Saleem Bhai v. State of Maharashtra AIR 2003 SC 759

Case Summary
  1. Appeal before the Supreme Court by way of Special Leave Petition under Article-136 of the Constitution. Leave granted.
  2. Facts of the case:
    1. The defendants filed an application U/O-7, R-11, seeking dismissal of the plaint of the plaintiff on the grounds that it shows no cause of action (See-O-7, R-11(a). The plaintiff moved an application seeking filing of WS of the defendant U/O-8, R-10, before deciding the defendant’s application U/O-7, R-11.
    1. The trial court decided the plaintiff’s application called for the WS of the defendant before rendering any decision on the defendant’s application.
    1. Aggrieved, the defendant moved the High Court but failed.
    1. Hence, this SLP before the Supreme Court. Leave granted
  3. Question of law before the court:
    1. Whether an application under Order VII Rule 11 C.P.C. ought to be decided on the allegations in the plaint and filing of the written statement by the contesting defendant is irrelevant and unnecessary?
  4. Decision of the Supreme Court:
    1. The decision of whether or not to reject a plaint U/O-7, R-11 has to be made entirely on the basis of the averments made in the plaint and there is no need to ask for the WS of the defendant at this stage. If the plaint does not have a cause of action the court has no option but to reject the plaint.
  5. Important paragraphs from the judgment:

The learned senior counsels appearing for the appellants have contended that having regard to the very nature of the relief claimed by the plaintiffs, the plaints are liable to be rejected under Order VII Rule 11 C.P.C. and that the court ought to have considered the said application or merits instead of giving direction to file written statement which would amount to not exercising the jurisdiction vested in the court. It is further contended that the High Court also did not appreciate that the plaints do not show any cause of action and that the plaint ought to have been rejected as the suit is barred by the principles of res judicata and lis pendence.

The short common question that arises for consideration in these appeals is, whether an application under Order VII Rule 11 C.P.C. ought to be decided on the allegations in the plaint and filing of the written statement by the contesting defendant is irrelevant and unnecessary.

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 there under are the averments in the plaint. The trial court can exercise the power under Order VII Rule 11

C.P.C. at any state 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.

We are, therefore, of the view that for the afore-mentioned reasons, the common order under challenge is liable to be set aside and we, accordingly, do so. We remit the cases to the trial court for deciding the application under Order VII Rule 11 C.P.C. on the basis of the averments in the plaint, after affording an opportunity of being heard to the parties in accordance with law. The civil appeals are, accordingly, allowed.

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