Allowed

Surjan Singh v. Manchand

Rajasthan HC26 Nov 2018CFA/457/2018

Case brief

AI extract

What is this about?

The High Court allowed the civil first appeal, setting aside the trial court's order rejecting the plaint. It held that Order 7 Rule 11 CPC allows dismissal only if the plaint on its face discloses no cause of action or is barred by law, and the court cannot rely on the application for rejection or written statement made by defendants.

What did the court decide?

Impugned order setting aside of rejection of plaint; matter remanded to trial court to call for written statement and decide bar of suit as preliminary issue.

Surjan Singh Vs Manchand — Specific Performance | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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S.B. Civil First Appeal No. 457/2018

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Surjan Singh S/o Shri Gurditt Singh, Aged About 69 Years, B/c Raisikh, R/o Chak 1 NWM, Tehsil Anupgarh, District Sri Ganganagar.

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----Appellant

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Versus

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Manchand S/o Shri Preetu, At Present Resident Of D-1/3 Vyas Hospital Station, Dera Vyas, Tehsil Baba Bakala, District Amratsar (Punjab)

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Kashmir Singh S/o Shri Preetu, At Present Resident Of D- 1/3 Vyas Hospital Station, Dera Vyas, Tehsil Baba Bakala, District Amratsar (Punjab)

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Kartar Singh S/o Shri Preetu, Bajera, Mauja, Jarot, Tehsil - Dehra, District Kangra (Himachal Pradesh)

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Smt. Meena Devi D/o Shri Preetu, Bajera, Mauja, Jarot, Tehsil - Dehra, District Kangra (Himachal Pradesh)

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Smt. Daya Devi D/o Shri Preetu, Bajera, Mauja, Jarot, Tehsil - Dehra, District Kangra (Himachal Pradesh)

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Smt. Bebi D/o Shri Preetu, Bajera, Mauja, Jarot, Tehsil - Dehra, District Kangra (Himachal Pradesh)

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Smt. Tulsi Devi W/o Late Shri Preetu, Bajera, Mauja, Jarot, Tehsil - Dehra, District Kangra (Himachal Pradesh)

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Kashmiri Lal S/o Shri Khushal Chand, B/c Arora, R/o Patroda, Tehsil Anupgarh, District Sri Ganganagar.

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The Tehsildar (Revenue), Anupgarh, District Sri Ganganagar (Raj.)

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The Sub Registrar, Anupgarh District Sri Ganganagar (Raj.)

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----Respondents

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For Appellant(s) : Mr. S.L. Jain For Respondent(s) : Mr. Trilok Joshi

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(2 of 4)

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[CFA-457/2018]

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HON'BLE MR. JUSTICE P.K. LOHRA

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Order

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26/11/2018

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Appellant-plaintiff has preferred this first appeal to challenge order dated 24.08.2018, passed Additional District Judge, Anupgarh, District Sriganganagar (for short, ‘learned trial Court’), whereby learned trial Court, while accepting application of respondent-defendants under Order 7 Rule 11 CPC, rejected the plaint.

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The facts, in brief, giving rise to this first appeal are that appellant-plaintiff filed a suit for specific performance of contract against respondents, inter-alia, on the ground that on their behalf an agreement to sale was executed on 11.06.1991 pertaining to suit land but despite his readiness and willingness, they failed to perform their part of the contract. Resisting the suit on behalf of respondent-defendants, an application under Order 7 Rule 11 CPC was filed precisely on the ground that the suit is barred by law by virtue of Section 42B of the Rajasthan Tenancy Act, 1955. As per version of the respondent-defendants, they belong to Scheduled Caste being Chamar, and therefore, sale of agricultural land in favour of a person of upper caste, to which appellant belongs, is forbidden in law. The learned trial Court, after hearing arguments of rival parties, while relying on the averments made in application under Order 7 Rule 11 CPC and the documents produced, found the suit barred by law and consequently rejected the plaint.

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I have heard learned counsel for the appellant, learned counsel for the respondents, perused the impugned order and also scanned the entire record of the case.

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(3 of 4)

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[CFA-457/2018]

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There remains no quarrel that Order 7 Rule 11 CPC envisages provision for rejection of plaint under certain contingencies, more particularly, when from the averments made in the plaint it is clearly apparent that it does not disclose cause of action, or where the suit appears from the statements in the plaint to be barred by any law. As in the instant case, the precise objection raised on behalf of respondent-defendants fell within the ambit of Clause (d) of Rule 11 of Order 7 CPC, it was expected of learned trial Court to examine the statements in the plaint. However, the learned trial Court, while granting indulgence to the respondent-defendants, has placed heavy reliance on the averments made in the application under Order 7 Rule 11 CPC and has further relied upon the document produced on their behalf.

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Supreme Court in case of P.V. Guru Raj Reddy & Anr. Vs. P. Neeradha Reddy & Ors. [(2015) 8 SCC 331], while considering power under Order 7 Rule 11 CPC, has found that such power is drastic one, and therefore, has to be exercised solely by relying on the statements of facts in the plaint and Court is not expected to take into account the averments made in the application under Order 7 Rule 11 CPC, or the written statement filed on behalf of defendants. The Court has made following observations:

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“5. Rejection of the plaint under Order 7 Rule 11 of CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7 Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order 7 Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit

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(4 of 4)

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[CFA-457/2018]

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appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial.”

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In this view of the matter, learned trial Court has committed grave and serious error of law and fact in accepting the application under Order 7 Rule 11 CPC and consequently rejecting the plaint. The course adopted by the learned trial Court is per se contrary to the mandate of Clause (d) of Rule 11 of Order 7 CPC.

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Reaultantly, the impugned order passed by learned trial Court is set aside and the matter is remanded back with a direction to the learned trial Court to call upon the defendants to file written statement, and thereafter, to frame issues including issue relating to bar of the suit filed by appellant-plaintiff. The trial Court is further expected to decide the issue relating to bar of the suit as preliminary issue.

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The appeal is, accordingly, allowed subject to the observations made supra.

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18-T.Singh/-

Surjan Singh v. Manchand

Case brief

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Surjan Singh v. Manchand

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