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2024 DIGILAW 1777 (ALL)

Om Prakash Upadhya v. Vijay Kumar

2024-07-31

NEERAJ TIWARI

body2024
JUDGMENT : (Neeraj Tiwari, J.) : 1. Heard Sri Pramod Jain, learned Senior Counsel, assisted by Sri Ayush Jain and Sri Ram Prakash Srivastava, learned counsel for the petitioner. 2. Present petition has been followed with the following prayer: “(a) To set-aside the impugned judgment and order dated 21.04.2022 passed by Additional Judge (Senior Division) Court No. 4, Meerut and the impugned judgement and order dated 06.01.2024 passed by Additional District Judge, Court No. 16, Meerut and allow the application dated 06.11.2017 filed by the defendant-petitioner under order 7 Rule 11 of the Code of Civil Procedure, 1908.” 3. Learned Senior Counsel submitted that respondent-plaintiff has filed Original Suit No. 784 of 1999, upon which petitioner has filed application under Order VII Rule 11, CPC on the ground that suit is barred by law, which was rejected vide impugned judgment and order dated 21.04.2022. Against order dated 21.04.2022, petitioner-defendant filed Civil Revision No. 21 of 2022, which was also dismissed vide second impugned order dated 06.01.2024. 4. He next submitted that earlier the very same respondent-plaintiff has filed Original Suit No. 276 of 1992 (Virendra and Others Vs. Om Prakash Upadhya), which was dismissed in default vide order dated 13.07.1992. After dismissal of the Suit No. 276 of 1992, respondent-plaintiff filed application under Order IX Rule 9 CPC, being Misc. Case No. 116 of 1992 to recall the order dated 13.07.1992, which was also dismissed in default vide order dated 22.02.1994. He next submitted that to recall the order dated 22.02.1994 respondent-plaintiff has filed application under Section 151 CPC, being Misc. Case No. 25 of 1994, which was ultimately dismissed in default vide order dated 12.09.2003. He next submitted that respondent-plaintiff has never challenged the aforesaid orders before the higher court, therefore the aforesaid orders have attained finality. 5. He next submitted that for the very same cause of action, respondent-plaintiff has filed Original Suit No. 784 of 1999, upon which petitioner-defendant has filed application under Order VII Rule 11 CPC on the ground that suit is barred under the provision of Order IX Rule 9 CPC. He next submitted that in the Original Suit No. 784 of 1999, it is admitted that petitioner-defendant is not having the possession over the property in dispute, therefore, under Section 37 & 41 of Specific Relief Act, 1963 (hereinafter, referred to as, ‘Act, 1963’), no relief may be granted to him. He next submitted that in the Original Suit No. 784 of 1999, it is admitted that petitioner-defendant is not having the possession over the property in dispute, therefore, under Section 37 & 41 of Specific Relief Act, 1963 (hereinafter, referred to as, ‘Act, 1963’), no relief may be granted to him. He lastly submitted that without considering the aforesaid facts, application of petitioner under Order VII Rule 11 CPC has been rejected vide impugned order dated 21.04.2022. He firmly submitted that in light of Order IX Rule 9 CPC, once the suit is already dismissed, this suit is not maintainable, therefore, it is required on the part of the Additional Civil Judge(S.D.), Court No. 4, Meerut to allow the application of petitioner under Order VII Rule 11 CPC and reject the Original Suit No. 784 of 1999. Additional District Judge has also rejected the revision without considering aforesaid facts. In support of his contention, learned Senior Counsel placed reliance upon the judgment of Apex Court in the matters of Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal: 2017(13)SCC 174 and G. Nagaraj, Anr Vs. B.P. Mruthunjayanna & Ors.: 2023 LiveLaw(SC)311 and State of West Bengal vs. Union of India passed in Original Suit No.4 of 2021, delivered on 10.07.2024. 6. I have considered the submission advanced by learned Senior Counsel, perused the record and provision of law and judgments relied upon. 7. Petitioner-defendant has filed application under Order VII Rule 11(d) CPC, which is being quoted hereinbelow: “11. Rejection of plaint.-The plaint shall be rejected in the following cases:- (a)…………………………………………………………………………………….. (b)……………………………………………………………………………………. (c)…………………………………………………………………………………... (d) where the suit appears from the statement in the plaint to be barred by any law; (e)…………………………………………………………………………………….. (f)……………………………………………………………………………………..” 8. From the perusal of the aforesaid provision, it is required to see as to whether, from the averment made in the plaint, suit appears to be barred by any law or not. 9. In the plaint, respondent-plaintiff has stated that he is the owner of the property in question having symbolic possession. He has also given the reference of Suit No. 276 of 1992, which is shown to be pending for adjudication. Therefore, from the perusal of the averment made in the plaint, it cannot be said that this suit is barred by any law, unless defence so raised by the petitioner-defendant is taken into consideration. 10. He has also given the reference of Suit No. 276 of 1992, which is shown to be pending for adjudication. Therefore, from the perusal of the averment made in the plaint, it cannot be said that this suit is barred by any law, unless defence so raised by the petitioner-defendant is taken into consideration. 10. I have also perused the order IX Rule 9 CPC, which is being quoted hereinbelow: “9. Decree against plaintiff by default bars fresh suit.—(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.” 11. The above quoted provision provides that decree against the plaintiff by default bars fresh suit. There is no dispute on the point that in case a suit is instituted, another suit for the same cause of action is not maintainable, but without putting all these facts in defence by way of filing written statement, the same cannot be seen from application Under Order VII Rule 11 CPC. From the perusal of the plaint, it does not transpire that another suit filed earlier was for the same cause of action and dismissed in default, therefore, plea of Order IX Rule 9 cannot be seen at this stage without filing of written statement by the petitioner-defendant. 12. Now, I am coming to another argument about the possession of respondent-plaintiff over the property in dispute as well as provision of Section 37 and 41 of the Act, 1963. Section 37 and 41 of the Act, 1963 are being quoted hereinbelow: “37. 12. Now, I am coming to another argument about the possession of respondent-plaintiff over the property in dispute as well as provision of Section 37 and 41 of the Act, 1963. Section 37 and 41 of the Act, 1963 are being quoted hereinbelow: “37. Temporary and perpetual injunctions.—(1) Temporary injunctions are such as are to continue until a specific time, or until the further order of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908). (2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff. 41. Injunction when refused.—An injunction cannot be granted— (a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings; (b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought; (c) to restrain any person from applying to any legislative body; (d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter; (e) to prevent the breach of a contract the performance of which would not be specifically enforced; (f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance; (g) to prevent a continuing breach in which the plaintiff has acquiesced; (h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust; 1 [(ha) if it would impede or delay the progress or completion of any infrastructure project or interfere with the continued provision of relevant facility related thereto or services being the subject matter of such project.] (i) when the conduct of the plaintiff or his agents has been such as to disentitle him to be the assistance of the court; (j) when the plaintiff has no personal interest in the matter.” 13. From the perusal of Section 37 & 41of the Act, 1963 it does not transpire that there is any provision or any bar for filing fresh suit in case there is no possession over the property in dispute. 14. In the plaint, title over the property in dispute is claimed along with symbolic possession, therefore, in light of Section 37 & 41of the Act, 1963, it cannot be said to be a bar under the provision of said sections. 15. I have also perused judgment and order of Hon’ble Apex Court in the matter of Madanuri Sri Rama Chandra Murthy(Supra). Relevant paragraph of the said judgment is being quoted hereinbelow: “8. The plaint can be rejected under Order VII Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order VII Rule 11, CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order VII Rule 11, CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order VII Rule 11 of CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when, the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order VII Rule 11 of CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.” 16. From the perusal of the aforesaid judgment, it is apparently clear that while deciding the application under Order VII Rule 11 CPC, only plaint has to be seen and in case allegation made in the plaint are taken to be correct as a whole on their face value and it shows that suit is barred by any law, only then application for rejection of plaint under Order VII Rule 11 CPC can be entertained. 17. In the present case, from the perusal of plaint, it does not transpire that it is barred by any law. 18. I have also considered judgment of Hon’ble Apex Court in the matter of G. Nagaraj(Supra). Relevant paragraph of the said judgment is being quoted hereinbelow: “6. The law is well settled. For dealing with an application under Rule 11 of Order VII CPC, only the averments made in the plaint and the documents produced along with the plaint are required to be seen. The defence of the defendants cannot be even looked into. When the ground pleaded for rejection of the plaint is the absence of cause of action, the Court has to examine the plaint and see whether any cause of action has been disclosed in the plaint.” 19. There is recent judgment of Apex Court in the matter of State of West Bengal vs. Union of India passed in Original Suit No.4 of 2021 in which Court has discussed about the Order 7 Rule 11 of CPC. There is recent judgment of Apex Court in the matter of State of West Bengal vs. Union of India passed in Original Suit No.4 of 2021 in which Court has discussed about the Order 7 Rule 11 of CPC. Relevant paragraph of the said judgments are quoted below:- “22. For appreciating the rival submissions, it will be relevant to refer to Order XXVI Rule 6 of the SC Rules, which reads thus: “Order XXVI Plaints ………… 6. The plaint shall be rejected:- (a) where it does not disclose a cause of action; (b) where the suit appears from the statement in the plaint to be barred by any law. 23. It can thus be seen that a plaint is liable to be rejected where it does not disclose a cause of action or where the suit appears from the statement in the plaint to be barred by any law. 24. As such, it could be seen that the provisions in Order XXVI Rule 6 (a) and (b) are analogous to the provisions in clauses (a) and (d) of Order VII Rule 11 of the CPC. 25. It is a settled position of law that, for considering objections under Order VII Rule 11 (a) and (d) of the CPC, what needs to be looked into is only the averments made in the plaint. It is well settled that if the averments made in theplaint are germane then the pleas taken by the defendant in the written statement would be wholly irrelevant at this stage. Reference in this respect could be made to the judgments of this Court in the cases of Saleem Bhai and Others v. State of Maharashtra and Others14, Sopan Sukhdeo Sable and Others v. Assistant Charity Commissioner and Others15, Bhau Ram v. Janak Singh and Others16 and Chhotanben and Another v. Kirtibhai Jalkrushnabhai Thakkar and Others17. 26. In view of the word ‘shall’ used in the provisions, a duty is cast on the court to examine as to whether the plaint is hit by any of the infirmities provided in the six clauses of Order VII Rule 11 of the CPC. A duty is cast on the court to reject the plaint even without the intervention of the defendant. Reference in this respect could be made to the judgment of this Court in the case of Sopan Sukhdeo Sable (supra). 27. A duty is cast on the court to reject the plaint even without the intervention of the defendant. Reference in this respect could be made to the judgment of this Court in the case of Sopan Sukhdeo Sable (supra). 27. It is further settled that the averments made in the plaint have to be read as a whole and not in isolation. Reference in this respect could be made to the judgment of this Court in the case of Kirtibhai Jalkrushnabhai Thakkar (supra).” 20. The Hon’ble Apex Court repeatedly taken the view that while deciding application under Order VII Rule 11 CPC only averment made in the plaint has to be seen and any defence cannot be taken into consideration. 21. In the present case, in light of discussion made hereinabove, it is apparently clear that from the perusal of averment made in the plaint there cannot be said to be bar of any provision of law for filing this suit, therefore I found no illegality or infirmity in the impugned orders dated 21.04.2022 & 06.01.2024. 22. Petition lacks merit and accordingly dismissed. 23. No order as to costs.