportunity to file the written statement. 7. Apparently, in the present case, it is seen that Annexure P-4, affidavit dated 15-3-2015, with a prayer ... "to dismiss the present election petition under Order 7 Rule 11 CPC...", 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. EA No. 222 of 2016 was filed on 22-2-2016 leading to the impugned order, posting the application for consideration at the time of final hearing. 8. The procedure adopted by the court is not warranted under law. Without disposing of an application under Order 7 Rule 11 CPC, the court cannot proceed with the trial. In that view of the matter, the impugned order is only to be set aside. Ordered accordingly." (emphasis supplied) 8. 8. The procedure adopted by the court is not warranted under law. Without disposing of an application under Order 7 Rule 11 CPC, the court cannot proceed with the trial. In that view of the matter, the impugned order is only to be set aside. Ordered accordingly." (emphasis supplied) 8. From the discussion above as well as the principles enunciated by the Supreme Court in the decisions noticed, it is clear and apparent that the courts below committed a manifest and grave error in failing to dispose of the application made by the petitioner and deferring a decision thereon awaiting the filing of a written statement. A litigation which is vexatious or is otherwise contended to be barred by law cannot be permitted to proceed to a full length trial. This would clearly be contrary to the legislative intendment underlying Order VII Rule 11. Adoption of a course of action as has been done by the courts below in the facts of the present case would clearly do injustice to a valuable right conferred upon a defendant by the aforementioned provision. The orders impugned herein cannot therefore be sustained. 9. Accordingly and for all the reasons noted above, this writ petition is allowed. The orders dated 5 July 2010, passed by the Ist Additional Civil Judge (Junior Division) and 3 May 2014, passed by the Additional District Judge, Court No. 9, Firozabad are hereby set aside. The Trial Court shall now take up for consideration the application preferred by the petitioner under Order VII Rule 11 and shall proceed to rule upon the same on merits before proceeding any further. The trial Court shall endeavour to decide the said application in the light of the observations made herein above expeditiously and preferably within a period of three months from the date of presentation of a certified copy of this Order.