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2020 DIGILAW 188 (ALL)

Kishan Singh v. Shashi Jain

2020-01-17

NEERAJ TIWARI

body2020
JUDGMENT : Neeraj Tiwari, J. Heard Sri Vishal Khandelwal, learned counsel for the petitioners. 2. By way of present petition, petitioners are challenging impugned order dated 09.12.2019 passed by 7th Additional District & Sessions Judge, Agra in SCC Revision No. 14 of 2017 (Kishan Singh Vs. Shashi Jain). 3. Learned counsel for the petitioners submitted that plaintiff-respondent has filed SCC Suit No. 25 of 2011 against the petitioner no. 1 claiming herself to be the owner and landlord of Property No. 21/67 in which petitioner is the tenant of one room (described as Private Room No. 6) at the rent of Rs. 13.75/-per month besides taxes. It is alleged that petitioner is not paying rent from 1.1.1996, made material alteration and also sublet the said room. Relief claimed by the plaintiff-respondent is for eviction and arrears of rent. Petitioners-defendants have filed a detailed written statement with regard to the averment of plaint. Judge, Small Cause Court, Agra allowed the suit vide judgment and decree dated 30.03.2017 for eviction and payment of rents. Against the judgment and order of Judge, Small Cause Court, Agra dated 30.03.2017, petitioners preferred SCC Revision No. 14 of 2017, which is still pending for final decision. 4. During the pendency of the Revision, petitioners have filed Application- 67Ga under Order 7 Rule 11 read with Section 151 CPC on the ground that disputed rented room has not been sufficiently described in the Plaint because of which it is not identifiable and no site plan has been annexed along with Plaint. It is also stated in the application that mandatory provision of Order 4 Rule 1, 2 & 3 of CPC have not been complied with, therefore, Plaint is liable to be rejected. Additional District Judge, Court No. 7, Agra vide order dated 09.12.2019, rejected the application-67Ga of the petitioners. It was rejected on the ground of merits as well as on the ground that this objection has never been raised by the petitioner-plaintiff in his written submission. 5. Learned counsel for the petitioners assailed the order on the ground that application under Order 7 Rule 11 of CPC can be filed at any time and at any stage as Order 7 Rule 11 of CPC does not provide any time limit and stage of legal proceeding. 5. Learned counsel for the petitioners assailed the order on the ground that application under Order 7 Rule 11 of CPC can be filed at any time and at any stage as Order 7 Rule 11 of CPC does not provide any time limit and stage of legal proceeding. Order 7 Rule 11 of CPC provides ground of rejection of Plaint and it is required on the part of Court concerned to consider the same first and pass order even though it has not been raised by the defendant. It is next submitted that Section 21 of CPC provides that objection has to be taken with regard to jurisdiction at his first instance at the earliest possible opportunity and in Order 7 Rule 11 of CPC, there is no restriction or limitation, therefore, at any stage of legal proceeding, defendant can take objection and Court is bound to decide the same irrespective of limitation or stage of proceedings. It is also submitted that by the perusal of Plaint itself, it is absolutely clear that there is no disclosure or description of property and further it was in violation of Order 4 Rule 1, 2 & 3, therefore, it is required on the part of Court to reject the Plaint and allow the application, but the application 67 G was rejected, which is bad in the eye of law and is liable to be set aside. 6. I have considered the submissions made by learned counsel for the petitioners and perused the records. 7. There is no dispute on the point that when the suit was filed, the petitioners-defendants have not taken any objection under Order 7 Rule 11 of CPC. The suit was decreed vide order dated 30.3.2017 and even at the time of filing of revision, petitioners have not taken any such objection which was available to them, therefore, the issue is whether the application filed under Order 7 Rule 11 of CPC can be entertained at any stage of proceedings and without considering any limitation or not. 8. Order 7 Rule 11 of Civil Procedure Code, 1908 is quoted below:- "11. 8. Order 7 Rule 11 of Civil Procedure Code, 1908 is quoted below:- "11. Rejection of plaint— The plaint shall be rejected in the following cases:— (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law : [144] [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]" By the perusal of Order 7 Rule 11 of CPC, it is apparently clear that basic purpose of Order 7 Rule 11 of CPC is to raise objection at the earliest for immediate disposal of suit in case Plaint has been filed contrary to provisions of Order 7 Rule 11 of CPC otherwise there is no need of Order 7 Rule 11 of CPC and it may be left open for the defendant to raise objection along with his written statement. Learned counsel for the petitioners has also relied upon Section 21 of C.P.C. The same is being quoted hereinbelow:- "21. Objections to jurisdiction- No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. Objections to jurisdiction- No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. (2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. (3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing court at the earliest possible opportunity, and unless there has been a consequent failure of justice." 9. Certainly, Section 21 of CPC deals with objection with regard to jurisdiction, but in spirit it cannot be isolated only for jurisdiction and principle of Section 21 of CPC would also be applicable for filing of application under Order 7 Rule 11 of CPC meaning thereby at the earliest objection should have been moved. 10. Section 21 of CPC and Order 7 Rule 11 of CPC should be read conjointly and not separately. It is required on the part of petitioners-defendants to raise objection at the earliest before the framing of issue and there is no dispute in the present matter that it has been raised at a very belated stage during the pendency of Revision, therefore, whatever argument is raised by learned counsel for the petitioners is not sustainable and allowing of such application would frustrate the object and purpose of Order 7 Rule 11 of CPC read with Section 21 of CPC. Even if there is no limitation prescribed, in the light of Section 21 of CPC, it is required on the part of petitioners to raise objection at the earliest immediately after receiving the Plaint and not at any stage of litigation as it is filed in present case. 11. Similar position is also about the violation of Order 4 Rule 1, 2 & 3 of CPC. 11. Similar position is also about the violation of Order 4 Rule 1, 2 & 3 of CPC. This objection has never been raised either before the Small Causes Court or Revisional Court, therefore, in light of finding given hereinabove, petitioner cannot be permitted to raise this issue at this belated stage. 12. So far as the factual position of the plaint is concerned, there is specific finding of the Revisional Court that there is description of property in dispute which was duly accepted by the petitioners-defendants in its written submission. Tenancy is also accepted, therefore, that cannot be interfered by this Court while exercising the jurisdiction under Article 227 of Constitution of India. 13. Therefore, under such facts and circumstances, petition lacks merit and is, accordingly, dismissed. No order as to costs.