Haneef vs Sandeep Kumar Agrawal And Another

Sharad Kumar Sharma, J

The petitioner is a plaintiff in a Suit for injunction, which has been instituted by him against the defendant/respondent seeking a decree of injunction in the nature of restrain against them not to dig mud from his plot. In the Suit the defendant had filed a counter claim under Order 8 Rule 6(a) along with the written statement. The petitioner has filed an application on 16.02.2018, invoking sub-clause (e) of Rule 11 of Order 7, praying for that the Suit may be dismissed due to non-compliance of sub-clause (e) of Rule 11 of Order 7. sub-clause (a) and (e) of Rule 11 of Order VII is quoted 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) .....

(c) .....

(d) .....

(e) where it is not filed in duplicate."

The said application has been rejected by the impugned order dated 27.08.2018 being Original Suit No. 60 of 2015 passed by Civil Judge (S.D.), Roorkee, District Haridwar . It is this order, which has been put to challenge before this Court.

There is no doubt about the fact that the provisions under Order 7 Rule 11 sub-clause (e), does contemplate a consideration of one of the situation where a claim in Suit when it is filed, if it is not filed in a duplicate copy then it has to be rejected by invoking sub-clause (e) of Rule 11 of Order 7, but then the application, which has been submitted by the plaintiff/petitioner on 16.02.2018 for invoking the said provision, has had to disclose a sufficient reason as to how non-compliance of the provisions is going to have an effect on merits of the counter claim, rather if the application is considered its rather an objection based on the ground of lack of course of action and not under Order VII Rule 11 (e), as argued by the petitioner. If the application of the petitioner dated 16.02.2018 is taken into consideration, it does not satisfy any ingredients and lack any pleading on merits to attract the aforesaid provisions so as to dismiss the counter claim of the defendant/respondent.

The Court that is why held that even according to the claim raised in the counter claim as well as in the plaint the rights inter se between the parties with regards to the digging of the mud from the plot of the plaintiff was as a consequence of terms settled by an agreement, which was entered into between the parties on 16.07.2010 and the covenants of the said agreement was to continue to operate till 31.09.2019, meaning thereby, the inter se binding relationship arising from the said agreement was still continued and thus, as a matter of fact, there was a cause of action, which continued as on the date of filing of the plaint as well as the counter claim. Its not the nature or gravity of counter claim has any significant role to play while considering impact of Order VII Rule 11 (a) of C.P.C., which was existing at the time when the Suit or the counter claim was filed.

According to the petitioner in support of his contention he submits that the counter claim filed by the respondent should have been dismissed, because it was not filed in duplicate, this is not the ground pleaded in the application, rather this argument pertaining to Order VII Rule 11 (e) was beyond the ambit of pleading. Hence, could not be considered. He has placed reliance on the judgment of the Coordinate Bench of Punjab and Haryana High Court in the case of K.G. Khosla Karamchari Union vs. Kirloskar Pneumatics Ltd.

Paragraph-19 of the said judgment is quoted hereinbelow:

"19. If an application under Order 7 Rule 11 of the C.P.C. is filed, then it becomes the duty of the Court to examine the plaint to see whether it discloses any cause of action and also to see whether it discloses any cause of action and also to see whether it is barred by the provisions of any law. This is imperative for the court and if the plaint suffers from any of the infirmities which have been enumerated in Order 7 Rule 11 of the C.P.C., then the Civil Court should not be hesitate to reject the plaint, provided there are sufficient reasons to do so which are to be recorded by the Court while exercising its power under that provision of law."

In the said case the Coordinate Bench of Punjab and Haryana High Court was seized with the case where there was a non-disclosure of cause of action and cause of action did not persist and that is why the Court recorded a finding that the Order 7 Rule 11 sub-clause (e) will come into play because no Suit could be permitted to continue in the absence of there being a cause of action. The learned counsel for the petitioner has extracted the line "it is barred by the provisions of any law" to substantiate his case.

Extracting the aforesaid line he submits that in view of the observations, which has been made in paragraph-11 of the said judgment, which was quoted under Order 7 Rule 11, it would amount to be a bar, which is created by law when the counter claim is not filed in duplicate.

This Court after going through the documents on record and hearing counsel at length and on perusal of judgment is of the view that the said case was not decided on a premise of non-compliance of sub-clause (e) of Rule 11 of Order 7, rather it was on the premise of non-existence of the reasoning of sub-clause (a) of Rule 11 of Order 7. Hence, extracting the said line, i.e. "it is barred by provisions of any law" for the purposes of attracting sub-clause (e) of Rule 11 of Order 7, is not available in the light of the said judgment on which the reliance has been placed by the learned counsel for the petitioner. However, if at all the provisions of sub-clause (e) of Rule 11 of Order 7, is to be attracted the said ground could be agitated by the petitioner in view of the provisions contained under Section 105 of C.P.C. because this reasoning in itself may not call for invocation of provisions contained under Article 227 of Constitution of India as non calling of a counter claim in duplicate will have no bearing on the merit, which has to be adjudicated on merits. This Writ Petition lacks merit and is dismissed.

There will be no order as to cost.