Punjab-Haryana High Court
Class India Ltd. And Anr. vs A.K. Chopra And Ors. on 10 March, 2008
Equivalent citations: AIR2008P&H116, AIR 2008 PUNJAB AND HARYANA 116, 2008 (5) ALL LJ NOC 1021, 2008 (4) AIR KAR R 645, 2008 A I H C (NOC) 640 (P&H)
Author: Rajive Bhalla
Bench: Rajive Bhalla
ORDER Rajive Bhalla, J.
1. Challenge in this revision petition is to an order, dated 17-10-2007, passed by the Additional Civil Judge (Senior Division), Faridabad dismissing the petitioners' application, filed under Order 7, Rule 11, CPC on the ground that the application is not maintainable.
2. The petitioners/defendants filed an application under Order 7, Rule 11 for dismissal of the suit on the plea that the suit for enforcement of a contract for personal service is not maintainable. It was also prayed that as the plaintiff had failed to affix appropriate Court-fee on the prayer for damages, the suit be dismissed. The learned trial Court dismissed the application by holding that It is not maintainable, as issues have been framed and evidence Is to be led,
3. Counsel for the petitioners, places reliance upon a judgment of the Hon'ble Supreme Court In Saleem Bhai and Ors. v. State of Maharashtra and Ors. , to contend that an application, under Order 7, Rule 11 of the CPC can be filed at any stage of the suit, It is, therefore, asserted that the trial Court committed a fundamental error in dismissing the application.
4. Counsel for the respondents, on the other hand, submits that the revision petition is not maintainable. A Full Bench of this Court in Arjan Motors Malout Partnership Firm v. Girdhara Singh and Ors. AIR 1978 Punjab and Haryana 25, has held that the Court-fee being a matter between the Court and the plaintiff, a defendant has no right to file a revision.
5. I have heard counsel for the parties and perused the impugned order.
Respondent No. 1 filed a suit praying for the grant of a declaration that his termination is illegal with an alternative prayer for award of damages quantified at Rs. 25 lacs. After issues were framed, the petitioners filed an application under Order 7, Rule 11 of the CPC praying for dismissal of the suit (a) for failure to affix ad valorem Court-fee on the relief for damages, and (b) as a suit for declaration to enforce a contract of personal service is not maintainable. The trial Court held that as issues had been framed and evidence was to be led the application was not maintainable.
6. Order 7, Rule 11 of the CPC confers powers upon a Court to reject a plaint provided it discloses any of the disabilities/jurisdictional impediments, detailed therein. Though Order 7, of the CPC bears the title "Plaint" and would appear to suggest, as argued by counsel for the respondents that the provisions of Order 7, Rule 11 of the CPC cannot be invoked after issues are framed, a considered appraisal of the provisions of Order 7, Rule 11 do not disclose any impediment as to the stage for filing of an application thereunder or for a Court to exercise its jurisdiction. Impediments as to the discharge of jurisdiction, whether by specific intent or by inference, should not be read into statutory provisions so as to impede the rights of parties or the jurisdiction of a Court, moreso where no such restriction has been placed by legislature. A cause, barred for lack of jurisdiction, may circumstances permitting, be validly tested by filing an application, under Order 7, Rule 11 of the CPC at any stage of the suit. The plain language employed in Order 7, Rule 11 of the CPC does not support the conclusion, recorded by the trial Court that the application was not maintainable or that such an application must be filed at or before a particular stage. As a general practice, however, as distinguished from any rule of law, an application, under Order 7, Rule 11 of the CPC, should be filed expeditiously so as to I avoid unnecessary wastage of Court time. A judgment of the Hon'ble Supreme Court in Saleem Bhai and Ors. case AIR 2003 SC 7,59 (supra), may be quoted to supplement the above conclusion. Para 9 of the aforementioned judgment reads as follows:
9. A perusal of Order 7, Rule 11, CPC makes it clear that the relevant facts which need to be looked into for deciding an application there under are the averments in the plaint. The trial Court can exercise the power under Order 7, Rule 11, CPC 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 Clauses (a) and (d) of Rule 11 of Order 7, 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, therefore, a direction to file the written statement without deciding the application under Order 7, Rule 11, CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial Court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the Court as well as procedural irregularity. The High Court, however, did not advert to these aspects.
7. In this view of the matter, the revision petition is allowed and the order, dated 17-10-2007 is set aside. The matter is remitted to the trial Court for an adjudication afresh of the application, filed under Order 7, Rule 11 of the CPC, in accordance with law.