Anand Kumar Mishra vs Vikram Pandey @ Vikram Mishra and 9 Others

Sanjay Misra, J.—Heard Sri. D.S.P. Singh learned counsel for the petitioner who claims to be defendant in Suit no. 1122 of 2012 (Vikram Pandey Vs Anand Kumar Mishra) pending in the court of Additional Civil Judge (Senior Division), Varanasi and Sri. Shailendra for the respondent plaintiff. According to Sri. D.S.P. Singh learned counsel for the petitioner the suit filed by the plaintiff respondent was for declaration and permanent injunction with respect to the property in question. He submits that the defendant petitioner was noticed and he has filed an application under Order VII Rule 11(b) CPC objecting to very jurisdiction of the court including on the question of valuation of the suit. Learned counsel states that such application requires to be heard first as a preliminary issue since it goes to the root of jurisdiction of the court below and any application made by the plaintiff respondent for grant of temporary injunction may be considered thereafter. According to him by the impugned order dated 09.10.2013 the court below has directed the defendant petitioner to make his submission on the temporary injunction application whereupon the defendant petitioner was compelled to file an application for grant of time to approach the High Court against such impugned order dated 09.10.2013. He states that the Trial Court has granted time and hence this writ petition.

From the submission of learned counsel for the defendant petitioner and from the averments made in this writ petition it appears that the plaintiff respondent had filed the suit and along with the suit he filed an application under Order XXXIX Rule 1 and 2 CPC. Thereafter the plaintiff-respondent appears to have approached the High Court under Article 227 of the Constitution of India being No. 1428 of 2013 (Vikram Pandey Vs Additional Civil Judge (Senior Division) and 10 others) wherein by the order dated 17.05.2013 this court directed the court below to decide the interim injunction application of the plaintiff after considering the objection of the defendants in accordance with law without granting unnecessary adjournment to either of the parties and in case there is no other legal impediment in the same.

According to Sri. D.S.P. Singh the court below could not consider the interim injunction application of the plaintiff respondent for the reason that an application by the defendant petitioner under Order VII Rule 11(b) CPC has been filed and requires to be considered before the application under Order XXXIX Rule 1 and 2 CPC.

Sri. Shailendra learned counsel appearing on behalf of the plaintiff respondent has submitted that the scope of an application under Order VII Rule 11 CPC is with respect to the jurisdiction of the court and the cause of action. He does not dispute that such an application ought to be considered a preliminary issue in the proceedings but his submission is that the provisions under Order XXXIX Rule 1 and 2 CPC are for the purpose of an interim protection to the plaintiff against the defendant and therefore there cannot be any bar for the court to exercise its jurisdiction under Order XXXIX Rule 1 and 2 CPC even during pendency of an application under Order VII Rule 11(b) CPC. The sum and substance of the submission of learned counsel for the plaintiff respondent is that filing of an application under Order VII Rule 11(b) CPC would not take away the jurisdiction of the Trial Court to consider an application for interim protection under Order XXXIX Rule 1 and 2 CPC.

Having considered the submission of learned counsel for the parties and perused the record it appears that the plaintiff respondent has obtained an order from this court on 17.05.2013 in Petition no. 1428 of 2013 for disposal of his temporary injunction application. The Trial Court cannot disobey an order passed by the High Court under Article 227 of the Constitution of India for the purpose of disposal of the application as directed in that order. As such to say that the temporary injunction application ought not to be considered till the application under Order VII Rule 11(b) CPC is decided would be incorrect.

Secondly the scope of an application under Order VII Rule 11 CPC relates to the rejection of the plaint for the reasons of Clause (b) to (f) and also Clause (a) when it does not disclose a cause of action. Such an application has to be considered only on a plain reading of the plaint and written statement is not necessary to be invited. As such when the plaintiff files a suit he cannot be debarred from filing an application under Order XXXIX Rule 1 and 2 CPC for interim protection since at the time when the suit is filed the defendant has not appeared but appears after he has received notice of the suit. Therefore an application under Order XXXIX Rule 1 and 2 CPC cannot be barred only for the reason that the defendant has appeared and has filed an application under Order VII Rule 11 CPC. As such the impugned order dated 09.10.2013 whereby the Trial Court has fixed a date for consideration of the temporary injunction application cannot be said to be illegal only for the reason that the application under Order VII Rule 11 CPC ought to have been first decided.

The scope of an application under Order XXXIX Rule 1 and 2 CPC is in the nature of an interim protection. The three ingredients of prima-facie case, balance of convenience and irreparable loss are to be considered. This consideration by the court is not by framing of issues.

Therefore the two applications cannot imply that the other is barred or should not be considered first. The impugned order has clearly recorded that if the application for temporary injunction is not considered at this stage when the defendant has already put in appearance and has filed objection the very purpose for such application is liable to be frustrated.

In the present case the application under Order VII Rule 11 CPC has been filed as annexure 2 to the writ petition. It relates to the valuation of the suit and court fees paid. Clearly it falls under Clause (b) of Rule 11 of Order VII CPC. The defect under Clause (b) can be removed and only on failure to remove the defect can the plaint be rejected. Such is not the circumstance in this case. Here the defendant has filed the application objecting to the valuation of the suit and such objection is to be decided where the court can ask the plaintiff to remove the defect under the proviso to Order VII Rule 11 CPC.

From the aforesaid recitation it appears that the Trial Court has applied its mind to the urgency and has considered fit to consider the interim injunction application after hearing both the parties however, the defendant petitioner had sought time and got the matter adjourned for the purpose of filing this petition.

In view of the aforesaid reasons and in view of the circumstances of the case no error can be found in the impugned order dated 09.10.2013 whereby the Trial Court was of the opinion that the temporary injunction application if not considered would frustrate the very purpose of such an application. Hence to say that once an application under Order VII Rule 11(b) CPC has been filed by the defendant regarding valuation of the suit and court fees paid the court cannot consider an application under Order XXXIX Rule 1 and 2 CPC would be incorrect and could result in irreparable loss to a plaintiff who is claiming that the defendant wants to dispossess him.

Apart from the above the record indicates that the Trial Court had earlier fixed the application under Order VII Rule 11 CPC for hearing. But on 31.08.2013 an application no. 101-C was filed and upon considering the same the Trial Court noticed the direction issued by the High Court to decide the temporary injunction application 6-C hence it has passed the impugned order which cannot be faulted.

Under such circumstances no interference is required in the impugned order. The writ petition has no merit. It is accordingly dismissed.

No order is passed as to costs. As prayed by learned counsel for the petitioner let a certified copy of this order be provided within 24 hours.