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Madhya Pradesh High Court · body

2019 DIGILAW 49 (MP)

Balram Bairagi v. Prabha Bai

2019-01-11

G.S.AHLUWALIA

body2019
ORDER 1. This civil revision under section 115 of CPC has been filed against the order dated 12.9.2018 passed by Third Civil Judge, Class-II, Ganj Basoda, District Vidisha in Civil Suit RCSA No. 47/2009, by which the application filed by the applicant under Order 7 rule 11 of CPC has been rejected. 2. The necessary facts for the disposal of the present revision in short are that the respondent No. 7 has filed a civil suit for declaration of title and permanent injunction. It is the case of the respondent No. 7 that he is the owner of the land bearing survey Nos. 346, 347, 348 and 349 ad-measuring 4.818 hectares, situated in village Jhilipura, Tahsil Gang Basoda, District Vidisha, however, the name of the Collector has wrongly been mutated as a Manager, as the said land was never allotted to the temple. 3. An application was filed under Order 7 rule 11 of CPC for rejection of the plaint on the ground that the plaintiff/respondent No. 7 has filed a suit in respect of the land, which is recorded in the name of Temple Mahadev Ji and in this temple slippers (Charan Paduka) of Guru Nanak and Shreechand have been kept. The suit land belongs to the deity and the suit by a deity without its next friend, is not maintainable as the deity has already been treated as a minor. The suit has been filed by the plaintiff in his own name, whereas the document which has been filed by him, does not disclose his ownership. 4. The plaintiff has not filed the suit in the name of the deity and accordingly, it be dismissed. The application was opposed by the counsel for the respondent No. 7. 5. The trial Court by order dated 12.9.2018 has rejected the application on the ground that the application under Order 7 rule 11 of CPC can be decided only on the basis of the averments made in the plaint. The applicant has not clarified as to under what provisions of law the suit is barred. The suit is also pending since 2006 and it is more than 10 years old and it is required to be decided as early as possible. 6. The applicant has not clarified as to under what provisions of law the suit is barred. The suit is also pending since 2006 and it is more than 10 years old and it is required to be decided as early as possible. 6. Challenging the order passed by the Court below, it is submitted by the counsel for the applicant that the application under Order 7 rule 11 of CPC can be filed at any stage of the suit and, therefore, merely because it was filed after ten years of the institution of the suit, would not be sufficient to dismiss the said application. 7. Per contra, it is submitted by the counsel for the respondent No. 7 that it is the objection of the applicant that the property belongs to the deity and the suit should have been filed on behalf of the deity and as the same has not been done, therefore, the suit is not maintainable. By referring to the provisions of Order 1 rule 10 of CPC, it is submitted by counsel for the respondent that even during pendency of the suit if it appears to the plaintiff that the suit has been filed in the name of wrong plaintiff, then the said mistake can be corrected by filing an application under Order 1 rule 10 of CPC, therefore, the plaint cannot be returned back on the ground that the suit has been filed in the name of wrong plaintiff. Thus, it cannot be said that the suit is barred by any law as required under Order 7 rule 11 of CPC. 8. Considered the submissions made by the counsel for the parties. 9. So far as the observation made by the trial Court that the suit is pending for the last 10 years is concerned, this Court is of the considered opinion that merely because the application under Order 7 rule 11 of CPC was filed after lapse of considerable time, the same cannot be a ground for rejecting the said application. The application under Order 7 rule 11 of CPC can be filed at any stage of the suit. Once the application is filed under Order 7 rule 11 of CPC, then the Court has to dispose of the same before proceeding with the suit. The application under Order 7 rule 11 of CPC can be filed at any stage of the suit. Once the application is filed under Order 7 rule 11 of CPC, then the Court has to dispose of the same before proceeding with the suit. However, the trial Court has also observed that the applicant has failed to clarify as to how the suit is barred by any law. 10. It is the contention of the applicant that the suit should have been filed in the name of the deity. The present suit has been filed by the respondent No. 7 claiming himself to be owner of the property and it is his case, that the property in dispute had never been the property of the temple and, therefore, the recording of the name of the Collector as Manager of the Temple, should be quashed and the respondent No. 7 should be declared as the owner of the property. Order 1 rule 10 of CPC deals with the situation where the suit is filed in the name of wrong plaintiff. Order 1 rule 10 of CPC reads as under : ''Suit in the name of wrong plaintiff.-(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.'' 11. From the plain reading of Order 1 rule 10 of CPC, it is clear that that where it appears that the suit has been filed in the name of wrong plaintiff, then the Court may, at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake and it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted as plaintiff upon such terms as the Court thinks just. 12. 12. Thus, mere filing of the suit in the name of wrong person cannot be said to be barred under any law as the same can be rectified at any stage of the suit. The plaint can be rejected under Order 7 rule 11 of CPC only when any of the condition mentioned in the Order 7 rule 11 of CPC is satisfied. Merely because the petitioner is of the view that the suit has been filed in the name of wrong plaintiff, in the considered opinion of this Court, it cannot be said that the suit is barred under any law. Under these circumstances, this Court is of the considered opinion that the trial Court did not commit any mistake in rejecting the application filed by the applicant under Order 7 rule 11 of CPC. 13. Resultantly, the order dated 12.9.2018 passed by Third Civil Judge, Class-II, Ganj Basoda, District Vidisha in Civil Suit RCSA No. 47/2009, is hereby affirmed. 14. This civil revision fails and is hereby dismissed.