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2022 DIGILAW 138 (TS)

S. P. Sampathus Siva Sivani Educational Society v. S. Chandrodaya

2022-03-04

A.VENKATESHWARA REDDY

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ORDER : 1. This Civil Revision Petition is filed under Article 227 of the Constitution of India, assailing the order dated 28.06.2017 in IA No.1224 of 2016 in SOP No.490 of 2015 on the file of the II Additional District Judge, Ranga Reddy District at L.B. Nagar. 2. This application in IA No.1224 of 2016 was filed by the petitioner/respondent under Order-IX, Rule-7 read with Section 151 of the Civil Procedure Code, 1908 (for short ‘CPC’) to set aside the ex parte order dated 18.02.2016 and permit the petitioner/respondent to contest SOP No.490 of 2015. 3. Heard learned counsel on both sides. Perused the material placed on record. 4. The petitioner herein has filed this IA No.1224 of 2015 to set aside the ex parte order dated 18.02.2016 in SOP No.490 of 2015. Earlier they have filed IA No.1225 of 2016 under Order-VII, Rule 11 r/w Sec.151 of CPC to reject the SOP No.490 of 2015, as the same cannot be adjudicated under Section 23 of A.P. Societies and Registration Act 2001. However, during pendency of that application in IA No.1225 of 2016, the petitioner herein was set ex parte on the ground that they have failed to file their counter in SOP No.490 of 2015, consequently, IA No.1225 of 2016 was also dismissed. 5. The orders dated 07.09.2017 passed in IA No.1224 of 2016 in SOP NO.490 of 2015 by the learned II Additional District Judge, Ranga Reddy at L.B.Nagar are extracted as under for better appreciation: “As could be seen from the order dt: 28.06.17 IA 1224/16 filed O-9, R-7 is allowed subject to filing of counter on or before 18.07.17. But as seen from the record no counter filed by the respondent who filed IA 1224/16 thus treated as no counter in SOP 490/15. Consequently his application under O-7, R-11 as IA 1225/16 is also dismissed. Since IA 1225/16 is dismissed and no counter filed as per orders in IA 1224/16, thus the matter posted for petitioners evidence. Call on 24.10.17.” 6. Earlier on 28.06.2017, IA No.1224 of 2016 was conditionally allowed with a direction to file counter in the main SOP on or before 18.07.2017, failing which the petition stands dismissed. Since IA 1225/16 is dismissed and no counter filed as per orders in IA 1224/16, thus the matter posted for petitioners evidence. Call on 24.10.17.” 6. Earlier on 28.06.2017, IA No.1224 of 2016 was conditionally allowed with a direction to file counter in the main SOP on or before 18.07.2017, failing which the petition stands dismissed. Thus, since no counter was filed by the petitioner herein in SOP No.490 of 2015 and as the condition was not complied, that application in IA No.1224 of 2016 was dismissed and consequently, IA No.1225 of 2016 was also dismissed and the main SOP was posted for petitioner’s evidence. Now this order is under challenge through this civil revision petition. 7. The learned counsel for the petitioner vehemently contends that when an application under Order-VII, Rule-11 of CPC is filed for rejection of the plaint, unless that application is disposed of on merits, the trial Court is not justified in directing the petitioner herein to file counter in the main SOP. In that view of the matter, the order impugned is not sustainable and relied on the principles laid in the following decision: 8. In Saleem Bhai and others v. State of Maharashtra and others, (2003) 1 SCC 557 ; the Hon’ble Supreme Court of India held that for the purpose of deciding an application under Rule-11 (a) and (d) of Order-VII CPC, the averments in the plaint are germane and the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. Therefore, a direction to file the written statement without deciding the application under Order-VII, Rule 11 CPC cannot but be a procedural irregularity touching the exercise of jurisdiction of the trial court. The trial Court’s order, therefore, suffers from non-exercising of the jurisdiction vested in the Court as well as procedural irregularity. 9. The Hon’ble Supreme Court in R.K. Roja v. U.S. Rayudu and others, AIR 2016 SC 3282 also held that once an application is filed under Order-VII, Rule-11 of CPC, the Court has to dispose of the same before proceeding with the trial. There is no point or sense in proceeding with the trial of the case, in case the plaint is only to be rejected at the threshold. Therefore, the defendant is entitled to file an application for rejection before filing his written statement. There is no point or sense in proceeding with the trial of the case, in case the plaint is only to be rejected at the threshold. Therefore, the defendant is entitled to file an application for rejection before filing his written statement. In case, the application is rejected, the defendant is entitled to file his written statement thereafter. But, once an application for rejection is filed, the Court has to dispose of the same before proceeding with the trial. 10. In the case on hand, the petitioner herein was set ex parte in SOP No.490 of 2015. The petitioner has filed an application under Order-IX, Rule-7 of CPC to set aside the ex parte order and also filed another application under Order-VII, Rule-11 of CPC to reject the SOP No.490 of 2015. The trial Court has conditionally allowed the application under Order-IX, Rule-7 of CPC, vide IA No.1224 of 2016 subject to filing of the counter in SOP No.490 of 2015. Initially, that application was dismissed on the ground that the petitioner herein failed to file counter in SOP No.490 of 2015. Consequently, IA No.1225 of 2016 under Order-VII, Rule-11 CPC was also dismissed without adjudicating the matter. 11. From the principles laid in the above decision by the Hon’ble Supreme Court, filing of the written statement is suspended till decision on the application filed under Order-VII, Rule-11 of CPC. Such application under-VII, Rule-11 of CPC can be filed at any stage of the suit. It is an independent right of the defendant to point out any infirmity in the suit. However, at the cost of repetition of a settle principle, this Court feels the need to state that the only condition which the Courts must bear in mind at the time of adjudicating upon an application filed under Order-VII, Rule-11 CPC is that, the Court has to consider only the averments set forth in the plaint and the documents annexed therewith and must not look into those put forth in the written statement. When such an application is filed, the Court has to adjudge the same and dispose of it before it proceeds with the matter. 12. Reverting back to the facts of the present case, initially the petitioner herein was set ex parte as respondent in SOP No.490 of 2015 and they have filed an application under Order-IX Rule-7 of CPC to set aside the ex parte order. 12. Reverting back to the facts of the present case, initially the petitioner herein was set ex parte as respondent in SOP No.490 of 2015 and they have filed an application under Order-IX Rule-7 of CPC to set aside the ex parte order. Along with that application, another application under Order-VII, Rule-11 CPC was filed. Unfortunately, the trial Court has passed a conditional order in IA No.1224 of 2016 stating that the application was allowed subject to filing of counter in the main SOP No.490 of 2015 and on the premise that counter is not filed by the petitioner herein in SOP No.490 of 2015, that application in IA No.1224 of 2016 was dismissed, consequently, the application in IA No.1225 of 2016 under Order-VII, Rule-11 of CPC was also dismissed. 13. In such facts and circumstances of the case as indicated above, in my considered opinion, the conduct of the petitioner herein does not seem to be tainted with any foul-play or with a mala fide intention to delay the proceedings. The trial Court should have restored the application filed under Order-VII, Rule-11 CPC first and then proceeded with the enquiry, instead of passing conditional order in IA No.1224 of 2016 and dismissing such application. Thus, the Court below erred in dismissing the applications in IA Nos.1224 and 1225 of 2016 for non-compliance of conditional orders and the order impugned suffers from lack of exercise of jurisdiction by the Court below, warranting interference by this Court and it is liable to be set aside. 14. In the result, the Civil Revision Petition is allowed setting aside the order dated 28.06.2017 in IA No.1224 of 2016, consequently IA No.1224 of 2016 filed under Order-IX, Rule-7 of CPC stands allowed. Ex parte order dated 18.02.2016 passed against the petitioner, who is respondent in SOP No.490 of 2015, is set aside. IA No.1225 of 2016 filed under Order-VII, Rule-11 of CPC is hereby restored. The Court below is hereby directed to consider the application in IA No.1225 of 2016 on merits and dispose of the same within three months from the date of receipt of a copy of this order and thereafter, if necessary receive the counter/written statement of petitioner herein, who is the respondent in SOP No.490 of 2015, depending on the result of IA No.1225 of 2016. In the circumstances of the case, there shall be no order as to costs. In the circumstances of the case, there shall be no order as to costs. As a sequel, interlocutory applications, if any pending, shall stand closed.