Dismissed

Jagdish Prasad Yadav and Ors. v. Choteylal and Anr.

Allahabad HC19 Feb 2024/5/2024

Case brief

AI extract

What is this about?

Revision filed challenging order rejecting Order VII Rule 11 CPC application on delay and evidence grounds. Bench held maintainability must be decided on plaint averments alone and no case for interference made out.

What did the court decide?

Production of written statement allowed but revision against rejection of permission application dismissed.

Jagdish Prasad Yadav and Ors. Vs Choteylal… — Civil Procedure and Limitation | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:14553

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Court No. - 5

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Case :- CIVIL REVISION No. - 5 of 2024

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Revisionist :- Jagdish Prasad Yadav And Ors. Opposite Party :- Choteylal And Anr. Counsel for Revisionist :- Rajendra Kumar Dubey Counsel for Opposite Party :- Akhilesh Kumar Srivastava,Ratnesh Chandra

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Hon'ble Abdul Moin,J.

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Heard Sri Rajednra Kumar Dubey, learned counsel for the revisionists, and Sri Akhilesh Kumar Srivastava, learned counsel for respondent no.2.

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Instant revision has been filed challenging the order dated 11.12.2023 passed by the learned trial court in Regular Suit No.424 of 2012 in re: Choteylal vs. Siyaram (deceased) and others.

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By the said order, learned trial court has rejected the application filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'Code, 1908') by the defendants therein/revisionists herein.

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The argument of learned counsel for the revisionists is that a perusal of the order dated 11.12.2023 would indicate that the learned trial court has been primarily influenced by the fact that the application under Order VII Rule 11 of the Code, 1908 had been filed after a period of 11 years and thus, the learned trial court rejected the said application.

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Reliance had been placed on the judgment of the Apex Court in the case of R.K. Ojha vs. U.S. Rayudu and another - 2016(14) SCC 275, to contend that an application under Order VII Rule 11 of the Code, 1908 can be filed at any stage and thus

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it is urged that the learned trial court has patently erred in law in rejecting the application filed under Order VII Rule 11 of the Code, 1908 on the said ground.

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Considering the aforesaid, this Court vide order dated 12.02.2024 had required learned counsel for the revisionists to file a copy of the written statement which has been filed along with the supplementary affidavit on 17.02.2024.

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Heard learned counsels for the contesting parties and perused the records.

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From a perusal of the record, it emerges that a regular suit for declaration and mandatory injunction had been filed by respondent no.1 herein before the learned trial court in the year 2012. The defendants therein had filed their written statement in September 2012 itself. Subsequently the defendants filed an application under Order VII Rule 11 of the Code, 1908 before the learned trial court in March, 2023, a copy of which is Annexure-5 to the revision, contending that the suit merits to be dismissed on various grounds including no cause of action having arisen to the plaintiff to file the said suit and the said suit being barred under the provisions of Sections 229-B, 229-D and 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 'Act, 1950'). Certain other grounds were also indicated.

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Learned trial court vide order impugned has rejected the said application on the ground that so far as the maintainability and jurisdiction is concerned, the same cannot be decided by the court without leading of evidence by the parties. Learned trial court also considered the fact that the application under Order VII Rule 11 of the Code, 1908 was filed after a period of 11 years and thus on both the grounds the said application was

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rejected.

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The argument of learned counsel for the revisionists is that a perusal of the application filed under Order VII Rule 11 of the Code, 1908 would indicate that the suit filed by the plaintiff was itself not maintainable keeping in view the specific provisions of the Act, 1950 and no cause of action having accrued to the plaintiff.

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It is settled proposition of law that in order to consider an application under Order VII Rule 11 of the Code, 1908 the court concerned has to scrutinize the averments/pleas in the plaint and at that stage the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on plaint averments (See: Church of Christ Charitable

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Trust & Educational Charitable Society vs. Ponniamman Educational Trust-(2012) 8 SCC 706 ).

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Learned trial court has specifically observed in the order impugned dated 11.12.2023 that so far as the maintainability and jurisdiction is concerned, the same can only be examined after leading of the evidence.

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Once from a perusal of the order impugned dated 11.12.2023 it clearly emerges that the learned trial court has itself indicated that the maintainability and jurisdiction can only be considered after leading of evidence and from a bare reading of the plaint itself the court was not convinced of allowing the application under Order VII Rule 11 of the Code, 1908 consequently even if the learned trial court has observed that the said application has been filed after a period of 11 years the same would not resile from the settled proposition of law in this regard of only the averments made in the plaint to be seen while considering an application under Order VII Rule 11 of the

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Code, 1908.

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Keeping in view the aforesaid discussion no case for interference is made out. Accordingly, the revision is dismissed .

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Order Date :- 19.2.2024 A. Katiyar

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Digitally signed by :- AMIT KATIYAR High Court of Judicature at Allahabad, Lucknow Bench

Jagdish Prasad Yadav and Ors. v. Choteylal and Anr.

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Jagdish Prasad Yadav and Ors. v. Choteylal and Anr.

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