Allahabad High Court
Virendra Awasthi And 3 Others vs Civil Judge (Jr. Div)/Ftc, Bahraich And ... on 24 March, 2023
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 22 Case :- MATTERS UNDER ARTICLE 227 No. - 1410 of 2023 Petitioner :- Virendra Awasthi And 3 Others Respondent :- Civil Judge (Jr. Div)/Ftc, Bahraich And 2 Others Counsel for Petitioner :- Ashok Kumar Singh Hon'ble Manish Mathur,J.
Heard Mr. Sanjay Bhasin, Senior Advocate assisted by Ms. Mahima Pahwa, learned counsel for petitioners. In view of order being passed notices to opposite party no.3 as well as opposite parties 1 and 2, being merely proforma in nature, stand dispensed with.
Learned counsel for petitioners upon instructions submits that petitioners 1 and 2 having a separate cause of action, may be deleted from the array of parties maintaining their right to raise objections at a later stage. Prayer so made is allowed. Consequential amendment in the memorandum of petition deleting petitioners 1 and 2 and renumbering petitioners 3 and 4 as petitioners 1 and 2 shall be incorporated during course of the day.
Petition under Article 227 of the Constitution of India has been filed against order dated 22.03.2021 passed in Regular suit No.942 of 2016 filed by opposite party no.3 seeking damages for defamation. Revisional Order dated 25.05.2022 rejecting Civil Revision No.10 of 2021 is also under challenge. By means of aforesaid orders, Application filed by petitioners under Order VII Rule 11 of the Code of Civil Procedure, 1908 (herein after referred to as the Code) has been rejected.
Learned counsel for petitioners submits that aforesaid suit had been filed against four persons including the two petitioners herein but a bare perusal of impugned orders will indicate that orders have been passed pertaining to all the defendants since a composite application under Order VII Rule 11 of the Code was filed on behalf of defendants. It is submitted that a bare perusal of the plaint will indicate that allegations have been levelled primarily against defendants 1 and 2 with no cause of action being attributable against defendants 3 and 4 who are petitioners in the present petition. It is submitted that in view of aforesaid, the trial court as well as revisional court was required to make an observation with regard to cause of action accruing against all the defendants individually and not in a composite manner although a composite application had been filed.
Considering the submissions advanced by learned counsel for petitioners and upon perusal of material on record, it appears that a composite application under Order VII Rule 11 of the Code was filed by all the defendants. It appears that no separate pleading was raised by defendants 3 and 4 for maintainability of Suit/plaint against them.
A reading of impugned orders also makes it evident that Application under Order VII Rule 11 of the Code has been considered in terms of cause of action indicated in paragraph 7 of plaint qua the defendants 1 and 2 only without any observations being made with regard to maintainability of plaint against defendants 3 and 4.
In view of aforesaid, it is evident that impugned orders having been passed qua defendants 1 and 2 are not required to be interfered with in the present proceedings at the behest of defendants 3 and 4.
However, the petitioners are granted liberty to file a separate Application under Order VII Rule 11 of the Code before the trial court since the same would not operate as res judicata in view of observations made in the impugned orders. In case such an application is filed by defendants 3 and 4, who are the remaining petitioners in the present petition, the trial court is directed to consider and decide the same expeditiously.
Benefit of this order shall be available to petitioners only in case they cooperate in early disposal of the proceedings.
With aforesaid observations, the petition stands disposed of.
Order Date :- 24.3.2023 kvg/-