Allahabad High Court
Prem Kumar Rastogi vs M/S On-Up Automobiles Pvt. Ltd. & Ors. on 8 February, 2019
Author: Shabihul Hasnain
Bench: Shabihul Hasnain, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Judgment Reserved AFR Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 761 of 2018 Appellant :- Prem Kumar Rastogi Respondent :- M/S On-Up Automobiles Pvt. Ltd. & Ors. Counsel for Appellant :- Apoorva Tewari,Paavan Awasthi Counsel for Respondent :- Nishant Srivastava Hon'ble Shabihul Hasnain,J.
Hon'ble Saurabh Lavania,J.
(Delivered by Hon'ble Saurabh Lavania,J.) Heard Sri Anil Tewari, Senior Advocate on behalf of the appellant assisted by Sri Apporva Tewari and Sri Paavan Awasthi, Advocates and Sri N.K. Seth, Senior Advocate on behalf of the respondents assisted by Sri Rakesh Krishna, Advocate.
Under appeal is the order dated 27.10.2018 passed by Civil Judge (Senior Division), Mohanlalganj, Lucknow in Regular Suit No. 2003 of 2018. By means of the order under appeal dated 27.10.2018, the learned Court below decided the issue of territorial jurisdiction raised by the defendant/respondent through application dated 22.10.2018, under Order 7, Rule 11 of Code of Civil Procedure (in short "CPC"), and held that the Court has no jurisdiction to try the suit and return the plaint of Regular Suit No. 2003 of 2018 to the appellant/plaintiff under Order 7, Rule 10 of CPC.
The submission of Sri Anil Tewari, learned Senior Advocate for the appellant while assailing the order dated 27.10.2018 is to the effect that the Trial Court erred in law in relying upon the assertions made by the respondent/defendant as the same is impermissible in law, keeping in view the principles settled while dealing with the application under Order 7, Rule 11 of CPC.
According to the principles settled, the plaint and averment therin has to be seen while considering the objection under Order 7, Rule 11 CPC. In support of his contention, learned counsel for the appellant has placed reliance on the following judgments:-
1. Kishore Samrite v. State of Uttar Pradesh and others: (2013) Supreme Court Cases 398.
2. Exphar SA and another v. Eupharma Laboratories Ltd. and another: (2004) 3 Supreme Court Cases 688.
3. Ramesh B. Desai and others v. Bipin Vadilal Mehta and others: (2006) 5 Supreme Court Cases 638.
4. Satti Pardesi Samadhi and Pillayar Temple v. M. Sankuntala (dead) through Legal Representatives and others: (2015) 5 Supreme Court Cases 674.
5.Civil Appeal No. 3500 of 2018 (Chhotanben and another v. Kiritbhai Jalkrushnabhai Thakkar and others).
In the judgments placed before us by counsel for appellant, the principle settled is to the effect that while considering the application under order 7 Rule 11 CPC, the averments made in the plaint alone have to be seen and it is not permissible to look into the pleas raised in the written statement or to any piece of evidence relied upon by the defendant and an issue including requiring inquiry into the facts cannot be treated as preliminary issue.
There is no dispute on the principle settled with respect to dealing with the application under Order 7 Rule 11 CPC, which is to the effect that the plea raised by the defendant in the written statement or evidence placed by the defendant is not liable to be considered at the time of deciding of application under Order 7 Rule 11 CPC.
The facts of the present case, in brief, are as under:-
The appellant/plaintiff filed a plaint/suit for permanant injunction with respect to plot bearing Khasra No. 115 Jarnailganj, Lucknow and Khasra No.19 Rajjabganj, Lucknow, in the court of Civil Judge (Senior Division), Mohanlalganj, Lucknow. The said suit was registered as regular Suit No. 2003 of 2018 in the Court of Civil Judge (Senior Division), Mohanlalganj, Lucknow and notices were issued to the defendants/respondents and with regard to cause of action and territorial jurisdication, the necessary averments have been made in para 34 of the plaint. Relevant part of para 34 of the plaint is quoted below:-
"The cause of action has accrued to the Plaintiff against the defendants within the jurisdiction of this Hon'ble Court."
In the plaint, it has been stated that the plaintiff is recorded tenure holder of Khasra No. 115 Jarnailganj, Lucknow and Khasra No.19 Rajjabganj, Lucknow, as detailed in Para 1 of the plaint. It is also evident from the contents of the plaint and document(s) on record that the basis of the suit is registered sale deed dated 17.07.1962 (executed on 15.06.1962) as on the basis of the said sale deed the plaintiff/appellant is claiming that he became the owner in possession of Khasra No. 115 Jarnailganj, Lucknow and Khasra No.19 Rajjabganj, Lucknow, in issue, and it has also been mentioned in the plaint that some part of the said land was sold through sale deed dated 28.09.2017 to M/s Giriraj Udyog Limited to M/s One-Up Automobiles Private Limited (defendant no.1) under the garb of sale deed dated 28.09.2017, the defendant nos. 1 to 6 are claiming their right over the property of the plaintiff and dispute relates to Khasra No. 115 Jarnailganj, Lucknow and Khasra No.19 Rajjabganj, Lucknow and accordingly, it has been prayed in the plaint that decree of permanent injunction be passed against restraining the defendants their agents, assignees, labourers and persons claiming through them from raising any construction over the property in issue i.e. Khasra No. 115 Jarnailganj, Lucknow and Khasra No.19 Rajjabganj, Lucknow.
It is necessary to take note of the fact that the relevant details pertaining to sale deeds, mentioned hereinabove, i.e. registered sale deeds dated 17.07.1962 (executed on 15.06.1962) and 28.09.2017 are duly mentioned in the plaint and the appellant/plaintiff also filed the copy of the relevant sale deeds through list of documents filed along with the plaint/suit on 11.10.2018, as basis of suit.
It is also alleged in the plaint that M/s One-Up Automobiles Private Limited (defendant no.1) is raising the construction over the property in issue and accordingly the prayer has been made in the suit for permanent injuction to the effect that defendants, their agents/assignees may be restrained from raising the construction over the property in issue.
Details of relevant sale deeds and transactions are part and parcel of the plaint and fully described in the plaint. It also appears from record that the appellant/plaintiff in support of his contention/averments made in the plaint, has filed 14 documents along with the list of documents filed on 11.10.2018 (the date of filing of the suit). It reveals from the list of documents that the sale deed dated 15.06.1962 registered on 17.07.1962 was also filed by the plaintiff along with the list of documents filed on 11.10.2018. From the contents of sale deed executed on 15.06.1962 registered on 17.06.1962, it is evident that at relevant time the property in issue was situated within the territorial jurisdiction of P.S. Sadatganj, Lucknow.
This fact has not been disclosed in the plaint either in para 4 or in para 6 or in para 30-34 (wherein the plaintiff has pleaded with respect to the cause of action and jurisdiction).
At this juncture, it is pertinent to mention that the point of jurisdiction has to be specifically pleaded in the plaint, in detail, mentioning therein that how the Court is having territorial jurisdiction to entertain and try the suit whereas in para 34, the contents with respect to the jurisdiction are vague and there is no mention with respect to area, ward/Police Station in which the property in issue situates, as the same is necessary for holding the point of territotrial jurisdiction.
It appears from the record that after service of notice, the defendant appeared before the trial court and filed the objection under Order 7 Rule 11 of CPC as well as an application for rejection of plaint for want of territorial jurisdiction on 22.10.2018. Along with the application for rejection of plaint for want of territorial jurisdiction, the defendant filed the copy of the Appendix-12 of General Rules, Civil, showing the jurisdiction of the Court of Civil Judge (Senior Division), Mohanlalganj, Lucknow and to the same, objections on behalf of the appellant/plaintiff were filed on 24.10.2018 and in the said objections on the issue of jurisdiction, it has been stated that the Court has jurisdiction as the property situates within the territorial jurisdiction of P.S. Chauk.
On the basis of the pleadings and documents or record, the submission of the counsel for the appellant is to the effect that trial court was having the jurisdiction to entertain and try the suit and even then the trial court has passed the order of returning the plaint of plaintiff on 27.10.2018 and at the time of considering the applications moved by the defendant/respondent dated 22.10.2018, the trial court has exceeded its jurisdiction in considering the contents of the applications moved by the defendant on 22.10.2018 as the principle settled by the Hon'ble Apex Court as well as this Court on the issue of dealing with the applicaiton under Order 7 Rule 11 of CPC is to the effect that only contents of the plaint has to be considered and the plea raised or evidence placed by the defendant cannot be taken into account.
Per contra, the submission of learned counsel for the respondent/defendant is that there is no dispute/quarrel on the issue settled by this Hon'ble Court as well as by the Hon'ble Apex Court that while dealing with the application under order 7 Rule 11 CPC, it is the plaint which has to be considered and no reliance can be placed on the contents of the written statement or evidence or document filed/adduced by the defendant/respondent. Further submission of counsel for the respondent/defendant is that in the case before the trial court, the defendant has not filed the written statement nor it has been considered and, in fact, two applications were moved one for rejection of plaint and another under order 7 Rule 11 CPC on 22.10.2018 and along with the application for rejection of plaint for want of jurisdiction, the relevant provision/part of General Rule Civil was placed/filed before the trial court for ready reference and the said provision cannot be and is not liable to be treated as evidence filed on behalf of the defendant.
Further submission of the counsel for the defendant/respondent is that no interference is required in the instant case as plaintiff/appellant failed to approach the trial court with clean hands.
On this, the reply of counsel for the appellant is to the effect that there is no concealment in the plaint and in fact the defendant wants to grab the land under the umbrella of sale deed dated 28.09.2017 and the defendants are at fault.
The issue before us is related to Order 7 Rule 11 and as such, we do not think it proper to scrutinize the facts and give finding on this aspect, as we think it would prejudice the case before the trial court.
It is further submitted by counsel for the defendant/respondent that the trial court while considering the applications and passing the order dated 27.10.2018 has not committed any illegality nor exceeded its jurisdiction as the trial court only considered the averments made in the plaint and the documents filed by the plaintiff in support of the plaint through list of documents filed on 11.10.2018.
The issue before this Court as culled out from the submissions of the counsel for the parties as well as the record, to the effect that whether the trial court, while dealing with the applications under order 7 Rule 11 CPC, can consider the documents filed in support of the plaint or not.
To answer the above question, it is relevant to consider two provisions of Code of Civil Procedure i.e. Rule 11 and Rule 14 of Order 7 of CPC. The said provisions are quoted below for ready reference:-
Rule 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 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 from 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.] Rule 14. Production of document on which plaintiff sues or relies.--(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiffs witnesses, or handed over to a witness merely to refresh his memory.] The above quoted provision i.e. Rule 11 relates to rejection of plaint on certain grounds mentioned therein and Rule 14 relates to production of documents by the plaintiff on which plaintiff sues or relies. A perusal of the Rule 14 would show that if a plaintiff sues upon a document or relies upon a document in that event he shall produce the said documents in Court when the plaint is presented. In other words, the plaintiff is under obligation to file the basis of the suit/document on which the plaint is based at the time of filing of the suit or presenting the plaint.
Needless to say that both the provisions are part and parcel of Order 7. Rule 10 of Order 7 authorises the Court to return the plaint for want of jurisdiction for presenting the same in competent court of jurisdiction.
A conjoint reading of the aforesaid provisions would show that the Court is empowered to consider the documents filed under Order 7 Rule 14, being filed in support of allegations/averments made in the plaint as basis of suit/plaint, at the time of dealing with the application moved either under Rule 10 or Under Rule 11 of the CPC.
Our view is fortified by the judgment of the Hon'ble Apex Court reported in 2004 (9) SCC 512. The relevant portion of the judgment of the Hon'ble Apex Court is quoted below:-
"Para 141. Order 7 Rule 14 of the Code of Civil Procudure provides as follows:
"14. Procution of document on which plaintiff sues or relies.-(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3) Where a document or a copy thereof is not filed with the plaint under this rule, it shall not be allowed to be received in evidence on behalf of the plaintiff at the hearing of the suit.
(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory."
Para 142. In the instant case the Club not only annexed certain documents with the plaint but also filed a large number of documents therewith. Those documents having regard to Order 7 Rule 14 of the Code of Civil Procedure are required to be taken into consideration for the purpose of disposal of application under Order 7 Rule 11(a) of the Code of Civil Procedure."
In the instant case, from the order dated 27.10.2018, under appeal, it appears that the trial court while considering the applications under Order 7, considered the averments made in the plaint and the sale deed executed 15.06.1962 registered on 17.07.1962 (appears to be inadvertently mentioned in the order under appeal as sale deed of 1965), i.e. document filed through list of documents dated 11.10.2018 (under Order 7 Rule 14 CPC) in support of plaint allegations as well as Appendix-12 of General Rule Civil and thereafter, came to the conclusion that the property in issue situate within the territorial jurisdiction of P.S. Sadatganj, Lucknow and thereafter, on the basis of the provisions of General Rule Civil held that the Court has no jurisdiction to entertain and try the suit and pass order of returning the plaint to the plaintiff for presenting the same before the Competent Court of jurisdiction.
On the basis of above quoted provisions and the view expressed by the Hon'ble Apex Court, this Court is of the view that documents filed under Order 7 Rule 14 by the plaintiff can be considered while dealing with the application under Order 7 Rule 11. We are therefore, of the view that the order under appeal dated 27.10.2018 is not liable to be interfered with. Appeal has no merit.
It is, accordingly, dismissed.
Order Date:- 08.02.2019 Arun/-