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2018 DIGILAW 937 (KER)

Abdulla Haji P. v. VS Saji Chandroth

2018-11-19

ANNIE JOHN, K.HARILAL

body2018
JUDGMENT : K.Harilal, J. 1. Heard the learned counsel for the petitioners and the learned counsel for the respondents. 2. Coming to the instant case, going by the impugned order, it could be seen that the court below has dismissed I.A. No.492 of 2018 mainly on the ground that the reliefs under Order 11 Rule 11 and Order 11 Rule 21 of the Code of Civil Procedure,1908(hereinafter referred to as 'the C.P.C.)were prayed for simultaneously in a single petition and an order under Order 11 Rule 21 of the C.P.C. can be passed, only after passing an order under Rule 11 of Order 11 of the C.P.C. and in the present petition both reliefs are prayed for simultaneously. 3. But, going by Ext.P8 application filed by the petitioners, it could be seen that the relief under Rule 21 of Order 11 of the C.P.C. was prayed for in alternative to the relief under Rule 11 of Order 11 of the C.P.C. and the petitioners have not prayed for both reliefs under both the provisions simultaneously. No doubt, it is also impermissible as the relief under Rule 21 can be granted after passing an order under Rule 11 of Order 11 of the C.P.C. Even if both the reliefs were prayed for simultaneously, the court below ought to have considered the relief under Rule 11 of Order 11 of the C.P.C. and dismissed the relief under Rule 21 of Order 11 of the C.P.C. Instead of it, the court below dismissed both. The court below is not justified in dismissing both the applications for the aforesaid reason only, in view of the interest of justice. 4. Where an application is filed, seeking two reliefs and both the reliefs cannot be considered together simultaneously, only one alone can be allowed or rejected, as the latter is consequent on the former and it can be considered subsequently only, it is just and proper to consider the first one and reject the other. It is not just or proper to dismiss both reliefs, merely on the reason that both reliefs are prayed for simultaneously in the same petition. 5. Consequently, the impugned order would stand set aside and the application is remitted to the court below, for fresh consideration and disposal. It is not just or proper to dismiss both reliefs, merely on the reason that both reliefs are prayed for simultaneously in the same petition. 5. Consequently, the impugned order would stand set aside and the application is remitted to the court below, for fresh consideration and disposal. The court below shall consider the relief under Order 11 Rule 11 of the C.P.C., if no order had been passed earlier under Order 11 Rule 11 of the C.P.C. If any order had been passed earlier under Rule 11 of Order 11, the trial court can pass orders under Rule 21 of Order 11 of the C.P.C. The parties shall appear before the court below on 17th December, 2018. The court below shall pass orders afresh, at the earliest, at any rate, within a period of three weeks from the date of their appearance. This O.P.(RC) is allowed accordingly.