Rajasthan High Court - Jaipur
Trust Mandir Shri Chote Mathur vs Nand Lal Sharma on 12 September, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.14298/2008 (Trust Mandir Shri Chote Mathuranath Ji Versus Nand Lal Sharma) Date of Order :: 12th September, 2011 HON'BLE MR. JUSTICE MAHESH BHAGWATI None appears for the petitioner Mr. Shailesh Prakash Sharma, counsel for the respondent
By way of the instant writ petition, the petitioner has beseeched to quash and set-aside the order dated 15th October, 2008, whereby the learned Civil Judge (Senior Division) Kota dismissed the application filed by the defendant-petitioner under Order 7 Rule 11.
2. None appears for the petitioner.
3. Heard learned counsel for the respondents and carefully perused the relevant material on record including the impugned order.
4. At the very out-set, it is relevant to mention that the Hon'ble Apex Court in plethora of cases has consistently held that the jurisdiction under Article 227 of the Constitution must be sparingly exercised to correct errors of jurisdiction and the like, but not to upset pure findings of fact. The Hon'ble Apex Court has also held that the High Court should not interfere with the order of the inferior court, unless the same is found to be perverse or not based on any material or it results in manifesting injustice.
5. In Saleem Bhai and Others Versus State of Maharashtra and others reported in 2003 (1) SCC 557, the Hon'ble Apex Court has held with reference to Order VII Rule 11 of the Code 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 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 Order VII Rule 11 of the Code, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
6. The crux of aforesaid judgment is that the disputed questions cannot be decided at the time of considering an application filed under Order VII Rule 11 of CPC. The learned trial court is found to have un-erringly dismissed the application filed by the defendant-petitioner under Order 7 Rule 11 of CPC .
7. Otherwise too, the power to reject the plaint under Order 7 Rule 11 CPC is conferred on the court and not on the party. Thus, it is the Court alone, which can exercise the power to reject the plaint under Order 7 Rule 11 CPC. Rule 11 deals with the rejection of the plaint, which reads thus:
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 written 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 provisions 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.
8. Thus, from a bare perusal of Rule 11 of Order 7 CPC, it is found that the court has to see as to whether plaint discloses any cause of action; it is sufficiently stamped; and has been presented within time prescribed for the institution of such a suit. If the plaint does not constitute a cause of action or it is insufficiently stamped or it is barred by law, then the Court shall reject the plaint invoking the powers under Rule 11 of Order 7 CPC. The Court is not required to pass an order under Order 7 Rule 11 CPC at the behest of the defendant when an application is filed under this provision by the defendant in this regard. The power to attract the provisions of Order 7 Rule 11 CPC is not conferred on the party to the suit. On the contrary, if the suit does not disclose any cause of action or it is insufficiently stamped or it is barred by law, then without there being any prayer of the defendant, the Court is duty bound to reject the plaint suo-moto. Thus, the power to attract the provisions of Order 7 Rule 11 CPC is not conferred on the party, but it is conferred on the Court and it is the Court alone, which can exercise the powers to reject the plaint under Order 7 Rule 11 CPC. If viewed from this angle, it can safely be inferred that the petitioner-defendant had no right to file the application under Order 7 Rule 11 CPC imploring the Court to reject the plaint and the application was not maintainable.
9. To conclude, the impugned order is found to be just and proper. There does not seem to be any perversity in the impugned order nor is it found to be contrary to the provisions of law. In view thereof, this Court does not find any ground to interfere with the impugned order passed by the learned court below and the writ petition filed by the petitioner being devoid of any substance deserves to be dismissed.
10. For the reasons stated above, the writ petition fails and the same being bereft of any merit stands dismissed in default as well as on merits too.
(MAHESH BHAGWATI),J.
D