Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 7057 of 2019 Petitioner :- Ramesh Chandra Tiwari Respondent :- Additional Civil Judge And 4 Others Counsel for Petitioner :- Shikhar Awasthi
Hon'ble Manoj Kumar Gupta,J.
The instant petition is directed against the orders dated 09.08.2019 and 06.09.2019 passed by the trial court in Original Suit No. 89 of 2017 (Smt. Pratima Tiwari and others Vs. Ramesh Chandra Tiwari and others). The petitioner has also prayed for a direction to the trial court to decide application under Order 7 Rule 11 C.P.C filed by him expeditiously.
The plaintiff-respondents 2 to 5 instituted the suit for permanent injunction restraining the petitioner from transferring the suit property in favour of any person and also for restraining him from lifting compensation awarded in lieu of acquisition of joint family property to the exclusion of the plaintiffs. According to the plaint assertions, the suit property is joint family property of the plaintiffs and the petitioner as per family settlement held in 1995. The petitioner by misrepresenting himself to be sole owner is trying to lift the entire compensation and hence the suit.
The petitioner filed an application under Order 7 Rule 11 C.P.C praying for rejection of the plaint on the ground that notice under Section 88(2) of the U.P Awas Vikas Parishad Adhiniyam, 1965 (for short 'the Act') had not been given to defendant No. 3 i.e. U.P. Awas Evam Vikas Parishad (for short 'the Board') before the institution of the suit.
It is noteworthy that the petitioner had approached this Court in a petition under Article 227 of the Constitution with the prayer that his application under Order 7 Rule 11 C.P.C be directed to be decided. The petition was disposed of by this Court by order dated 13.05.2019 with the following direction:-
"The writ petition is disposed off directing the respondent no.2-Civil Judge (Senior Division), Court No.2 Kanpur Dehat to consider and decide the Application under Order VII Rule 11 of C.P.C. filed in Suit No.89 of 2017, expeditiously, in accordance with law, after affording notice and opportunity to all the parties, within a period of three months from the date of presentation of a certified copy of this order, if there is no other legal impediment.
It is made clear that this Court has not expressed any opinion on merits of the case and it is for the concerned authorities to decide the same in accordance with law."
The plaintiff-respondents thereafter filed application Ka-113 for deleting defendants 2 and 3 i.e U.P. Awas Evam Vikas Parishad and State of U.P from the array of parties. This was apparently done by the plaintiffs in order to get rid of the objection of the petitioner that the suit is not maintainable against defendant No. 3 for want of notice under Section 88(2) of the Act. The trial court by impugned order dated 09.08.2019 fixed a date for disposal of amendment application filed by the plaintiffs before deciding the application under Order 7 Rule 11 C.P.C. The petitioner filed an application seeking recall of order dated 09.08.2019 but it has also been rejected by order dated 06.09.2019 observing that there is no illegality in the previous order. It has been held that disposal of the amendment application first, would be in the interest of justice and would obviate unnecessary complications.
Learned counsel for the petitioner submits that once application under Order 7 Rule 11 was filed by the petitioner, the said application should have been decided before taking up any other application. In support of his submission, he has placed reliance on judgment of Supreme Court in Saleem Bhai Vs. State of Maharashtra, 2003( 1) SCC557 and another judgment of this Court reported in 2005( 3) AWC 2582, U.P Avas Evam Vikas Parishad Vs. Additional District Judge( 9th).
Section 88( 2) of the U.P Awas Evam Vikas Parishad Adhiniyam provides as under:-
"88 .(2) No suit shall be instituted against the Board, the Adhyaksh, the Housing Commissioner, the Tribunal, the prescribed authority or any member, officer or servant of the Board, in respect of any done or purported or intended to be done under this Act or any rule or regulation until the expiration of two months next after notice in writing has been delivered to, or left at the office of, the Board, the Adhyaksh, the Housing Commissioner, the Tribunal, the prescribed authority, or such officer or servant, as the case may be, stating the cause of action, the name and place of abode of the intending plaintiff, and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left."
In Saleem Bhai (supra), the Supreme Court was considering a case where the trial court had refused to decide application under Order 7 Rule 11 C.P.C before filing of the written statement. In paragraph 9 of the said judgment, the Supreme Court held as under :-
"A perusal of the O. VII, R.11. C.P.C makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under O. VII, Ru.11, C.P.C at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Cls. (a) and (d) of R.11 of O.VII, C.P.C, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under O.7 R. 11, C.P.C cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the Court as well as procedural irregularity. The High Court, however, did not advert to these aspects."
In U.P Avas Evam Vikas Parishad Vs. Additional District Judge( 9 th) (supra), this Court held that notice under Section 88(2) of the Act is mandatory and the suit filed without giving such notice is not maintainable.
Undoubtedly, the application under Order 7 Rule 11 C.P.C is to be decided on basis of plaint assertions and written statement is not required to be looked into. It also cannot be doubted that notice under Section 88(2) of the Act is mandatory and the suit instituted against the Board without giving such notice would not be maintainable against it. However, Order 7 Rule 13 C.P.C provides as under:-
"13. Where rejection of plaint does not preclude presentation of fresh plaint. - The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action."
It is amply clear from a bare perusal of Order 7 Rule 13 that a plaint which is rejected on any of the grounds mentioned under Order 7 Rule 11 of its own force does not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. It flows there from that it is open to the plaintiff, in case there is any curable defect in the plaint, to amend it so as to avoid the plaint coming within the clutches of Order 7 Rule 11 C.P.C. The filing of application Ka-113 by the plaintiffs appears to be an effort in that direction. In case after amendment, the plaint can be brought in line with the legal provisions, there is no impediment under law to entertain amendment application filed for such purpose and that too at pre-trial stage. It would only avoid multiplicity of proceedings. The plaintiffs will, no doubt, suffer the consequences, if any, flowing out of the amendment sought i.e deletion of U.P Awas Evam Vikas Parishad from the array of parties.
This Court finds no illegality in the view taken by the trial court in holding that it would first proceed to decide application Ka-113 and thereafter, take up application under Order 7 Rule 11 C.P.C for consideration. However, the trial court should try to decide the application under Order 7 Rule 11 C.P.C soon thereafter, keeping in mind the spirit of the order passed by this Court, in the earlier petition.
The petition lacks merit and is accordingly dismissed.
(Manoj Kumar Gupta, J.) Order Date :- 26.9.2019 PS