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2025 DIGILAW 994 (HP)

Subhash Chand v. Bhupinder Singh

2025-05-13

VIVEK SINGH THAKUR

body2025
JUDGMENT : Vivek Singh Thakur, J. 1. Appellants herein are defendants in Civil Suit preferred by respondent No.1. Respondent No.2 is proforma defendant No.7 in the Civil Suit. 2. Present appeal has been preferred by appellants-defendants against judgment dated 08.05.2024, passed by District Judge, Shimla, H.P., in Case No. 17-S/13 of 2022, titled as Bhupinder Singh vs. Subhash Chand and others, whereby order dated 11.07.2022 passed by Civil Judge, Court No.7, Shimla, rejecting the plaint under Order 7 Rule 11 (d) CPC in Civil Suit No. 38/1 of 2017, titled as Bhupinder Singh vs. Subhash Chand and others, has been set aside and matter has been remanded for disposal of application under Order 7 Rule 11 CPC preferred by the defendants afresh, in accordance with law, but after ensuring service of and giving opportunity to defendant No.7. 3. I have heard learned counsel for the parties and have also gone through the material on record. 4. Parties, hereinafter, are being referred as per their status in the civil suit, for convenience. 5. Brief facts of the case are that partition proceedings under H.P. Land Revenue Act, 1954 (hereinafter referred to as ‘Revenue Act’) between parties were concluded in Case No.25/IX- 2013 vide order dated 20.05.2014 and instrument of partition dated 07.09.2015 was drawn by Assistant Collector 1 st Grade (Rural), Shimla. Appeal No.11-VIII/2014, preferred by the plaintiff against the aforesaid order and instrument of partition, was dismissed by Sub Divisional Collector (Rural), Shimla, vide order dated 22.02.2015. 6. Plaintiff filed a Civil Suit No.38/1 of 2017, titled as Bhupinder Singh vs. Subhash Chand and others, assailing the aforesaid orders passed by the Assistant Collector 1 st Grade and Sub Divisional Collector, seeking declaration that these orders had no consequence on the rights of the plaintiff being illegal, null and void, wrong and inoperative against the plaintiff. 7. Appellants were arrayed as defendants, whereas, respondent No.2 was arrayed as proforma defendant. Notice was issued to the defendants, but not to the proforma defendant, by the Trial Court. After service, defendants preferred applications under Order 7 Rule 11 CPC on the ground that suit was barred by law under the provisions of Section 171 (2) of the Revenue Act. The application was contested by the plaintiff by filing reply. 8. Notice was issued to the defendants, but not to the proforma defendant, by the Trial Court. After service, defendants preferred applications under Order 7 Rule 11 CPC on the ground that suit was barred by law under the provisions of Section 171 (2) of the Revenue Act. The application was contested by the plaintiff by filing reply. 8. After considering pleadings in the plaint and documents filed therewith, Civil Judge, by discussing the contents of the plaint and provisions of law especially Section 171 of the Revenue Act, allowed the applications and rejected the plaint under Order 7 Rule 11(d) of CPC with direction to return the original documents filed with the plaint to the plaintiff after retaining photocopies thereof. 9. The aforesaid order was assailed by the plaintiff by filing appeal before the District Judge. The District Judge in the impugned order, though has referred averments made in the plaint, applications under Order 7 Rule 11 CPC as well as provisions of Order 7 Rule 11 CPC and Section 171 of the Revenue Act, however, instead of returning finding on merits with respect to reasons assigned by the Civil Judge for rejecting the plaint, has allowed the appeal on sole ground that defendant No.7 was not served and given opportunity of being heard before deciding application under Order 7 Rule 11 (d) CPC. 10. The District Judge, after recording the fact that proforma defendant No.7 was neither summoned nor heard before passing of the impugned order, has opined that defendant No.7 was condemned unheard. According to District Judge, defendant No.7, was joined as a party in the suit because his presence was necessary in order to enable the Court to adjudicate upon the matter in controversy between the parties spectrally and completely. It has also been observed by the District Judge that necessary party is included for having interest in the subject matter of the lis and for necessity of involvement of such party for complete adjudication of the issue. Further that, doctrine and principles of natural justice need to be adhered to, and Court cannot decide against the right of one party without giving proforma defendant a hearing or an opportunity to represent his case in the manner known to law. 11. Further that, doctrine and principles of natural justice need to be adhered to, and Court cannot decide against the right of one party without giving proforma defendant a hearing or an opportunity to represent his case in the manner known to law. 11. With aforesaid reasoning, it has been held that deciding the application in absence of defendant No.7 is bad in the eyes of law and liable to be set aside. Accordingly, District Judge has set aside order dated 11.07.2022 passed by the Civil Judge and remanded the matter to the Civil Judge for deciding afresh after affording opportunity of being heard to proforma defendant No.7. 12. The aforesaid judgment passed by the District Judge was assailed by the defendants by filing CMPMO No.405 of 2024 invoking provisions of Article 227 of the Constitution of India. However, lateron, CMPMO No.405 of 2024 was dismissed as withdrawn vide order dated 26.07.2024 with liberty to the defendants to avail appropriate remedy available to them under law because, under Order 43 Rule 1(u) of CPC, appeal lies against remand order passed by the District Judge under Order 41 Rule 23 CPC. 13. In aforesaid facts and circumstances, present first appeal against first order has been preferred by the defendants by invoking provisions of Order 43 Rule 1 (u) CPC. 14. Learned counsel for the defendants has contended that District Judge has not set aside the order passed by the Civil Judge on merits, but on sole ground that application under Order 7 Rule 11 (d) CPC has been considered and decided without summoning defendant No.7 causing prejudice to defendant No.7 for his absence and, therefore, he has contended that impugned order is not sustainable being contrary to the settled law. Learned counsel for the defendant-petitioner has further submitted that presence of defendant No.7 was not necessary for passing an order under Order 7 Rule 11 CPC especially when suit filed by the plaintiff was barred under law as per provisions of Section 171 of the Revenue Act. 15. Learned counsel for the plaintiff has supported the judgment passed by the District Judge for the reasons assigned by the District Judge therein. 16. Order 7 Rule 11 reads as under:- “11. Rejection of plaint. 15. Learned counsel for the plaintiff has supported the judgment passed by the District Judge for the reasons assigned by the District Judge therein. 16. Order 7 Rule 11 reads 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 returned 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-paper 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 form correcting the valuation or supplying the requisite stamp-paper, 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.” 17. In T. Arivandandam vs. T.V. Satyapal and another, (1977) 4 SCC 467 , Supreme Court has observed that in case case is made out for rejection of plaint under Order 7 Rule 11 CPC, Trial Court must pass an order rejecting the plaint by taking into consideration provisions of Order 7 Rule 11 CPC. It implies that for passing an order under Order 7 Rule 11 CPC, filing an application is not necessary. 18. The Supreme Court in K. Akbar Ali vs. K. Umar Khna and others, (2021) 14 SCC 51 , has observed as under:- “5. It is well settled that while considering an application under Order 7 Rule 11 of the CPC, the question before the Court is whether the plaint discloses any cause of action or whether the suit is barred by any law, on the face of the averments contained in the plaint itself. It is well settled that while considering an application under Order 7 Rule 11 of the CPC, the question before the Court is whether the plaint discloses any cause of action or whether the suit is barred by any law, on the face of the averments contained in the plaint itself. While considering an application under Order 7 Rule 11 of the CPC the Court is not to look into the strength or weakness of the case of the plaintiff or the defence raised by the defendant. … … .. 7. In any case, an application under Order 7 Rule 11 of the CPC for rejection of the plaint requires a meaningful reading of the plaint as a whole. As held by this Court in ITC v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70 , clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Similarly the Court must see that the bar in law of the suit is not camouflaged by devious and clever drafting of the plaint. Moreover, the provisions of Order VII Rue 11 are not exhaustive and the Court has the inherent power to see that frivolous or vexatious litigations are not allowed to consume the time of the Court.” 19. The Supreme Court in Patil Automation Private Limited and others vs. Rakheja Engineers Private Limited, (2022) 10 SCC 1 , after taking into consideration its earlier judgment in Madiraju Venkata Ramana Raju v. Peddireddigari Ramachandra Reddy, (2018) 14 SCC 1 , has held as under:- “Order VII Rule 11 is, in fact, silent about any such requirement. Since summon is to be issued in a duly instituted suit, in a case where the plaint is barred under Order VII Rule 11(d), the stage begins at that time when the court can reject the plaint under Order VII Rule 11. No doubt it would take a clear case where the court is satisfied. The Court has to hear the plaintiff before it invokes its power besides giving reasons under Order VII Rule 12. No doubt it would take a clear case where the court is satisfied. The Court has to hear the plaintiff before it invokes its power besides giving reasons under Order VII Rule 12. In a clear case, where on allegations in the suit, it is found that the suit is barred by any law, as would be the case, where the plaintiff in a suit under the Act does not plead circumstances to take his case out of the requirement of Section 12A, the plaint should be rejected without issuing summons. Undoubtedly, on issuing summons it will be always open to the defendant to make an application as well under Order VII Rule 11. In other words, the power under Order VII Rule 11 is available to the court to be exercised suo motu.(See in this regard, the judgment of this Court in Madiraju Venkata Ramana Raju (supra).” 20. From the provisions of Order 7 Rule 11 CPC and pronouncements of the Supreme Court referred supra, I am of the considered opinion that for passing an order under Order 7 Rule 11 CPC, filing of an application by the defendants, presence of all defendants or even either of the defendants is not necessary. For passing an order of rejection of plaint under Order 7 Rule 11 CPC, Court has to look into the pleadings in the plaint and documents filed therewith and nothing more or nothing less than that. Averments made in the written statement, if any, filed before raising issue or considering issue under Order 7 Rule 11 CPC, shall not be looked into for rejection of the plaint under Order 7 Rule 11 CPC. For this purpose, only and only plaint and documents filed therewith are to be considered. For exercising inherent power under this provision, power of the Court is not inhibited for want of filing of an application by the defendants. The Court can reject the plaint even at the threshold in terms of Order 7 Rule 11 CPC without issuing notices to the defendants. Therefore, absence of defendant No.7 in present matter is of no consequence. Order passed by the District Judge is on misconceived notion. 21. The Court can reject the plaint even at the threshold in terms of Order 7 Rule 11 CPC without issuing notices to the defendants. Therefore, absence of defendant No.7 in present matter is of no consequence. Order passed by the District Judge is on misconceived notion. 21. In present case, defendant No.7 is proforma defendant and there is not even a whisper in the plaint, for what reason he has been arrayed as party and how and in what manner he is going to be affected by the outcome of civil suit. There is nothing about him even in the prayer clause of the suit. Therefore, his presence or absence is immaterial, even if, had he been one of the defendants against whom relief has been claimed, then also, his absence, despite being such defendant shall have no impact on the inherent power of the Court to decide the application/issue under Order 7 Rule 11 CPC. 22. Under Order 7 Rule 11 CPC, the Court is empowered to pass an order for rejection of plaint, suo motu, without requirement of any application by the defendants, therefore, reasons assigned by the District Judge, for setting aside order passed by the Civil Judge rejecting the plaint, even in absence of one of the defendants, are not sustainable in the eyes of law, rather based on misconception. 23. In view of above discussion, present appeal is allowed and judgment dated 08.05.2024 passed by the District Judge in Case No.17-S/13 of 2022, is set aside and matter is remanded back to the District Judge for deciding the appeal afresh in the light of aforesaid observations, and also taking into consideration and responding to the reasons assigned by the Civil Judge for rejection of plaint being barred under law as per provisions of Section 171 of Revenue Act. 24. Parties are directed to appear before the District Judge on 26.05.2025. No fresh notice shall be issued to the parties. 25. Learned counsel for the parties are directed to ensure presence/representation of the parties before the District Judge on the aforesaid date. Failure in appearing before District Judge, shall invite adverse order. 26. Appeal is allowed and disposed of in aforesaid terms, so also pending application(s), if any.