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2023 DIGILAW 1272 (ALL)

Suresh Chand Goyal v. Mahesh Chand Agarwal

2023-05-09

NEERAJ TIWARI

body2023
JUDGMENT : 1. Heard learned counsel for the petitioner. 2. Present petition has been filed seeking following relief: "Issue a suitable order setting aside the impugned order dated 08.02.2023 passed by Additional District & Sessions Judge, Court No. 11, Agra in SCC Suit No. 88/2020(Mahesh Chand Agarwal vs. Bhagwan Devi Ice & Cold Storage Pvt. Ltd. and others)" 3. Learned counsel for the petitioner submitted that SSC Suit No. 88 of 2020 was filed against the petitioners-defendants, wherein, petitioners were impleaded as defendant Nos. 2 and 3. After receiving the notice, petitioners-defendants have preferred application under Order VII Rule 11 CPC for rejection of the plaint. The SCC Court vide order dated 08.02.2023 has deferred the decision upon the application under Order VII Rule 11 CPC with the observation that the same shall be decided on merits after receiving the evidence. 4. He firmly submitted that once the application under Order VII Rule 11 CPC has been filed, same has to be decided on the basis of plaint and no other material should have been considered. In support of his contention he has placed reliance upon the judgment of this Court in the matter in Civil Misc. Writ Petition No. 3825 of 2021: Smt. Archana Kanaujia And Anr. Vs. Pooja Educational and Social Development Trust And 6 Ors., decided on 20.09.2021, considering judgments of Apex Court in the matter of Azhar Hussain Vs. Rajiv Gandhi: 1986(Supp) SCC 315 and R. K. Roja Vs. Rayudu: (2016) 14 SCC 275 . He lastly submitted that impugned order dated 08.02.2023 is bad and contrary to the law laid down by the Courts, therefore the same is liable to be set aside. Since only legal question is involved, therefore, without inviting for counter affidavit, Court proceeded to decided the matter on merits. 5. I have considered the submission made by learned counsel for the petitioner, perused the record as well as judgment relied upon. 6. The law is very well settled on the point that once application under Order VII Rule 11 CPC has been filed, the same has to be decided before the commencement of the trial based upon the facts mentioned in the plaint only. This issue has been considered by this Court in the matter of Smt. Archana Kanaujia(Supra). Relevant paragraphs of the said judgment are quoted hereinbelow: "10. This issue has been considered by this Court in the matter of Smt. Archana Kanaujia(Supra). Relevant paragraphs of the said judgment are quoted hereinbelow: "10. The power conferred by Order VII Rule 11 is primarily to ensure that a suit which discloses no cause of action or is otherwise barred in law is brought to an end at the threshold. This obviates the courts from undertaking a full fledged trial and then ultimately coming to a conclusion either that the plaint discloses no cause of action or that the jurisdiction of the court stands ousted by law. The legislative policy underlying Order VII Rule 11 was pithily explained by the Supreme Court in Azhar Hussain Vs. Rajiv Gandhi reported in 1986 (Supp) SCC 315 in the following terms:- "12. Learned counsel for the petitioner has next argued that in any event the powers to reject an election petition summarily under the provisions of the Code of Civil Procedure should not be exercised at the threshold. In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation the court readily exercises the power to reject a plaint if it does not disclose any cause of action. Or the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexatious parts of the pleadings. Or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law. An order directing a party to strike out a part of the pleading would result in the termination of the case arising in the context of the said pleading. Or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law. An order directing a party to strike out a part of the pleading would result in the termination of the case arising in the context of the said pleading. The courts in exercise of the powers under the Code of Civil Procedure can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. The powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. And so that they can adjust their affairs on the footing that the litigation will not make demands on their time or resources, will not impede their future work, and they are free to undertake and fulfil other commitments. Such being the position in regard to matter pertaining to ordinary civil litigation, there is greater reason for taking the same view in regard to matters pertaining to elections. ........To wind up the dialogue, to contend that the powers to dismiss or reject an election petition or pass appropriate orders should not be exercised except at the stage of final judgment after recording the evidence even if the facts of the case warrant exercise of such powers, at the threshold, is to contend that the legislature conferred these powers without point or purpose, and we must close our mental eye to the presence of the powers which should be treated as non-existent. The court cannot accede to such a proposition. The court cannot accede to such a proposition. The submission urged by the learned counsel for the petitioner in this behalf must therefore be firmly repelled." (emphasis supplied). 11. The aforesaid proposition of law has been reiterated by the Hon'ble Apex Court in the case of R.K. Roja Vs. Rayudu reported in (2016) 14 SCC 275 . In the aforesaid judgment, following observations were made by the Hon'ble Apex Court :- "5. Once an application is filed under Order 7 Rule 11 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 (election petition in the present case) is only to be rejected at the threshold. Therefore, the defendant is entitled to file the application for rejection before filing his written statement. In case the application is rejected, the defendant is entitled to file his written statement thereafter (see Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557 ]). But once an application for rejection is filed, the court has to dispose of the same before proceeding with the trial court. To quote the relevant portion from para 20 of Sopan Sukhdeo Sable case [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137 ]: (SCC pp. 148-49). "20. ... Rule 11 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word "shall" is used, clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant." 6. In Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557 , this Court has also held that: (SCC p. 560, para 9). "9. ... In Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557 , this Court has also held that: (SCC p. 560, para 9). "9. ... a direction to file the written statement without deciding the application under Order 7 Rule 11 cannot but be a procedural irregularity touching the exercise of jurisdiction by the trial court." However, we may hasten to add that the liberty to file an application for rejection under Order 7 Rule 11 CPC cannot be made as a ruse for retrieving the lost opportunity to file the written statement. 7. Apparently, in the present case, it is seen that Annexure P-4, affidavit dated 15-3-2015, with a prayer ... "to dismiss the present election petition under Order 7 Rule 11 CPC...", was filed within thirty days of the receipt of the summons in the election petition. However, the court was not inclined to consider the same in the absence of a formal application, and thus, Annexure P-5, Application No. EA No. 222 of 2016 was filed on 22-2-2016 leading to the impugned order, posting the application for consideration at the time of final hearing. 8. The procedure adopted by the court is not warranted under law. Without disposing of an application under Order 7 Rule 11 CPC, the court cannot proceed with the trial. In that view of the matter, the impugned order is only to be set aside. Ordered accordingly." (emphasis supplied) 12. From the discussion made above as well as the decisions as stated above, it is clear that the court below has committed a manifest and grave error of law. A litigation which is vexatious or is otherwise contended to be barred by law cannot be permitted to proceed to a full length trial. This would clearly be contrary to the legislative intendment underlying under Order VII Rule 11. Adoption of a course of action as has been done by the court below in the facts of the present case would clearly do injustice to a valuable right conferred upon a defendant by the aforementioned provision." 7. From the perusal of facts and judgments mentioned hereinabove, it is apparently clear that it is required on the part of the Court to decide first, application filed under Order VII Rule 11 CPC and thereafter proceed to decide the suit in case the said application is rejected. From the perusal of facts and judgments mentioned hereinabove, it is apparently clear that it is required on the part of the Court to decide first, application filed under Order VII Rule 11 CPC and thereafter proceed to decide the suit in case the said application is rejected. The purpose of legislation is to avoid unnecessary dragging of legal proceeding in case the application under Order VII Rule 11 has been filed. 8. So far as present case is concerned, from the perusal of record as well as impugned order dated 08.02.2023, it is apparently clear that after filing of application under Order VII Rule 11 CPC, instead of deciding the same, the Court kept it pending for disposal at the time of final hearing, which cannot be accepted in light of facts and law discussed hereinabove. 9. Therefore, in view of facts and circumstances of the case, the impugned order dated 08.02.2023 is hereby quashed. Petition is allowed with direction to SCC Court to decide the application of petitioner under Order VII Rule 11 at the earliest after obtaining objection from the opposite parties.