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2020 DIGILAW 372 (MAD)

MONA BAI SAHU v. SANJIV KUMAR JAIN

2020-02-19

NANDITA DUBEY

body2020
ORDER Shri Pradeep Sahu, learned counsel for the petitioner. 1. This petition takes exception to the order dated 20.12.2019 passed by the Court of 23rd Civil Judge, Class-1, Jabalpur, whereby the application filed by the present petitioner/defendant under Order 7 Rule 11 CPC has been dismissed. 2. The contention of learned counsel for the petitioner/defendant is that the sale deed dated 18.05.1999 was in the knowledge of the plaintiff as in a suit filed earlier by his wife the said fact has been mentioned. The trial Court after considering the averments made in the application under Order 7 Rule 11 of CPC and reply filed by the plaintiff to the said application rejected the application on the ground that the documents produced by the defendant along with the application can be a matter of defence, however, the same cannot be considered at the stage of deciding the application under Order 7 Rule 11 CPC. 3. Learned counsel for the petitioner/defendant has placed reliance on a decision passed by the Apex Court in the case of Raghwendra Sharan Singh vs. Ram Prasanna Singh (dead) by LRs, Civil Appeal No.2960/2019, whereby the Hon'ble Court has reiterated the principles laid down in the cases of A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies (1989) 2 SCC 163 , Sopan Sukhdeo Sable v. Assistant Charity Commissioner (2004) 3 SCC 137 and held: "12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff." Order 7 Rule 11 of C.P.C. reads as under :- Rule 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 comply with the provision 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. A perusal of the aforesaid provisions shows that while considering the application under Order 7 Rule 11 of CPC only the plaint averments are required to be seen. Plaint can only be rejected if it squarely falls within the ambit and four corners of Order 7 Rule 11 of the C.PC. and not otherwise. 5. A perusal of the aforesaid provisions shows that while considering the application under Order 7 Rule 11 of CPC only the plaint averments are required to be seen. Plaint can only be rejected if it squarely falls within the ambit and four corners of Order 7 Rule 11 of the C.PC. and not otherwise. 5. A perusal of the plaint as Annexure A/5 filed in the petition shows that the plaintiff has specifically mentioned in para 8 and 9 that he came to know about the sale deed dated 18.05.1999 when the same was produced in a civil suit filed against his wife by the present petitioner/defendant and the cause of action accrued to him since then. Hence, the case law relied upon by the petitioner are not applicable to the facts of the case. 6. The pleadings and the documents on which the present petitioner is relying may be a good ground for defence, but they are not a part of the plaint averments nor filed along with the plaint, hence the same could not be considered. 7. The Supreme Court in the case of Kamla and others Vs. K.T. Eshwarasa and others (2008) 12 SCC 661 , after examining the relevant provisions of Order 7 Rule 11 of CPC. held as under:- "Order 7 Rule 11 (d) CPC has limited application. For its applicability it must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. What would be relevant for invoking Order 7 Rule 11(d) CPC are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. For the purpose of invoking the said provision, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be thesubject-matter of an order under the said provision. " 8. In the case of Rajesh Grover Vs. Smt. Rita Khurana & Ors. 2005 (4) RCR (Civil) 721, after examining the relevant provisions of Order 7 Rule 11 CPC, it was held : "The Court should be circumspect in rejecting a plaint at the threshold as it entails very serious civil consequences. " 8. In the case of Rajesh Grover Vs. Smt. Rita Khurana & Ors. 2005 (4) RCR (Civil) 721, after examining the relevant provisions of Order 7 Rule 11 CPC, it was held : "The Court should be circumspect in rejecting a plaint at the threshold as it entails very serious civil consequences. The Court should exercise this power only in those cases where it comes to the clear conclusion that any of the conditions enumerated in Clauses (a) to (f) are satisfied and it should be so done in exceptional-circumstances. The truthfulness of narration of facts in the plaint or the accuracy and integrity of this document. The written statements are not to be judged at the stage of rejection of plaint. That is a matter of evidence which the Court shall go into at the trial of the case. The weakness or the strength of the case of the parties is not to be judged at that stage. A distinction is to be drawn between rejection of a plaint and dismissal of a suit. " 9. The question of limitation is a mixed question of facts and law and cannot be decided without taking any evidence in this regard. 10. In the backdrop of aforesaid legal position, the learned trial Court has not committed any jurisdictional error or material irregularity in passing the impugned order. Resultantly, this revision being devoid of merits is hereby dismissed.