Court No. - 3
Case :- FIRST APPEAL FROM ORDER No. - 2163 of 2018 Appellant :- Rajesh Jaiswal Respondent :- Smt. Geeta Singh And 2 Others Counsel for Appellant :- Devi Prasad Tripathi,Sanjay Tiwari
Hon'ble Pankaj Mithal,J. Hon'ble Rajiv Joshi,J.
Heard learned counsel for the defendant appellant.
In Original Suit No. 879 of 2009 the defendant appellant moved an application under Order 7 Rule 11 CPC for rejection of the plaint.
In the said suit even issue were framed and one of the issues is whether the suit is maintainable.
The court of first instance decided application under Section 7 Rule 11 CPC and issue no. 12 regarding maintainability of the suit together by the order dated 16.7.2014. It held that the suit is not maintainable and accordingly application under Order 7 Rule 11 CPC is allowed and the suit is dismissed.
The aforesaid order was challenged in appeal and the appellate court by the impugned order dated 18.1.2018 has allowed the appeal and remanded the matter to the court of first instance for decision on merits.
The rejection of the plaint under Order 7 Rule 11 CPC and the dismissal of the suit as not maintainable are two distinct things which are required to be decided on totally different aspects of the matter.
The plaint of a suit is liable to be rejected under Order 7 Rule 11 CPC on the basis of the plaint allegations alone on limited grounds mentioned in the aforesaid provision. Its decision is not dependent upon the defence taken in the written statement or any other material adduced by the parties. The application under Order 7 Rule 11 CPC is normally decided prior to the formulation of the issues in the suit which is done on exchange of pleadings.
The issue of the maintainability of the suit is one which is formulated after the pleadings have been exchanged and is generally dependent upon the evidence of the parties unless the issue is purely legal in nature.
Thus in view of the aforesaid legal position, the decision on application under Order 7 Rule 11 CPC in a suit where issues have been framed and parties have adduced evidence becomes irrelevant and virtually renders the application redundant.
The court of first instance in its order dated 16.7.2014 has not mentioned that any of the grounds as stipulated under Order 7 Rule 11 CPC exists for rejection of the plaint. In this scenario, if the appellate court has held that the court of first instance has erred in allowing the application under Order 7 Rule 11 CPC so as to dismiss the suit, it can not be held to be illegal.
Nonetheless, as the appellate court in remanding the matter has directed to decide the suit on merits, we are of the opinion that it had exceeded its jurisdiction, in as much as, the remand if any ought to have been for the decision on the application under Order 7 Rule 11 CPC or for re-deciding the issue of maintainability of the suit.
In the aforesaid facts and circumstances, we are of the opinion that the impugned appellate court dated 18.1.2018 has to be maintained but with a slight modification ie., by maintaining the order setting aside the judgment and order and decree dated 16.7.2014 and remanding it to the court of first instance for reconsideration of the application under Order 7 Rule 11 CPC afresh or to decide issue no. 12 with regard to maintainability of the suit in accordance with law if it is so necessary to decide it as preliminary issue but not with the direction to decide the suit on merits.
The court of first instance would complete the exercise in regard to above aspect most expeditiously, if possible, within a period of four months.
The appeal stands disposed of accordingly.
Order Date :- 26.4.2018 SKS