1. The present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the applicants-original defendants nos. 2 to 13 to quash and set aside the impugned order dated 18/10/2011 passed by the learned 2nd Additional Senior Civil Judge, Rajkot below Exh. 154 in Special Civil Suit No. 254/2001 by which the learned trial Court has dismissed the said application submitted by the applicants, which was submitted to dismiss the suit/plaint in exercise of the powers under Order 7 Rule 11(A) and/or Rule 11(D) of the Code of Civil Procedure.
2. Respondent no. 1-original plaintiff has instituted Special Civil Suit No. 254/2001 against the applicants and others in the Court of learned Principal Senior Civil Judge, Rajkot for specific performance of the 'satakhat'/agreement to sell dated 18/06/1997 and 25/08/1999 and also to quash and set aside the sale deeds executed in favour of original defendants nos. 22 to 48 and the 'satakhat' executed in favour of defendants nos. 14 and 15 and for permanent injunction and other consequential reliefs. In the said suit, respondent no. 1-original plaintiff submitted an application, Exh. 5 for interim injunction, which came to be rejected by the learned trial Court. It appears that being aggrieved and dissatisfied with the order passed by the learned trial Court below Exh. 5 respondent no. 1-original plaintiff preferred Appeal from Order No. 310/2009 and with the consent of the learned advocates appearing on behalf of the respective parties, inclusive of the learned advocate appearing on behalf of the applicants, the learned Single Judge by order dated 08/03/2010 disposed of the said Appeal from Order by directing the learned Civil Judge (Senior Division), Rajkot to decide and dispose of the aforesaid Special Civil Suit No. 254/2001 on merits as expeditiously as possible and preferably within six months with outer limit of nine months. It appears that thereafter, after a period of one year and four months of disposing of the Appeal from Order by this Court by which the learned Single Judge directed the learned trial Court to decide and dispose of the suit expeditiously and within six months with outer limit of nine months and after the said period was over, the applicants-original defendant nos. 2 to 13 submitted the application, Exh. 154 before the learned trial Court to dismiss the suit under Order 7 Rule 11(A) and/or Rule 11(D) of the Code of Civil Procedure alleging interalia that earlier respondent no. 1-original plaintiff instituted the suit against original defendants nos. 1 to 24 being Regular Civil Suit No. 661/2001 on the basis of the very agreement to sell and in the said suit original plaintiff did not pray for specific performance of agreement to sell and, therefore, the present suit is barred by Order 2 Rule 2 of the Code of Civil Procedure and, therefore, it was requested to dismiss the suit in exercise of powers under Order 7 Rule 11(A) and/or Rule 11(D) of the Code of Civil Procedure. The said application was opposed by the original plaintiff by submitting that the reliefs sought in both the suits are different. It was submitted that the earlier suit was only for permanent injunction against original defendants nos. 1 to 24 restraining them from alienating and/or transferring the suit land in question and the present suit has been filed for specific performance of the agreement to sell as well as to quash and set aside the sale deed executed in favour of other defendants and, therefore, the relief sought in the subsequent suit is not barred by Order 2 Rule 2 of the Code of Civil Procedure as alleged. It was also further submitted that even the application, below Exh. 154 to dismiss the suit is required to be dismissed on the ground of delay and on the ground that the same is belated, more particularly, when with the consent of the learned advocates appearing on behalf of the respective parties, inclusive of the applicants, the learned Single Judge had directed the learned trial Court to decide and dispose of the suit at the earliest and within the stipulated time but instead of proceeding further with the suit, the applicants have submitted the application only with a view to delay the trial and, therefore, it was requested to dismiss the said application. After considering the submissions made by the rival parties, the learned trial Court by impugned order dated 18/12/2011 has dismissed the said application, Exh. 154, which was submitted by the applicants-original defendants no.
2 to 13 to dismiss the suit in exercise of the powers under Order 7 Rule 11(A) and/or 11(D) of the Code of Civil Procedure. Being aggrieved and dissatisfied with the impugned order passed by the learned trial Court dated 18/10/2011 below Exh. 154 in Special Civil Suit No. 254/2011, the applicants-original defendants nos. 2 to 13 have preferred the present Civil Revision Application under Section 115 of the Code of Civil Procedure.
3. Shri Mihir Joshi, learned Senior advocate has appeared with Shri Vimal Patel, learned advocate appearing on behalf of the applicants-original defendants nos. 2 to 13. It is submitted by Shri Joshi, learned Senior advocate appearing on behalf of the applicants that the learned trial Court has materially erred in dismissing the application, Exh. 154. It is submitted that considering the fact that in the earlier suit, being Regular Civil Suit No. 661/2001, though the original plaintiff claimed right on the basis of the 'satakhat', no relief was sought for specific performance in the said suit and, therefore, the subsequent suit for specific performance of 'satakhat' is barred under Order 2 Rule 2 of the Code of Civil Procedure and, therefore, the learned trial Court ought to have dismissed the plaint/suit in exercise of the powers under Order 7 Rule 11 of the Code of Civil Procedure.
4. It is submitted by Shri Joshi, learned Senior advocate appearing on behalf of the applicants that as observed by the Hon'ble Supreme Court in the case of Saleem Bhai Vs. State of Maharashtra reported in (2003) 1 SCC 557 as well as the subsequent decision in the case of Sopan Sable Vs. Asst. Charity Commissioner reported in (2004) 3 SCC 137 the powers under Order 7 Rule 11 of the Code of Civil Procedure can be exercised at any stage of the suit but before the judgment is pronounced. Making the above submission and relying upon the above decisions, it is requested to allow the present Revision Application and quash and set aside the impugned order passed by the learned trial Court and consequently allow the application, Exh. 154 and dismiss the suit/plaint in exercise of the powers under Order 7 Rule 11 of the Code of Civil Procedure.
5. The present Civil Revision Application is opposed by Shri Anshin Desai, learned advocate appearing on behalf of respondent no. 1-original plaintiff. It is submitted that the application submitted by the applicants under Order 7 Rule 11 of the Code of Civil Procedure was not required to be entertained and/or considered as the same was filed belatedly i.e after a period of 10 years of filing the suit, more particularly, the same was submitted after the learned Single Judge passed an order in Appeal from Order No. 310/2009 dated 08/03/2010 directing the learned trial Court to decide and dispose of the suit finally within a period of six months with outer limit of 9 months. It is submitted that instead of proceeding further with the suit the applicants submitted the application, Exh. 154 only with a view to delay the hearing of the suit, which the learned trial Court was required to decide and dispose of within the stipulated time as directed by the learned Single Judge in Appeal from Order No. 310/2009. It is further submitted by Shri Desai, learned advocate appearing on behalf of respondent no. 1-original plaintiff that the order passed by the learned Single Judge in Appeal from Order No. 310/2009 was with the consent of the learned advocates appearing on behalf of the applicants also. It is further submitted by Shri Desai, learned advocate appearing on behalf of respondent no. 1- original plaintiff that even on merits also the learned trial Court has not committed any error and/or illegality in dismissing the application, Exh. 154 and in not dismissing the suit/plaint in exercise of the powers under Order 7 Rule 11 of the Code of Civil Procedure by holding that the suit is not barred by Order 2 Rule 2 of the Code of Civil Procedure. It is submitted that the learned trial Court has rightly observed that the suit was not barred by Order 2 Rule 2 of the Code of Civil Procedure. It is submitted that the earlier suit was for permanent injunction restraining original defendants nos. 1 to 24 from disposing of the suit land in question. It is submitted that in the said suit it was pointed out that the property was transferred in favor of other defendants and therefore present suit has been filed for specific performance of the agreement to sell as well as to quash and set aside the sale deed in favor of other defendants. It is further submitted that in any case whether the subsequent suit is barred by Order 2 Rule 2 of the Code of Civil Procedure is a question, which is required to be considered on evidence at the time of trial and, therefore, the plaint is not required to be rejected in exercise of the powers under Order 7 Rule 11(D) of the Code of Civil Procedure. In support of the above submission, he has relied upon the decision of the Hon'ble Supreme Court in the case of Alka Gupta Vs. Narender Kumar Gupta reported in (2010) 10 SCC 141.
6. Shri Desai, learned advocate appearing on behalf of respondent no. 1-original plaintiff has also relied upon the decision of the Hon'ble Supreme Court in the case of Ram Prakash Gupta Vs. Rajiv Kumar Gupta and Ors reported in (2007)10 SCC 59 in support of his submission that the application submitted by the applicants to reject the plaint in exercise of the powers under Order 7 Rule 11(D) of the Code of Civil Procedure was not required to be entertained as the same was submitted belatedly and at a belated stage. It is submitted that in the said decision, the Hon'ble Supreme Court has disapproved the rejection of the plaint in exercise of the powers under Order 7 Rule 11 of the Code of Civil Procedure at a belated stage after filing of the written statement; framing of the issues and the cross examination. It is submitted that in the said decision the Hon'ble Supreme Court has also considered the decisions of the Hon'ble Supreme Court in the case of Saleem Bhai (Supra) as well as in the case of Sopan Sikhdeo Sable (Supra) relied upon by the learned Counsel appearing on behalf of the applicants. Making the above submissions and relying upon the above decisions, it is requested to dismiss the present petition.
7. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the present Civil Revision Application has been preferred by the applicants-original defendants nos. 2 to 13 to quash and set and aside the impugned order passed by the learned trial Court rejecting the application submitted by the applicants to dismiss the plaint in exercise of powers under Order 7 Rule 11(A) and/or 11(D) of the Code of Civil Procedure mainly on the ground that the suit is barred by res judicata. It is required to be noted that the said application has been submitted after a period of 10 years of filing the suit and after the applicants submitted the written statement and after the learned trial Court framed the issues. It is also required to be noted that the learned Single Judge of this Court has passed an order dated 08/03/2010 in Appeal from Order No. 310/2009, in presence of the learned advocates appearing on behalf of the respective parties and with the consent of the learned advocates appearing on behalf of the respective parties, directing the learned trial Court to decide and dispose of Special Civil Suit No. 254/2001 on merits as expeditiously as possible and preferably within six months with outer limit of 9 months and instead of proceeding further with the said suit, the applicants preferred the application, Exh. 154, which has been dismissed by the learned trial Court by the impugned order. It is required to be noted that the application, Exh. 154 has been submitted by the applicants on 16/07/2011 i.e. much after expiry of the period fixed by the learned Single Judge to dispose of the main suit. Thus, it appears that the applicants have preferred the application, Exh. 154 only with a view to delay the hearing of the suit, which was as such required to be disposed by the learned trial Court on or before March, 2011. Considering the aforesaid facts and circumstances of the case, the learned trial Court has rightly rejected the application, Exh.
154 and has rightly refused to reject the plaint under Order 7 Rule 11(A) and/or 11(D) of the Code of Civil Procedure.
8. Shri Mihir Joshi, learned Senior advocate appearing on behalf of the applicants has vehemently submitted that as held by the Hon'ble Supreme Court in the case of Saleem Bhai (Supra) and Sopan Sable (Supra) the powers under Order 7 Rule 11 of the Code of Civil Procedure can be exercised at any stage of the suit but before the judgment is pronounced. However, considering the aforesaid two decisions, it appears that there is no absolute proposition of law laid down by the Hon'ble Supreme Court in the said decisions that even the application under Order 7 Rule 11 of the Code of Civil Procedure is required to be entertained even if submitted belatedly i.e. after a period of 5 to 10 years of filing of the suit. It is to be noted that as such the dispute before the Hon'ble Supreme Court in the case of Saleem Bhai (Supra) was that before filing the written statement, the original defendant submitted the application to reject the plaint under Order 7 Rule 11 of the Code of Civil Procedure and during pendency of the said application, the original plaintiffs submitted the application under Order 8 Rule 10 of the Code of Civil Procedure to pronounce the judgment in the suit as the original defendants did not file the written statement and the learned trial Court dismissed both the applications and the learned trial Court deferred the hearing of the application submitted under Order 7 Rule 11 of the Code of Civil Procedure and dismissed the application submitted by the original plaintiff to pronounce the judgment and directed the original defendants to file the written statement and to that the Hon'ble Supreme Court has held that the learned trial Court ought to have considered the application under Order 7 Rule 11 of the Code of Civil Procedure as while deciding the application under Order 7 Rule 11 of the Code of Civil Procedure, the averments in the plaint only are required to be considered and not the pleas taken in the written statement. As such there was no controversy before the Hon'ble Supreme Court in the said decision that whether the application under Order 7 Rule 11 of the Code of Civil Procedure can be preferred belatedly. Similarly, even the decision of the Hon'ble Supreme Court in the case of Sopan Sable (Supra) also will not be applicable to the facts of the present case. On the contrary, in the subsequent decision, the Hon'ble Supreme Court in the case of Ram Prakash Gupta (Supra) considering the aforesaid two decisions of the Hon'ble Supreme Court in the case of Saleem Bhai (Supra) and in the case of Sopan Sable (Supra) has specifically disapproved the rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure at a belated stage after filing of the written statement, framing of the issues and cross examination.
9. Even considering the statement and the object of Order 7 Rule 11 of the Code of Civil Procedure, it appears that the plaint can be rejected at the threshold on the grounds set out under Order 7 Rule 11 of the Code of Civil Procedure so as to see that the original defendants may not have to face the gamut of the litigation unnecessarily, even if the suit is to be found to be not maintainable and/or the suit is dismissed under Order 7 Rule 11 of the Code of Civil Procedure and, therefore, such powers are to be exercised at the earliest and not after a period of 10 years of filing of the suit.
10. Considering the decision of the Hon'ble Supreme Court in the case of Alka Gupta (Supra) the plaint is not required to be rejected on the ground that the suit is barred by res judicata. In the said decision, the Hon'ble Supreme Court has specifically held that unless the defendants pleads the bar under Order 2 Rule 2 of the Code of Civil Procedure and issue is framed focusing the parties on that bar to the suit, obviously the Court cannot examine or reject the suit on that ground. It is further held that the pleading in the earlier suit should be exhibited and/or marked by consent or atleast admitted by both parties and the original plaintiff should have an opportunity to explain or demonstrate that the second suit was based on a different cause of action. It is further observed and held by the Hon'ble Supreme Court in the said decision that while considering whether a second suit by a party is barred by Order 2 Rule 2 of the Code, all that is required to be seen is whether the reliefs claimed in both the suits arose from the same cause of action and the Court is not expected to go into the merits of the claim and decide the validity of the second claim. In paragraph 27 the Hon'ble Supreme Court has further held as under;
“27. The Code of Civil Procedure is nothing but an exhaustive compilation-cum-enumeration of the principles of natural justice with reference to a proceeding in a Court of law. The entire object of the Code is to ensure that an adjudication is conducted by a Court of law with appropriate opportunities at appropriate stages. A civil proceeding governed by the Code will have to be proceeded with and decided in accordance with law and the provisions of the Code, and not on the whims of the Court. There are no short-cuts in the trial of suits, unless they are provided by law. A civil suit has to be decided after framing issues and trial permitting the parties to lead evidence on the issues, except in cases where the Code or any other law makes an exception or provides any exemption.”
11. Considering the aforesaid decision of the Hon'ble Supreme Court in the case of Alka Gupta (Supra) and considering the facts of the case on hand it prima facie appears to the Court that the plaint is not required to be rejected in exercise of powers under Order 7 Rule 11 of the Code of Civil Procedure on the ground that the same is barred by res judicata i.e. under Order 2 Rule 2 of the Code of Civil Procedure. It prima facie appears that the cause of action in filing the earlier suit, which was filed for permanent injunction restraining the original defendants from transferring the suit land was altogether different than that pleaded in the second suit. In any case, the aforesaid questions are required to be considered at the time of trial considering the reliefs prayed in both the suits and considering the cause of action pleaded in both the suits. Considering the aforesaid facts and circumstances of the case, it cannot be said that the learned trial Court has committed any error and/or illegality in dismissing the application submitted by the applicants rejecting the plaint under Order 7 Rule 11 of the Code of Civil Procedure on the ground that there is bar under Order 2 Rule 2 of the Code of Civil Procedure.
12. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application fails and the same deserves to be dismissed and is accordingly dismissed. Notice is discharged. Ad-interim relief granted earlier, if any stands vacated forthwith. No cost.
(M.R. SHAH, J.) siji