1. Heard Shri Ashok Khare, learned Senior Advocate assisted by Shri Archit Mandhyan for the defendants-petitioners and Shri Rajesh Gupta, learned counsel for the plaintiffs-respondents.
2. In these matters, the petitioners are assailing the orders dated 30.1.2018 passed by the Additional Civil Judge (Junior Division), Court No.2, Meerut, whereby he had decided the issue no.9 in favour of plaintiffs-respondents and rejected the applications (97-C) moved by the defendant-petitioners under Order VII Rule 11 of Code of Civil Procedure for rejection of the plaint of the Original Suit Nos.47 of 2007, 50 of 2007, 52 of 2007 & 53 of 2007 for non-disclosing any cause of action as well as the impugned order dated 4.5.2018 passed by the District Judge, Meerut, by which he has dismissed the Civil Revision Nos.42 of 2018, 41 of 2018, 43 of 2018 and 44 of 2018.
3. For the sake of convenience, the facts of leading Matter under Article 227 No.3978 of 2018 are being noted below:-
4. Brief background of the case, as is reflected from the record in question, is that Ravi Shanker Sharma filed four Original Suit Nos.47, 50, 52 and 53 all of the year 2007 for recovery of arrears of rent, mesne profits and for ejectment of the petitioners from open piece of land alleged to be in the tenancy of the petitioners. Late Abhay Singh (grand father of the first petitioner and father of the second petitioner) had taken the suit property on monthly rent of Rs.7/- per month from Shiv Nath Sharma (grand father of the plaintiff-respondent) by registered lease deed dated 20/7/1947. After the death of Abhay Singh, the petitioners inherited the tenancy rights as joint tenants. The rent was due since 1st January, 1967 and the same was not paid despite various requests. The tenancy of the petitioners was terminated by registered notice dated 18/10/2006 but the petitioners in their reply refused to pay the rent and also denied the ownership of the plaintiffs with respect to the suit property.
5. Thereafter, the plaintiff-respondent filed the aforesaid suits for ejectment of the defendants-petitioners and for arrears of rent. The defendants-petitioners contested the suits and filed written statements denying and disputing the facts and stating, inter alia, that the suit property was taken on rent by registered lease deed dated 20/7/1947. However, the petitioners in their written statement stated that the suit land is part of Khasra No.4899 area 3 bigha, whose Zamindar was late Shiv Nath Sharma (grand father of the plaintiff). He executed a registered lease deed dated 20/7/1947 with regard to 300 sq. yds. of land on annual rent of Rs.90/- in favour of Abhay Singh. Towards east of the suit property, an area measuring 125 sq. yd. was also let out to late Abhai Singh by registered lease deed dated 4/9/1948 on payment of annual rent of Rs.37.50. These leases were given for the purpose of construction of building. Abhai Singh transferred his interest in part of the demised land in favour of Smt. Raj Kumari by lease deed dated 29/5/1950 and Smt. Raj Kumari by registered deed dated 27/5/1959 transferred her rights in favour of Sardar Singh. After obtaining the land on lease Abhay Singh constructed a pucca building over the demised land. The proceedings for demarcation of land in question were initiated and by the order dated 30/12/1966, the predecessor in title of the defendants and their assignees were conferred Bhumidhari rights in the land. Since then, all the rights, title and interest of Sri Shiv Nath Sharma (grand father of the plaintiffs) came to an end. It was denied that there was any relationship of landlord and tenant between the parties. Thereafter, the plaintiff-respondent no.2 filed a replica claiming that he nor his predecessors had no knowledge of the order dated 30/12/1966. The suit land was not agricultural land and the defendants are the tenants and are liable to be evicted. Subsequently the defendants-petitioners filed a petition stating, inter alia, that the plaintiff-respondent had not disclosed the cause of action for the suit and the plaint is liable to be rejected under the provisions of Order VII Rule 11 of Code of Civil Procedure (CPC).
6. The trial court framed 18 issues, out of which issue no.2 was as to whether the Civil Court has jurisdiction to decide the suit; issue no.7 was as to whether the suit is barred by Section 331 of U.P. Z.A. and L.R. Act (in short, the Act) and Section 59 of U.P. Urban Area Zamindari Abolition Act, 1956 (Act of 1956) and the issue no.9 was whether the suit is barred by Order VII Rule 11 of CPC. The petitioners filed an application under Order 14 Rule 2 (2) of CPC, registered as Paper No.97-C, for deciding issues nos. 2, 7 and 9 as preliminary issues. Learned trial court by its order dated 5.11.2011 rejected the application (97-C) on the ground that adjudication of these issues require consideration of the evidence of the parties and these issues, being mixed questions of law and facts, cannot be decided as preliminary issues. The defendants-petitioners, thereafter, preferred a revision under Section 115 of CPC in the Court of learned District Judge, Meerut. The said revision was dismissed by the Additional District Judge, Court No.2, Meerut on 1.8.2015 and the order of the trial court was affirmed.
7. Challenging the aforesaid order, the defendants-petitioners had approached this Court by preferring Matters under Article 227 No.4416 of 2015 (Yudhishthir Singh and another vs. Additional District Judge/Special Judge & 4 others) and the aforesaid writ petition alongwith three other writ petitions were partly allowed by this Court on 27.8.2015 on the ground that the plea under Order VII Rule 11 of CPC has to be decided on the basis of assertions made in the plaint and such plea can be raised at any stage and the revisional court had not made any adjudication on merits. The trial court was directed to decide issue no.9 relating to the plea under Order VII Rule 11 CPC as a preliminary issue before proceeding any further with the trial of the suits. In compliance of the aforesaid order dated 27.8.2015, the Additional Civil Judge (Junior Division), Meerut, after thorough consideration and discussion of the evidences and materials on record, came to the finding that the defendants failed to point out any ground on which the plaint in the instant case can be rejected under Order VII Rule 11 of CPC and decided the preliminary issue No.9 in favour of the plaintiff-respondent on 30.1.2018. The trial Court found that there was cause of action against the defendants-petitioners. The said order was assailed by the defendants-petitioners before the District Judge, Meerut by preferring Civil Revision No.42 of 2018 and the same was dismissed by the District Judge, Meerut on 4.5.2018, as not maintainable as it has been filed against an order rejecting the application under Order VII Rule 11 of CPC.
8. In this backdrop, Shri Ashok Khare, Senior Advocate appearing for the petitioners submitted that in the plaint of the aforesaid suit, the plaintiff-respondent has not established the relationship of the landlord and tenant between the petitioner and the respondent. The suit was barred by the provision of law as the suit property was agricultural land (grove) of the then Zamindar and the same was let out in favour of Shri Abhay Singh vide lease deed dated 20.7.1947 on rental of Rs.7/- per month with right to raise pucca construction for the residential purpose. The defendants-petitioners are living in the house in question and they were recorded as bhumidhar having their own residential building. Both the Courts below have not decided/interpreted the legal term "cause of action" properly. The cause of action consists of bundle of facts and laws narrated in the plaint, therefore, the plaint lacks necessary averments of the facts giving rise to cause of action to file the suit. The demarcation was made under Section 5 of the Act of 1956 and the order was passed way back on 30.12.1966 declaring Shri Abhay Singh as Bhumidhar of the said land. The aforesaid order has attained finality after publication of notification in U.P. Gazette on 12.7.1969. The land in question was declared as agricultural land by operation of law under Section 2 (1) (d) of the Act of 1956 and the defendants-petitioners were conferred Bhumidhari rights and their names were also recorded in the revenue record.
9. Shri Ashok Khare, Senior Advocate has placed reliance on the averments contained in the plaint precisely paragraphs 1, 2, 3 and 4 and also the description of the property which is mentioned in the bottom of the plaint (at page 51 of the paper book). Much emphasis has also been placed on the objection which has been filed by the petitioners in the aforementioned suit. Relevant paragraphs are extracted herein below:-
"blh nkSjku mRrj izns'k vjcu ,fj;k tehankjh mUewyu ,oa Hkwfe lq/kkj vf/kfu;e lu 1956 ykxw gqvk vkSj /kkjk 2 ¼Mh½ vjcu tehankjh mUewyu vf/kfu;e lua 1955 ds vuqlkj izfroknh dks fookfnr Hkwfe esa ladze.kh; Hkwfe/kjh vf/kdkj izkIr gks x;s vkSj oknh dks cgSfl;r tehankj Hkwfe Lokeh vf/kdkj izkIr Fks] og dqy vf/kdkj lekIr gks x;s Fksa] vkSj la'kksf/kr vf/kfu;r ds izHkkoh gksus ij Lor% gh oknh o izfroknh ds chp ;fn dksbZ Hkwfe Lokeh o fdjk;snkj ds lEca/k esa og lekIr gks x;sA bl vk/kkj ij oknh dks ekStwnk okn pyk;s tkus dk dksbZ vf/kdkj oknh dks ugh jgk gSA bl lEca/k esa izfrokn i= esa dkuwuh rkSj ij vkifRr ekuuh; U;k;ky; ds {ks=kf/kdkj izHkkfor gksrk gS] dh ckor vkifRr mBk;h gS vkSj mlh vk/kkj ij iz'uxr okn fcUnq cuk;s x;s gSA"
10. Shri Ashok Khare further apprised to the Court that the Demarcation Officer/Sub Divisional Officer, Meerut passed an order on 30.12.1966 in Demarcation Case No.863 (Abhay Singh vs. State of UP) alongwith Demarcation Case No.860 (Sardar Singh vs. State of UP) (at page-88 of the paper book) wherein it was mentioned that the land 375 sqr. yards acquired by Abhay Singh and 50 sqr. yards held by Sardar Singh fall within the provisions of Section 2 (1) (d) of the Act of 1956 and the same was demarcated as agricultural area. Accordingly, the applicants were directed to be recorded as bhumidhars separately for the areas mentioned in Class-A of the Khatauni in U.P. Form-4. He further submitted that after the promulgation of Act of 1956 since the demarcation was also undertaken and under Section 5 of Act of 1956 the aforesaid order dated 30.12.1966 was already passed declaring Abhay Singh as bhumidhar of the said land, which eventually devolved upon the petitioners on which pucca construction is standing. The said order of demarcation has also attained finality after the notification was published in U.P. Gazette on 12.7.1969 and the land in question was declared as agricultural land by operation of law under Section 2 (1) (d) of the Act of 1956. Consequently, the defendants-petitioners were declared as Bhumidhars with transferable rights and the names of the petitioners were recorded in the revenue record.
11. It has been further submitted that a bare perusal of the plaint this much is clearly reflected that the entire claim has been set up by the plaintiff-respondent on the basis of lease agreement of the year 1947 and on its own face value the same was perpetual in nature with lessor having no right to seek eviction of the lessee from the grove land as well as the rent was made static without any right for enhancement. Hence the suit for eviction was not maintainable particularly in the backdrop when the order of the demarcation has attained finality. Even otherwise, the suit was barred as per Section 331 of the Act and Section 59 of the Act of 1956. Once categorical objection was taken then in such situation the trial court could not say that it is a mixed question wherein evidence are to be led. In most cursory manner, the same has also been approved by the revisional court on 4.5.2018 and the revision was dismissed as not maintainable.
12. It has been further submitted that the suit was also barred by Section 331 of the Act and Section 59 of the Act of 1956. The land in dispute was not identifiable and the suit was highly undervalued. The trial court framed 18 issues out of which the issue Nos.2, 7 and 9 related to maintainability of the suit. Without considering the objections of the petitioners, the trial court had decided the issue no.9 against the petitioners. Once the suit was barred by the provision of Section 59 of of the Act of 1956 then the defendants-petitioners filed the application under Order VII Rule 11 of the CPC for rejection of the plaint on the ground that it does not show any cause of action against him. Both the Courts below have gone beyond jurisdiction to reject the application of the petitioners. In support of his submission, he has placed reliance on the judgment of Hon'ble Apex Court in Church of Christ Charitable Trust & Educational Charitable Society vs. Ponniamman Educational Trust1.
13. Per contra, Shri Rajesh Gupta, Advocate appearing for the contesting respondents submitted that the plaintiff-respondent had not concealed any facts and the plaint was drafted mentioning each and every facts and disclosing cause of action. For rejection of the plaint under Order VII Rule 11 of CPC, it is to be seen as to whether the plaint discloses the cause of action for trial and decision by the court. On the said objection and in view of the controversy, it will be itself an issue in the suit as to whether the plaintiff has got valid cause of action for the suit to be tried and decided on the basis of evidences on record. The provisions of Order VII Rule 11 CPC do not contemplate pre-judging of such an issue at the threshold. While deciding the application under Order VII Rule 11 of CPC only the plaint case has to be seen and the merit of the case could not be seen at this stage. The provisions of the Act of 1956 could not be seen at this stage and the evidence is required to be considered for this purpose. Once the trial court found that there was substance in the plaint then the trial court has rightly rejected the application under Order VII Rule 11 of the CPC. Learned revisional Court has considered the materials on record and recorded a finding that there are facts, which disclose such cause of action for the suit and affirmed the order of the trial court. Learned revisional court has rightly dismissed the revision filed by the petitioners as not maintainable. There is no infirmity in the impugned orders and the matters are liable to be dismissed.
14. Learned counsel for the plaintiff-respondent further submitted that the matter is pending before the trial court since the year 2007 and either on one reason or the other the matter has traveled twice before this Court only on the issue of Order VII Rule 11 of CPC. The request has been made to issue direction to the Court below to decide the aforesaid suits within stipulated time.
15. Heard rival submissions and perused the record in question.
16. Since the defendants-petitioners filed the application under Order VII Rule 11 of the Code for rejection of the plaint on the ground that it does not show any cause of action against them at the foremost, it is useful to refer the relevant provision: Order VII Rule 11 of the CPC:-
"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 provision 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 for 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. A perusal of Order VII Rule 11 of CPC makes it clear that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the Court, insufficiently stamped and not rectified within the time fixed by the Court, barred by any law, failed to enclose the required copies and the plaintiff fail to comply with the provisions of Rule 9, the Court has no other option except to reject the same. A reading of the above provision also makes it clear that power under Order VII Rule 11 of the Code can be exercised by the trial court at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial.
18. Having regard to the aforesaid submissions made by the learned counsel for the parties and also materials available on record, I find that the plaintiff-respondent filed Original Suit Nos.47, 50, 52 and 53 all of the year 2007 for the relief of ejectment of the defendants-petitioners from the suit property and vacant possession whereof claiming that the plaintiff was the landlord of the property in question and he let it out to the defendant. The cause of action arose when he served the defendants with a 30 days' notice determining his tenancy for having fallen in arrears of rent. In response thereof, the defendants disowned him as his landlord and claimed himself to be the owner of the property. The trial court framed 18 issues. The petitioners filed an application under Order 14 Rule 2 (2) of C.P.C. (Paper No.97-C), for deciding issues nos. 2, 7 and 9 as preliminary issues. Finally, learned trial court by its order dated 5.11.2011 rejected the application (97-C). Thereafter, the defendants-petitioners preferred the revision before learned District Judge, Meerut and the same was dismissed by the Additional District Judge, Court No.2, Meerut on 1.8.2015. The said order was assailed by the defendants in Matters under Article 227 No.4416 of 2015 (Yudhishthir Singh and another vs. Additional District Judge/Special Judge & 4 others). No doubt in the earlier round of litigation the Court had allowed the aforesaid Matters on 27.8.2015 and proceeded to ask the trial court to decide the issue no.9 relating to the plea under Order VII Rule 11 of CPC as a preliminary issue before proceeding any further with the trial of the suits. Consequently, the trial court vide its order dated 30.1.2018 had clearly proceeded to observe that the defendants failed to point out any ground on which the plaint can be rejected under Order VII Rule 11 of C.P.C. and decided the preliminary issue No.9 in favour of the plaintiff-respondent. The said order was assailed by the defendants-petitioners by preferring Civil Revision No.42 of 2018 and the same was dismissed by the District Judge, Meerut on 4.5.2018, as not maintainable.
19. Learned revisional Court after going through the records has come to the finding that the facts, as have been stated in the plaint, clearly disclose that the cause of action for the case of the plaintiff is based on. It is a different matter whether ultimately he succeeds in his case or not. The entire arguments advanced on behalf of the revisionist were in the nature and attempt to show that the allegations or facts stated by the plaintiff in his plaint were false. In fact, the matters can be decided after deliberation and appreciation of evidence. Suffice it would be at this stage that the term 'land-lord' is not synonym or akin to the term 'owner'. Learned advocate for the revisionist may be right in his submissions that the tenant has got a right to challenge the title of the plaintiff to avoid a decree of possession against him if he can claim a title superior to the title of the plaintiff and in support of his claim that the plaintiff could not have been the owner of the property in suit, he placed reliance on Sections 3 to 10 of the Act of 1956, but then it would require the Court to enter into the factual arena of the case and to take into consideration the defence case and evidence and this is not permissible while hearing the application under Order VII Rule 11 of the C.P.C. The plaintiff has disclosed the cause of action against the defendants. It has been rightly submitted by the learned counsel for the respondents that whether the plaintiff has got legal or constitutional right or any such-right has been infringed or not is an issue to be decided in the suit and the same cannot be considered and held while dealing with the plaint under Order VII Rule 11 C.P.C., which does not contemplate any such consideration or decision, rather the court has only to see at that stage whether the plaint discloses the cause of action or not. The revisional court has come to the finding that the plaintiff has got cause of action. The trial court has rightly proceeded to observe that such issues can only be resolved through deliberation and after appreciation of the evidence and rejected the application filed by the defendants under Order VII Rule 11 of C.P.C. Consequently, the revisional Court has dismissed the revision in question on 4.5.2018 as not maintainable, relying the judgment of this Court in Smt. Shivapatti Devi and others vs. Yudhishthir Dhar Dubey and others2.
20. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint vide Mayar (H.K) Ltd. v. Vessel M.V Fortune Express3.
21. In Mahadeo Prasad Burnwal vs Atpendra Roy Choudhary And Ors.4, the Jharkhand High Court has held that whether the plaintiff has got valid cause of action or not, is not required to be decided while considering the plaint under Order VII Rule 11 C.P.C, rather the court has only to see at that stage whether the plaint discloses the cause of action or not. The issue, whether the plaintiff has got valid cause of action or not, is not required to be decided while considering the plaint under Order VII Rule 11 C.P.C. Power under Order VII Rule 11 C.P.C has to be exercised with utmost caution. The dismissal of the suit at the threshold may lead to serious consequences and defeat the purpose of justice. Plaint which raises legally tenable and arguable points should not be rejected under Order VII Rule 11 of C.P.C.
22. In the facts and circumstances, this Court does not find any error in the impugned order.
23. Consequently, all writ petitions being devoid of merit are, accordingly, dismissed.
24. However, the trial court will expedite the proceeding of the aforesaid suits and conclude the same in accordance with law without granting unnecessary adjournment to either of the parties, except upon payment of cost and without influencing with any of the observations made by this Court in this order as well as the earlier order dated dated 27.8.2015.
Order Date :-28.9.2018 RKP