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2020 DIGILAW 254 (UTT)

Kishan Singh v. Bhupendra Singh

2020-06-22

LOK PAL SINGH

body2020
ORDER : Lok Pal Singh, J. 1. Instant civil revision is directed against the order dated 16.02.2019 passed by Civil Judge (Senior Division), Almora, whereby the application filed by the revisionists/defendants paper No. 50A under Order 7, Rule 11 (a), (b) and (d) of CPC has been dismissed. 2. Facts, in brief, are that plaintiffs/respondent Nos. 1 and 2 filed a suit being Civil Suit No. 21 of 2016 against the revisionists/defendants seeking demolition of alleged illegal construction, restoration of possession and permanent injunction in respect of property in dispute. Revisionists/defendants contested the suit and filed their written statements. Respondent No. 3/defendant No. 3 also filed a separate written statement. On the basis of pleadings of parties, relevant issues were framed. Thereafter, the case was fixed for evidence. The plaintiff filed affidavit of examination-in-chief and the case was fixed for cross- examination of the plaintiff. Meanwhile, revisionists/defendants filed an application under Order VII, Rule 11 of CPC, for rejection of plaint on the ground that the plaint does not disclose any cause of action; suit of the plaintiff is undervalued and the plaint is barred by law of limitation. After hearing the learned counsel for the parties and on perusal of file, the trial court, vide order dated 16.02.2019, dismissed the defendants' application moved under Order VI, Rule 11, CPC. 3. I have heard learned counsel for the parties and perused the entire material brought on record. 4. Before any discussion, Order 7, Rule 11 of CPC would be apt to reproduce, which is as under:- "11. Rejection of plaint.- The plaint shall be rejected in the following cases.- (a) where it does not disclose a cause of action. 3. I have heard learned counsel for the parties and perused the entire material brought on record. 4. Before any discussion, Order 7, Rule 11 of CPC would be apt to reproduce, which is as under:- "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 written 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; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of Rule 9; [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers 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 from correcting the valuation or supplying the requisite stamp-papers, 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.]" 5. It is a trite law that while considering an application under Order VII, Rule 11, CPC, the Court has to examine the averments in the plaint and the pleas taken by the defendants in its written statements would be irrelevant. Reference may be made to Bhau Ram v. Janak Singh (2012) 8 SCC 701 : ( AIR 2012 SC 3023 ), wherein it is held as under:-- "15. Reference may be made to Bhau Ram v. Janak Singh (2012) 8 SCC 701 : ( AIR 2012 SC 3023 ), wherein it is held as under:-- "15. The law has been settled by this Court in various decisions that while considering an application under Order 7, Rule 11, CPC, the court has to examine the averments in the plaint and the pleas taken by the defendant in the written statement would be irrelevant, [vide C. Natrajan v. Ashim Bai and another, (2007) 14 SCC 183 :( AIR 2008 SC 363 ); Ram Prakash Gupta v. Rajiv Kumar Gupta and others, : (2007) 10 SCC 59 : (AIR Online 2007 SC 48); Hardesh Ores (P) Ltd. v. Hede and Company, (2007) 5 SCC 614 : (2007 (4) AIR Bom R 420); Mayar (H.K.) Ltd. and others v. Owners and Parties, Vessel M.V. Fortune Express and others, (2006) 3 SCC 100 : ( AIR 2006 SC 1828 ); Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and Others, (2004) 3 SCC 137 : ( AIR 2004 SC 1801 ); Saleem Bhai and others v. State of Maharashtra and others, (2003) 1 SCC 557 : (ATR 2003 SC 759)]. The above view has been once again reiterated in the recent decision of this Court in The Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman v. M/s. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, 2012 (6) JT 149 ." 6. Reverting to the facts of the present case, the plaintiffs have taken a specific plea in paragraph 9 that the plaintiffs have suffered a loss of Rs. 50,000/- because the defendants Nos. 1 and 2 have demolished the shop in khet No. 1912 and 1913, and have raised illegal construction by possessing khet No. 1914 and 1915 in village Dadgaliya, Tehsil Ranikhet. For convenience, paragraph 9 of the plaint is extracted hereunder:- hindi 7. On a meaningful reading of the plaint, it is found that the plaint averments clearly disclose the cause of action. As regards other grounds on which the rejection of the plaint has been sought by the defendant viz. Rule 11(b) and (d) of CPC, the trial court has rightly recorded a finding the suit is not barred by law as the defendant No. 3 is a formal party in the suit and no relief has been sought against it. As regards other grounds on which the rejection of the plaint has been sought by the defendant viz. Rule 11(b) and (d) of CPC, the trial court has rightly recorded a finding the suit is not barred by law as the defendant No. 3 is a formal party in the suit and no relief has been sought against it. The defendant No. 3 has filed the written statement and has also not raised any objection regarding notice u/S. 80, CPC. That apart, no prejudice is occasioned to the revisionist. 8. In view of the foregoing discussion, this Court does not find any illegality, perversity or irregularity in the order passed by the trial court dated 16.02.2019. Civil revision lacks merits and is dismissed accordingly. 9. No order as to costs.