Order on the Recall Application No.2 of 2021
1. Civil Misc. Recall Application No. 2 of 2021 has been filed by the contesting respondent nos. 1 & 2 to recall the order dated 11.8.2021 passed by this Court in the present petition.
2. Today when the matter is taken up, a prayer has been made by Sri Kamlesh Kumar Mishra, learned counsel appearing on behalf of the respondent nos. 1 & 2 that the respondent nos. 1 & 2 do not want to press the present recall application.
3. The recall application is dismissed as not pressed.
Order on the Petition
1. The affidavit of service filed in the Court today is taken on record.
2. It is stated by learned counsel for the respondent nos. 1 & 2 that he does not propose to file counter affidavit in the present petition.
3. Heard learned counsel for the petitioners and Sri A.P. Tiwari Advocate along with Sri Kamlesh Kumar Mishra, learned counsel for the contesting respondent nos. 1 & 2.
4. The petitioners have preferred the present petition under Article 227 of the Constitution of India inter-alia with the following prayer :
"(1) Set aside impugned order dated 12.7.2021 passed by the learned Civil Judge, Senior Division, Gorakhpur in Original Suit No. 298 of 2021 (Pooja Educational and others vs. Rajesh Kumar Raina and others) only to the extent it observes that the application '49Ga' jointly filed by the petitioner no. 1/defendant no. 2 and respondent no. 3/defendant no. 3 under Order 7 Rule 11(d) of C.P.C. shall be heard and decided after hearing and disposal of interim injunction application '7C' filed on behalf of the respondents/plaintiffs under Order 39 Rule 1 of C.P.C. on the next date fixed in the case."
5. Facts in brief as contained in the petition are that an Original Suit No.298 of 2021 (Pooja Educational and others Vs. Rajesh Kumar Raina and others) has been filed by Pooja Educational and Social Development Trust and others in the Court of Civil Judge (S.D.) Gorakhpur. In the aforesaid suit, an application under Order XXXIX Rule 1 CPC being Application No.7 C for grant of interim injunction was also filed on 13.04.2021. Subsequently, another application was also filed on 22.6.2021 for grant of interim injunction till the disposal of application No.7C. During the pendency of the aforesaid application, defendants preferred an application as provided under Order 7 Rule 11 (D) of C.P.C. stating therein that the suit is barred by Order VII Rule (IV-A)) as per Suit Valuation Act as well as Court Fees Act. The aforesaid application was marked as Paper No.49 Ga. The aforesaid application was rejected by the Trial Court vide judgement and order dated 12.07.2021. Aggrieved against the aforesaid order, the petitioners have preferred the present petition.
6. It is argued by learned counsel for the defendants/petitioners that once an application has been preferred under Order VII Rule 11 (D) C.P.C. it is settled law that the court should decide the said application first and only thereafter to proceed with the injunction application. Learned counsel for the petitioners relied upon a Division Bench judgement of this Court in the case of Arun Kumar Tiwari Vs. Deep Sharma (First Appeal From Order No.3481 of 2004) decided on 15.2.2006. In support of his argument, learned counsel for the petitioners relied upon paragraph 11 of the aforesaid judgement, the same is quoted below:-
"11. It was contended that that in view of the spirit of the aforesaid provision it was very much necessary for the court to have first decided the matter of court fees ( when it had been raised ) and then it should have considered the injunction application. It was further submitted that it is virtually a dummy suit which has been filed at the instance of previous owners of the house by the plaintiff tenants because otherwise there was no necessity for the plaintiff tenants to challenge the sale deed executed by defendant no.1 in favour of defendant no. 5. He pointed out that no service could yet be effected upon the previous owners (defendants no. 1 to 4 ) inspite of the fact that the suit was filed in the year 2003 and the only purpose of the suit filed by the tenant is to raise the un-necessary dispute of ownership of the property among the defendants inter se so that the matter may not be considered and decided early, and the plaintiff tenants may be able to continue in the disputed rooms for a long period. There appears some force in these contentions of the defendant appellant."
7. On the other hand, it is argued Sri A.P. Tiwari, learned counsel for the respondent Nos.1 and 2 that order passed by the court below is absolutely perfect and valid and does not call for any interference by this Court. He further argued that there is no illegality or irregularity cause by the Court below while directing that the application No.7C should be decided first.
8. Heard learned counsel for the parties and perused the record.
9. From perusal of the record, it is clear that during the pendency of the suit in which injunction application was filed, an application under Order VII Rule 11(D) C.P.C. was also filed by the defendants.
10. The power conferred by Order VII Rule 11 is primarily to ensure that a suit which discloses no cause of action or is otherwise barred in law is brought to an end at the threshold. This obviates the courts from undertaking a full fledged trial and then ultimately coming to a conclusion either that the plaint discloses no cause of action or that the jurisdiction of the court stands ousted by law. The legislative policy underlying Order VII Rule 11 was pithily explained by the Supreme Court in Azhar Hussain Vs. Rajiv Gandhi reported in 1986 (Supp) SCC 315 in the following terms:-
"12. Learned counsel for the petitioner has next argued that in any event the powers to reject an election petition summarily under the provisions of the Code of Civil Procedure should not be exercised at the threshold. In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation the court readily exercises the power to reject a plaint if it does not disclose any cause of action. Or the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexatious parts of the pleadings. Or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law. An order directing a party to strike out a part of the pleading would result in the termination of the case arising in the context of the said pleading. The courts in exercise of the powers under the Code of Civil Procedure can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. The powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. And so that they can adjust their affairs on the footing that the litigation will not make demands on their time or resources, will not impede their future work, and they are free to undertake and fulfil other commitments. Such being the position in regard to matter pertaining to ordinary civil litigation, there is greater reason for taking the same view in regard to matters pertaining to elections. ........To wind up the dialogue, to contend that the powers to dismiss or reject an election petition or pass appropriate orders should not be exercised except at the stage of final judgment after recording the evidence even if the facts of the case warrant exercise of such powers, at the threshold, is to contend that the legislature conferred these powers without point or purpose, and we must close our mental eye to the presence of the powers which should be treated as non-existent. The court cannot accede to such a proposition. The submission urged by the learned counsel for the petitioner in this behalf must therefore be firmly repelled." (emphasis supplied)
11. The aforesaid proposition of law has been reiterated by the Hon'ble Apex Court in the case of R.K. Roja Vs. Rayudu reported in (2016) 14 SCC 275. In the aforesaid judgement, following observations were made by the Hon'ble Apex Court :-
"5. Once an application is filed under Order 7 Rule 11 CPC, the court has to dispose of the same before proceeding with the trial. There is no point or sense in proceeding with the trial of the case, in case the plaint (election petition in the present case) is only to be rejected at the threshold. Therefore, the defendant is entitled to file the application for rejection before filing his written statement. In case the application is rejected, the defendant is entitled to file his written statement thereafter (see Saleem Bhai v. State of Maharashtra [Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557] ). But once an application for rejection is filed, the court has to dispose of the same before proceeding with the trial court. To quote the relevant portion from para 20 of Sopan Sukhdeo Sable case [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137]: (SCC pp. 148-49) "20. ... Rule 11 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word "shall" is used, clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant."
6. In Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557, this Court has also held that: (SCC p. 560, para 9) "9. ... a direction to file the written statement without deciding the application under Order 7 Rule 11 cannot but be a procedural irregularity touching the exercise of jurisdiction by the trial court."
However, we may hasten to add that the liberty to file an application for rejection under Order 7 Rule 11 CPC cannot be made as a ruse for retrieving the lost opportunity to file the written statement.
7. Apparently, in the present case, it is seen that Annexure P-4, affidavit dated 15-3-2015, with a prayer ... "to dismiss the present election petition under Order 7 Rule 11 CPC...", was filed within thirty days of the receipt of the summons in the election petition. However, the court was not inclined to consider the same in the absence of a formal application, and thus, Annexure P-5, Application No. EA No. 222 of 2016 was filed on 22-2-2016 leading to the impugned order, posting the application for consideration at the time of final hearing.
8. The procedure adopted by the court is not warranted under law. Without disposing of an application under Order 7 Rule 11 CPC, the court cannot proceed with the trial. In that view of the matter, the impugned order is only to be set aside. Ordered accordingly." (emphasis supplied)
12. From the discussion made above as well as the decisions as stated above, it is clear that the court below has committed a manifest and grave error of law. A litigation which is vexatious or is otherwise contended to be barred by law cannot be permitted to proceed to a full length trial. This would clearly be contrary to the legislative intendment underlying under Order VII Rule 11. Adoption of a course of action as has been done by the court below in the facts of the present case would clearly do injustice to a valuable right conferred upon a defendant by the aforementioned provision.
13. Considering the facts and circumstances of the case and also in the interest of justice, the Court is of the opinion that the order passed by the court below dated 12.7.2021 is liable to be set aside and is hereby set aside. The court below is directed to pass appropriate orders on the application filed under Order 7 Rule 11(d) of C.P.C. most expeditiously, preferably within a period of three months from the date of presentation of a copy of this order. It is made clear that the court below shall pass an order on the application for interim injunction only after order is passed on the application filed under Order 7 Rule 11(d) of C.P.C.
14. The petition is allowed with the aforesaid directions.
Order Date :- 20.9.2021/saqlain