Allahabad High Court
Shriram Educational And Charitable ... vs Alok Swaroop And 2 Others on 23 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 2741
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 54 Case :- MATTERS UNDER ARTICLE 227 No. - 4968 of 2019 Petitioner :- Shriram Educational And Charitable Trust And Another Respondent :- Alok Swaroop And 2 Others Counsel for Petitioner :- Shreya Gupta,Ravi Anand Agarwal,Shri Rakesh Pande Counsel for Respondent :- Bipin Lal Srivastava Hon'ble Ajit Kumar,J.
1. Heard Sri Rakesh Pande, learned Senior Counsel assisted by Ms. Shreya Gupta, learned counsel for the petitioner and Sri S.K. Varma, learned Senior Counsel assisted by Sri Bipin Lal Srivastava, learned counsel for the contesting respondents and learned Standing Counsel for the State.
2. By invoking the power of superintendence of this Court under Article 227 of the Constitution of India, the petitioner has questioned the propriety and legality of the order passed by the Additional Civil Judge (Senior Division), Court No.4, Muzaffarnagar dated 13th May, 2019 in rejecting the application of the petitioner bearing Paper No.- 43-C filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'C.P.C.').
3. Briefly stated the facts of the case are that the contesting respondents and the petitioner entered into the some agreement whereunder the premises in question were leased out on rent to be paid as per the terms and agreement reached between the parties. It appears that there arose some dispute regarding dues of rent and consequently arrears which the plaintiffs-respondents claimed to have remained unpaid for long compelling them to institute a suit seeking a relief for recovery of dues in terms of rent as well as interest thereupon for delayed payment. The suit was instituted on 16th October, 2018 and was registered as O.S. No.- 575 of 2018. From the perusal of relief clause of plaint it transpires that a sum of Rs.22,51,565/- was claimed towards arrears of rent accrued between 1st April, 2017 and 30th June, 2017 and also 1st April, 2016 and 31st August, 2016 and further a sum of Rs.11,96,970/- was claimed as interest thereupon. It transpires that subsequently the contesting respondents came to institute another suit bearing O.S. No.- 670 of 2018 that was registered on 7th December, 2018 and this time a sum of Rs.16,44,940/- were claimed towards the arrears of rent and further a sum of Rs.5,82,987/- were claimed towards the interest for the period between 1st July, 2017 and 31st October, 2017. Both the suits were filed as summary suits under Order XXXVII read with Section 151 of C.P.C.
4. The petitioners who were defendant in both the suits filed an application under Order VII Rule 11 of C.P.C. in O.S. No.- 674 of 2018 taking the plea that suit was clearly barred by law in terms of the Order XXXVII Rule 2 sub-rule 1-B of C.P.C. in the first instance and further the second suit would be barred for the relief which could have been claimed under the first suit and the petitioner having chosen not to seek such relief in the said earlier suit, the suit was barred under Order 2 Rule 2 of C.P.C. in the light of the U.P. amendment.
5. The argument advanced by the learned counsel for the petitioner is that the suit under Order XXXVII is maintainable in the event any of the conditions prescribed for under Rule 2 are met and according to him, Rule 2 (I) is attracted in the present case as the claim is sought to be set up on the basis of the written lease agreement reached between the parties. In order to correctly appreciate the controversy, learned counsel for the petitioner has drawn the attention of the Court towards paragraph 8 of the plaint in which it has been stated that there was a lease agreement reached between the parties on 29th June, 2010 and according to which either Rs.1,00,000/- or an amount equivalent to 30% of the receipts obtained in the name of tuition fee/ admission fee etc., whichever higher, was to be paid as lease rent but at the same time, vide paragraph 12 of the plaint the amount of dues towards the lease rent were sought to be enhanced and claimed on the basis of the some admission made by the present petitioner in Writ-C No.- 15061 of 2018 and, therefore, it is argued that this stand taken in the plaint cannot be a ground to institute a suit for recovery of rent and arrears as a summary suit under order XXXVII of C.P.C. He further argued that this paragraph coming in the plaint has been made the basis of the relief ultimately claimed in the suit.
6. On the point of Order 2 Rule 2 of C.P.C., Mr. Pande has sought to urge that in view of the earlier suit filed by the present plaintiff-defendant registered as O.S. No. 575 of 2018, wherein the claim was set up for arrears of rent of different stages, would have covered the stage for which the decree for recovery of rent in the present suit has been prayed for but the plaintiff having not done so, it would amount to relinquishment of claim on the part of the plaintiffs and therefore, the suit was clearly barred by Order 2 Rule 2 of C.P.C. He submits that there is an admission of the plaintiffs themselves, as has come to be recorded in the order, that the claim for the dues towards the rent in the second suit was from 1st July, 2017 to 31st October, 2017 whcih included the period of 1st April, 2017 till 30th June, 2017 claimed in the earlier suit and, therefore, it is argued that the period would have been included in the earlier suit filed on 16th October, 2018.
7. Thus, according to him and in view of the submissions so advanced and the pleadings raised by the respondent-plaintiff in the plaint, the plaint in the suit bearing O.S. No.- 670 of 2018 was liable to be rejected.
8. Per contra, Sri S.K. Varma, learned Senior Advocate has vehemently urged that the present petition under Article 227 of the Constitution, was not maintainable as the proceedings under Order VII Rule 11 of C.P.C. are independent proceedings and dismissal of the application in the said order amounts to termination finally of the proceedings relating to the maintainability of the suit and, therefore, the revision would lie in court below and not the petition under Article 227 of the Constitution.
9. Learned Counsel for the petitioner for this purpose has placed heavy reliance upon the judgment of the Apex Court in the case of Surya Dev Rai v. Ram Chander Rai, 2003 SC 3044 and the judgment of the Apex Court in the case of Durga Prasad v. Naveen Chandra and others, JT 1996 (3) SC 564.
10. Besides above, Sri Varma argued that ground of challenge to plaint are basically institutional in nature and the suit otherwise not being barred taking the plaint in its entirety, Order VII Rule 11 application was rightly rejected.
11. Countering the above argument of preliminary objection raised by the learned Senior Counsel, Sri Pande appearing for the petitioners has placed reliance upon two judgments of this Court: firstly, in the case of U.P. Rajkiya Nirman Nigam Ltd. v. M/s. C & C Constructions and another, 2019 (132) ALR 389 and the judgment in the case of Smt. Shivpatti Devi and others v. Yudhishthir Dhar Dubey and others, 2016 (2) JCLR 386 (All).
12. Having heard learned counsel for the parties and their respective arguments advanced across the Bar and having gone through the pleadings available on record from the judgments cited by the parties, I would like to deal first with preliminary objection raised by Sri Varma, learned Senior Counsel.
13. The judgment cited by the learned counsel for the petitioners, in the case of U.P. Rajkiya Nirman Nigam (supra), chiefly deals with the powers of High Court under Section 115 of C.P.C. and Article 226 of the Constitution. The question with regard to the argument advanced as preliminary objection, in my considered opinion, has not been dealt with in the said judgment. So far the jurisdiction in terms of judicial discretion under Article 227 of the Constitution even while the power lies with Court sitting in revision, I would come to deal with a little later. Insofar as the judgment in case of Smt. Shivpatti Devi (supra) is concerned, in the said case the Court declines to interfere in civil revision on the ground that the question raised in the application under Order VII Rule 11 of C.P.C. involved mix question of fact and law which could not have been decided at the preliminary stage and, therefore, it was held that there was no failure of justice if the impugned order was to sustain and if the order sustained it would not dispose of finally any suit or proceedings.
14. From a bare reading of the aforesaid judgment it is clear that the Court refused to interfere in the revision petition in the said case in exercise of power in the revision itself on merits instead of holding that revision was not maintainable and, therefore, the judgment is also of no help to the petitioner.
15. Coming to the judgment cited by Sri Varma, learned Senior Counsel, in the case of Durga Prasad (supra), the Court in the said case dealt with order against the dismissal of the order 9 Rule 13 application. The writ petition was filed instead of revision petition and the Court held that the order was not appealable under Order 43 Rule 1 read with Section 104 of C.P.C. but still a revision would be maintainable. Vide paragraph 3 of the said judgment the Apex Court held thus:-
"3. On the last occasion when the matter had come up for admission, we had asked the learned counsel as to how the writ petition is maintainable in the circumstances. The learned counsel sought for and the matter was adjourned. Thus it has come up today. The appellant's counsel contended that three remedies are open to the appellant under the CPC, namely, right of appeal under Section 96 or appeal under Order 43 read with Section 104 or a revision under Section 115 CPC. In view of the fact that the matter does not come within the four corners of any of the three remedies, the appellant is left with no other remedy except approaching the High Court under Article 226. It is true that the impugned order is not appealable one either under Section 96 or under Order 43 Rule 1 read with Section 104 CPC. But still a revision would be maintainable and whether the order could be revised or not is a matter to be considered by the High Court on merits. But instead of availing of that remedy, the appellant has invoked jurisdiction under Article 226 which is not warranted and the procedure prescribed under C.P.C. cannot be bye-passed by availing of the remedy not maintainable under Article 226. Under these circumstances, we decline to interfere with the order. It is open to the appellant to avail of such remedy as is open under law."
16. The next judgment cited is the case of Surya Dev Rai (supra), Sri Varma, learned Senior Counsel, has placed heavy reliance on paragraph 38 of the said judgment which is reproduced hereunder:-
"38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:-
(1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
17. Placing emphasis upon point No.-9 in the conclusive paragraph 39 of the judgment, Sri Varma, submitted that the power of superintendence of the High Court has to be very sparingly exercised and the court would always relegating for remedy of revision, if available in law. I find that the Apex Court has laid emphasis on the point that the exercise of jurisdiction under Articles 226 and 227 of the Constitution cannot be tight down in a straight jacket formula. The Apex Court observed that no rigid rules can be prescribed for rendering the High Court in a state of dilemma; it observed that there may be cases were a stitch in time would save nine. It was left open for the High Court to exercise the discretion as per its own judicial conscience.
18. Considering the cope and ambit of Section 115 of C.P.C. the Apex Court in the case of Baldevdas Shivlal and another v. Filmistan Distributors (India) Pvt. Ltd and others; 1969 (2) SCC 201 held that expression 'case' does not connote to entirely of the matter in dispute in an action and if it is interpreted as an entire proceedings and not a part of the proceedings, would impose an unwarranted restrictions on the exercise of power of superintendence. Seeking for the Bench Justice J.L. Shah (as His Lordship then was) observed "A case may be said to be decided, if the court adjudicates for the purpose of suit same right or obligation of the parties in contrary ..........."
19. Learned Senior Advocate Sri Pande has sought to distinguish settled authorities with U.P. amendment to Section 115 of C.P.C. where words are 'suit or other proceedings finally decided'.
20. In order to deal with this above argument one has to understand what is suit and what could be 'other proceedings' in the in intendment of the state legislature.
21. Suit is an action to set up a claim and instituted for adjudication thereof. A suit proceeding has many stages: like registration of plaint as an action and rejection to its maintainability; framing of issues; leading of evidence, calling for reports and contesting issues of fact etc. The argument is that if application is allowed under Order VII Rule 11 rejecting the plaint it amounts to termination of the suit itself and such an order is revisable but rejection of application would not fall in the category of termination of 'other proceedings'. This argument does not appeal to reason. 'Other proceedings' would certainly mean proceedings where suit is on with registration of suit and issuance of summons.
22. Now in order to test the present case in the light of the legal position discussed above it is first necessary to examine as to what is the nature of the order if passed in terminating the proceedings either way, under Order VII Rule 11 of C.P.C. In order to appreciate the legal position, the provisions as contained under Order VII Rule 11 of C.P.C. are reproduced hereunder:-
"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, failed 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-papers 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-papers, 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."
23. From the bare reading of the aforesaid provisions it clearly transpires that where the plaint is challenged on the ground that the suit being not maintainable, it turns out to be an independent point in issue at the preliminary stage to deal with maintainability of the suit. Once an application under Order VII Rule 11 of C.P.C. comes to be allowed, the suit proceedings automatically stands terminated and the point stands decided in favour of the defendant raising objection. Why one should be forced to undergo a long hectic and burdensome procedure under civil law, if the very plaint at the threshold deserves rejection. Keeping this object in mind the Legislature conceived a proceeding under Order VII Rule 11 in C.P.C. before taking off a suit proceeding.
24. Thus, for the purposes of plaint case, every suit proceedings stands terminated with the rejection of the plaint and the order attains finality in respect of the plaintiff, who wants to pursue the suit seeking appropriate relief as claimed for. However, in case if the application under Order VII Rule 11 is rejected then for the purposes of defendant the point stands finally determined and the plea of maintainability of the suit comes to be rejected against him. In either of the situation, the order amounts to a case to determine terminating in the proceedings of that stage in terms of U.P. amendment with the Central Act and, therefore, the revision under Section 115 C.P.C., would be maintainable.
25. So what the testing anvil is that a proceeding if instituted on a miscellaneous application should be concluded with its disposal by an order after due adjudication. Such proceedings would amount to the word and expression 'other proceedings'. In view of the above what I have held in foregoing paragraphs of this judgment, emerges out to be legal position that an order rejecting application under Order VII Rule 11 of C.P.C., is therefore, held to be an order revisable under Section 115 of C.P.C.
26. The judgment in Surya Dev Rai (supra) is also a complete answer to the question of exercise of power of superintendence under Article 227 even while the remedy of revision is availability. Invoking jurisdiction of this Court under Article 227 should not be left open to exercise the option to apply for such relief ordinarily but where the Court finds sending back for revision would only amount to killing time and this Court can examine the exercise of jurisdiction by a Court sub-ordinate to it, on legal pleas, this Court can always exercise jurisdiction of superintendence. In the case like the present one where the issue is of maintainability of suit and plaint is to be tested on yardstick of clauses provided for under Order VII Rule 11 C.P.C., this Court looking to the plaint case easily examine whether jurisdiction has been properly exercised by the trial court and if upheld would not result in any miscarriage of justice. So, the issue I had earlier referred to be dealt with later, stands answered in favour of the petitioner for maintainability of this petition.
27. In view of the above, in my considered opinion, while the revision would be maintainable against the order passed under Order VII Rule 11 of C.P.C., in the given facts and circumstances of the present case, it would be a futile exercise to remit the matter to avail alternative remedy of revision besides sheer wastage of time. It would be cumbersome for the petitioner to relegate him to the remedy of revision in the facts and circumstances of the case. Accordingly, I proceed to consider and decide this petition under Article 227 of the Constitution.
28. Insofar as the application under Order VII Rule 11 of C.P.C. is concerned, litigant has to bear in mind that objection can be of two categories: one institutional objection; and the other one relating to the maintainability of the suit itself as being barred by law.
29. So far as the first category of objection is concerned, it permits the trial of the suit as it relates to the issues involved in the suit where a point needed determination as a point involving mixed question of law and facts and so far second category of the objection is concerned, it goes to the very root of the matter and if the Court, from a bare reading of plaint, can come to conclude that not only the plaint does not disclose any cause of action but also the suit is barred by any law and its continuance would hit the very jurisdiction of court, it would reject the plaint at the very threshold.
30. In the case in hand the suit has been instituted for recovery of arrears of rent and interest thereupon and the plea taken in the plaint is that in spite of the agreement reached between the parties, the defendant-petitioner fails to pay the rent and thus arrears have accrued. From the entire pleadings as have come to be raiseed in the plaint which has been entertained and the suit has been instituted as a summary suit, I find that the plea taken is that the defendants are arrears of rent. The defendants-petitioners have not denied agreement between the parties and their status as a lease holder under the lease agreement. This being the fact situation, the question would be how the arrears have accrued and whether the claim set up is right or wrong. This, in the considered opinion of the Court, is a pure question of fact emerging out of an agreement and conduct of affairs by the parties. The question whether plea taken in paragraph 12 is legally sustainable or not and would result in the claim not arising out of agreement and so consequently resulting it being held not maintainable for the relief claim, is a mixed question of law and fact. Similarly, the question whether the earlier suit and the pleadings raised therein amounted to relinquishment of the rights for the period recovery of rent having not been claimed in the said suit and, therefore, subsequent suit would be clearly barred under Order 2 Rule 2 of C.P.C. is also a mixed question of fact and law and needed to be adjudicated upon. At this stage, this Court may not ignore that statute does not bar a suit of this kind where arrears of rent and interest thereupon are claimed by landlord/ lessor from the tenant/ lessee but the question whether such a suit would be maintainable under Order XXXVII or not considering the plea taken in the plaint and defence set up against it and whether such a suit is also barred by Order 2 Rule 2 of C.P.C. considering the claim made in the earlier suit by the same plaintiff against the same defendant, is all to be determined by the trial court after framing the issues and, therefore, in the considered opinion of the Court, these are the institutional objections and required to be adjudicated upon after the issues are framed and the parties lead evidence.
31. The argument advanced by Sri Rakesh Pande, learned Senior Counsel appearing for the petitioner that there has been concealment of the material fact regarding earlier filing of the suit and there have been mis-statements of fact in the plaint regarding obligation upon the petitioner to pay the rent and its amount would be taken into account while considering an application under Order VII Rule 11 of C.P.C., cannot be accepted. The legal position as has emerged from the series of judgment of the Apex Court is that the Court has to examine only the plaint i.e. the pleadings raised and the relief claimed for. In the case of Abdul Gafur and another v. State of Uttarakhand and others; 2008 (10) SCC 97 vide paragraphs 16, 17, 18 and 19 the Apex Court has held thus:-
"16. Section 9 of the Code provides that civil court shall have jurisdiction to try all suits of a civil nature excepting the suits of which their cognizance is either expressly or impliedly barred. To put it differently, as per Section 9 of the Code, in all types of civil disputes, civil courts have inherent jurisdiction unless a part of that jurisdiction is carved out from such jurisdiction, expressly or by necessary implication by any statutory provision and conferred on (1977) 4 SCC 467 other Tribunal or Authority. Thus, the law confers on every person an inherent right to bring a suit of civil nature of one's choice, at one's peril, howsoever frivolous the claim may be, unless it is barred by a statute.
17. In Smt. Ganga Bai Vs. Vijay Kumar & Ors.4, this Court had observed as under:
"15. ....... There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at ones peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit."
18. In Dhannalal Vs. Kalawatibai & Ors.5 relying on the afore-extracted observation in Ganga Bai's case (supra), this Court had held as follows:
"23. The plaintiff is dominus litis, that is, master of, or having dominion over, the case. He is the person who has carriage and control of an action. In case of conflict of jurisdiction the choice ought to lie with (1974) 2 SCC 393 (2002) 6 SCC 16 the plaintiff to choose the forum best suited to him unless there be a rule of law excluding access to a forum of plaintiff's choice or permitting recourse to a forum will be opposed to public policy or will be an abuse of the process of law."
19. It is trite that the rule of pleadings postulate that a plaint must contain material facts. When the plaint read as a whole does not disclose material facts giving rise to a cause of action which can be entertained by a civil court, it may be rejected in terms of Order 7, Rule 11 of the Code. Similarly, a plea of bar to jurisdiction of a civil court has to be considered having regard to the contentions raised in the plaint. For the said purpose, averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety and the court would not be justified in determining the question, one way or the other, only having regard to the reliefs claimed de'hors the factual averments made in the plaint. (See: Church of North India Vs. Lavajibhai Ratanjibhai & Ors.6) (2005) 10 SCC 760."
(emphasis added)
32. In the case of Saleem Bhai and others v. State of Maharashtra and others; 2003 (1) SCC 557 vide paragraph 9 the Apex Court has held thus:-
"9. A perusal of Order VII Rule 11 C.P.C. makes it clear 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 under Order VII Rule 11 C.P.C. 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 VII C.P.C. 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 VII Rule 11 C.P.C. 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."
33. In the case of Madanuri Sri Rama Chandra Murthy v. Syed Jalal, 2017 (13) SCC 174 vide paragraph 7 the Apex Court has observed thus:-
"7. The plaint can be rejected under Order VII Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order VII Rule 11, CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order VII Rule 11, CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order VII Rule 11 of CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when, the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order VII Rule 11 of CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."
(emphasis added)
34. Further, I find support in my observations regarding the present case being one of the cases where only institutional grounds have been taken and needed determination/ adjudication by the Court in the suit, from the judgment by the Apex Court in the case of Central Provident Fund Commissioner, New Delhi and others v. Lala J.R. Education Society and others; 2016 (14) SCC 679 in which while considering on the merit of the application under Order VII Rule 11 of C.P.C. the Court observed that the plaint has to be seen and nothing else. Vide paragraphs 3, 4 and 5 of the said judgment the Court has held thus:-
"3. On an application filed under Order VII, Rule 11, CPC, the Civil Court can only see the pleadings in the plaint and not anything else including written statement.
4. The main grievance urged in the plaint is that the procedure under the Act has not been followed and, therefore, the appellants are entitled to file a suit. If that be so, the plaintiff is entitled to file a suit, as held by this Court in the case of Dhulabhai and Others Vs. The State of Madhya Pradesh and Anr. reported in (1968) 3 SCR 662.
5. According to the appellants, the respondents have suppressed crucial facts in the plaint, which if seen, the suit is only to be dismissed at the threshold. Rejection of a plaint on institutional grounds is different from dismissal of a suit at pre-trial stage on the ground of maintainability. For dismissal on a preliminary issue, the Court is entitled and liable to look into the entire documents including those furnished by the defendant."
35. Thus, applying the above law to the facts of the present case, I do not find any manifest error of law or facts in the order passed by the court below while rejecting the application under Order VII Rule 11 of C.P.C. Equally, I do not find any flaw in exercise of jurisdiction of the trial judge in passing the order impugned nor, I find any likelihood of miscarriage of justice if suit is tried on merits including the issue of maintainability or institution of suit. I, therefore, decline to interfere with the order passed by the trial judge rejecting application under Order VII Rule 11 C.P.C.
36. Since the crucial question of maintainability of plaint case under Order XXXVII of C.P.C. and maintainability of the second suit on the ground of Order 2 Rule 2 has come to be raised, in my considered opinion, those points can be considered and disposed of as preliminary issues as far as O.S. No.- 670 of 2018 is concerned.
37. Learned counsels appearing for the plaintiffs-respondents also does not dispute the above question being decided afresh as preliminary issues.
38. Accordingly, I dispose of this petition with the following directions:-
(A). Either of the parties shall appear before the court below and shall place before the trial court a misc. application along with certified copy of this order praying for framing of those two issues as observed hereinabove and the court below shall frame those two issues as preliminary issues and shall first decide the same before proceedings further in the suit on merits.
(B). With the framing of the issues parties shall be permitted to lead evidence in support of their claim and shall be heard in so far as preliminary issues are concerned.
39. The issues shall be disposed of as expeditiously as possible preferably within a period of three months from the date of production of certified copy of this order.
40. It is further provided that above time period is being fixed only on the undertaking by the parties through their respective counsels that they will not seek unnecessarily adjournment in the case except for compelling circumstances.
Order Date :- 23.7.2019 Atmesh