Chattisgarh High Court
Laljee Joshi (Deceased) Through : L.Rs vs Bhaiyya Ram Yadav (Deceased) Through : ... on 7 August, 2007
Author: Dilip Raosaheb Deshmukh
Bench: Dilip Raosaheb Deshmukh
IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
CR No.516 of 2002
Laljee Joshi (deceased) Through : L.Rs
i. Smt. Kalindri Joshi
ii. Smt. Sheela Mishra
iii. Shri Ramkumar Joshi
iv. Shri Arun Kumar Joshi
v. Smt. Pushpa Sharma
vi. Miss Neeta Joshi
...Petitioners
VERSUS
Bhaiyya Ram Yadav (deceased) Through : L.Rs
i. Shanti Bai
ii. Shyam Kumar alias Munna
iii. Shyam bai
...Respondents
! Shri Vikram G. Tamaskar, counsel for the applicant ^ Shri Anand Kumar Tiwari, counsel for the respondent Hon'ble Shri Dilip Raosaheb Deshmukh, J Dated: 07/08/2007 : Order Revision u/s 115 of the Code of Civil Procedure ORAL ORDER (Passed on 7th August, 2007) During the course of arguments on 01-08-2007 Shri Vikram G. Tamaskar, learned counsel for the applicant had prayed that this Court should invoke the suo motu revisional jurisdiction under sub- section (1) of Section 115 of the Code of Civil Procedure (hereinafter referred to as `the Code') and set aside the order dated 07-12-2001 as also quash the proceedings as being patently without jurisdiction. Before invoking such jurisdiction, learned counsel were called upon to address on the order dated 07-12-2001 rejecting the application under Order 7 Rule 11 of the Code filed by the applicant herein for rejection of the plaint. (2) Learned counsel were heard.
(3) Admitted facts in brief are as follows :
One Laljee Joshi filed an application before the Rent Controlling Authority, Bemetara (hereinafter referred to as `the RCA') under the provisions of the then Madhya Pradesh Accommodation Control Act, 1961 for eviction of the respondent/tenant Bhaiyyaram on ground of bona fide requirement, which was registered as Revenue Case No.161c/121, 82-83. Vide order dated 30-08-1986, the RCA passed an order of eviction of the respondent/tenant.
(4) Aggrieved by the order passed by the RCA, the tenant preferred Civil Appeal No.7/86, which was dismissed vide order dated 10-10-1998. The respondent/tenant preferred a civil revision in the High Court of Madhya Pradesh, which was also dismissed in default. Particulars, i.e., civil revision number, date of dismissal etc. have not been furnished by the applicants.
(5) The respondent/tenant instituted Civil Suit No.44-A/2001 before the Ist Civil Judge Class-II, Bemetara, District Durg praying for the following reliefs :-
"1- ?kksf"kr fd;k tkos fd oknh dCtsnkj Lokeh pSr ekg 2000 esa uofufeZr edku ds tehu ls mij iwjs eyes dk gS rFkk izfroknh oknh ds cktkj Hkko ls dher ,oa uqdlkuh dher ,oa {kfriwfrZ fn;s fcuk oknh ds bl lEifRr dks xzfgr ugha dj ldrk tSlk fd ekuuh; U;k;ky; mu lcdk ewY;kadu djs A 2- ;g Hkh ?kksf"kr fd;k tkos fd HkkM+k fu;a=.k vf/kdkjh egksn; }kjk ikfjr vkns'k fnukad 30@08@1986 fujFkZd ,oa izkjEHk ls gh 'kwU; rFkk vf/kdkj ,oa {ks=kf/kdkj foghu gS vr% fu"iknu v;ksX; gS A 3- oknh ds i{k esa izfroknh ds fo:) fu"ks/kkKk dh fMdzh ikjfr dh tkos fd izfroknh ,rn~ }kjk oknh dks fof/kuqdwy U;kf;d izfdz;k@vkns'k ds cxSj okn edku ls csn[ky djus fu"ksf/kr jgsxk A 4- U;k;fgr esa okn] oknh ds i{k esa U;k;ky;hu O;; lfgr fMdzh gks rFkk vkSj dksbZ vko';d vuqrks"k tks mi;qDr ik;k tkos mudh Hkh fMdzh oknh ds i{k esa nh tkos A"
(6) In the said suit, the defendant/landlord Laljee Joshi filed an application under Order 7 Rule 11 of the Code on the ground that Civil Court had no jurisdiction to entertain such a suit and no cause of action for filing a civil suit arose in favour of the plaintiff/respondent herein. Vide order dated 07-12-
2001, the learned Ist Civil Judge Class-II, Bemetara passed the following order on the said application :
"izfroknh i{k }kjk mDr vkosnu ds ek/;e ls oknh ds okni= dks izfrikyuh; ugha gksus ls izkjafHkd voLFkk esa gh fujLr fd;s tkus dk fuosnu fd;k gS A izdj.k esa izfroknh i{k }kjk t-nk- ,tokc nkok+ is'k ugha gqvk gS rFkk oknh }kjk vLFkk;h fu"ks/kkKk ckcr vkosnu Hkh is'k gS ftldk fujkdj.k vHkh fd;k tkuk gS ,slh LFkfr esa okn la/kkj.kh; gS vFkok ugha ;g iz'u fopkj.kh; ugha gksrk gS A mDr vk'k; dk eUrO; ekuuh; mPp U;k;ky; }kjk izfrikfnr fd;k x;k gS bl laca/k esa 1988 ,1+ ,e-ih-MCY;q-,u- 117 dk U;k;n`"VkUr lanfHkZr fd;k tk ldrk gS A vr% izfroknh dh vksj ls is'k vkosnu vk- 7 fu- 11 O;-iz-la- varfje vkosnu dzekad 5 vLohdkj fd;k tkrk gS A"
(7) The respondent herein also filed an application under Order 39 Rules 1 and 2 of the Code for restraining the defendant/landlord Laljee Joshi from evicting the applicant/tenant from the suit accommodation. This application was rejected vide order dated 20-12-2001 passed by the Ist Civil Judge Class-II, Bemetara in Civil Suit No.44-A/2001. (8) Aggrieved by the said order, the tenant/plaintiff preferred Miscellaneous Civil Appeal No.4/2002. It was contended that after the institution of Civil Suit No.44-A/2001, he was dispossessed in pursuance of an order passed by the Sub-Divisional Officer on 18-08-2001. The learned IInd Additional District Judge, Bemetara, District Durg allowed the appeal on the ground that the respondent/tenant was in possession of the suit accommodation on the date of suit and, therefore, ordered restoration of status quo ante. Aggrieved by this order dated 03-08-2002 passed in Miscellaneous Civil Appeal No.4/2002, the applicant Laljee Joshi has filed this civil revision.
(9) During the pendency of the revision, Laljee Joshi died on 18-09-2002. His legal representatives, who are the present applicants, were brought on record.
(10) Shri Vikram G. Tamaskar, learned counsel for the applicant did not press this revision against the order dated 03-08-2002 passed in Miscellaneous Civil Appeal No.4/2002, but prayed that since the jurisdiction of the Civil Court was expressly barred under Section 45 of the Chhattisgarh Accommodation Control Act, 1961 (hereinafter referred to as `the Act'), a complete failure of justice had occasioned due to rejection of his application under Order 7 Rule 11 of the Code by the learned Civil Judge Class- II, Bemetara vide order dated 07-12-2001. Learned counsel for the applicant prayed that invoking the suo motu revisional jurisdiction, the order dated 07- 12-2001 should be set aside and the plaint was liable for rejection under Order 7 Rule 11(d) of the Code. (11) On the other hand, Shri Anand Kumar Tiwari, learned counsel for the respondent/tenant submitted that the order dated 07-12-2001 not being impugned in this civil revision by the applicant, exercise of suo motu revisional jurisdiction was uncalled for. It was also contended that the order dated 20-12-2001 passed in Civil Suit No.44-A/2001, rejecting the application under Order 39 Rules 1 and 2 of the Code filed by the plaintiff/tenant Bhaiyyaram, only an appeal would lie under Order 43 Rule 1(r) of the Code. Bhaiyyaram, having availed of that remedy, no revision would lie against an interlocutory order under the proviso to sub-section (1) of Section 115 of the Code.
(12) Having considered rival submissions, I have perused the documents annexed to the application. (13) So far as the impugned order dated 03-08-2002 is concerned, it is an order passed by the lower appellate Court under Order 43 Rule 1(r) of the Code. No further appeal or revision lies against such order. Besides, an order granting or refusing temporary injunction under Order 39 Rules 1 and 2 of the Code is purely an interlocutory order against which no revision lies. Therefore, there is no element of doubt that the revision so far as it relates to the order dated 03-08-2002 passed in Miscellaneous Civil Appeal No.4/2002 is concerned, is liable to be dismissed in limine because no revision lies against the order dated 03-08-2002 passed in Miscellaneous Civil Appeal No.4/2002. Ordered accordingly.
(14) I shall now proceed to consider, in exercise of the suo motu revisional jurisdiction whether the Ist Civil Judge Class-II, Bemetara had committed a jurisdictional error in rejecting the application under Order 7 Rule 11 of the Code by order dated 07- 12-2001. Order 7 Rule 11 of the Code reads as under
:
"O. 7 R. 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."
(15) In Sopan Sukhdeo Sable and others vs. Assistant Charity Commissioner and others, (2004) 3 SCC 137, the Apex Court has observed as under :
"Order 7 Rule 11 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 - the trial court can exercise the power at any stage of the suit, that is, before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial - and also does not say in express terms about the filing of a written statement: for the purposes of deciding an application under clauses (a) and (d) of Order 7 Rule 11 CPC, the averments in the plaint are germane: the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. Instead, the word "shall" is used, clearly implying thereby that Order 7 Rule 11 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 Order 7 Rule 11, even without intervention of the defendant (emphasis supplied by me). In any event, rejection of the plaint under Order 7 Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Order 7 Rule 13."
(16) In Sajjan Sikaria and others vs. Shakuntala Devi Mishra and others, (2005) 13 SCC 687, the Apex Court has in a similar situation observed as under :
"3. We find that the directions for considering the question relating to Order 7 Rule 11 CPC as preliminary issue is not correct as that would necessitate filing of a written statement. It is a settled position in law that while dealing with an application under Order 7 Rule 11 CPC, consideration of written statement is not a condition precedent and only averments in the plaint have to be considered. ......"
(17) The refusal by the Ist Civil Judge Class-II, Bemetara to consider the application under Order 7 Rule 11 of the Code on merits on the ground that the defendant had not filed any written statement and the application filed by the plaintiff for grant of temporary injunction was pending was thus contrary to law. The lower Court acted illegally in exercise of its jurisdiction because for the purpose of deciding an application under Order 7 Rule 11 of the Code, the averments in the plaint alone are germane and the pleas to be taken by the defendant in the written statement were wholly irrelevant. The use of the word "shall" in Order 7 Rule 11 of the Code casts a duty on the Court to perform its obligations in rejecting the plaint where the same is hit by any of the infirmities provided under Order 7 Rule 11 of the Code, even without intervention of the defendant. It is thus clear that the impugned order passed by the Ist Civil Judge Class-II, Bemetara on 07-12-2001 in Civil Suit No.44-A/2001 rejecting the application under Order 7 Rule 11 of the Code on the ground of non-filing of the written statement by the defendant and the pendency of the application filed by the plaintiff for grant of temporary injunction was contrary to law and is, therefore, liable to be set aside.
(18) In this view of the matter, exercising suo motu revisional jurisdiction under Section 115 of the Code, the order dated 07-12-2001 is set aside. The Ist Civil Judge Class-II, Bemetara shall, after hearing the parties, decide the application under Order 7 Rule 11 of the Code on merit.
(19) A copy of this order be sent to the Court of Ist Civil Judge Class-II, Bemetara forthwith. JUDGE