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Judgment
The appellant/plaintiff has preferred this first appeal under Section 96 of the Code of Civil Procedure (hereinafter, referred as “CPC”) calling in question the legality, validity and correctness of impugned judgment and decree dated 24/06/2008 passed by the 3rd Additional District Judge, Bilaspur in Civil Suit No. 24-B/07 whereby the plaint filed by the appellant/plaintiff has been rejected invoking Order 7 Rule 11 of CPC on the ground that the suit, as framed and filed by the appellant/plaintiff, is barred by Section 20 of Chhattisgarh Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter, referred as “the Act of 1983”).
(For the sake of convenience, the parties shall hereinafter be referred to as per their status and ranking given in the plaint before the trial Court.)
The aforesaid challenge to the impugned judgment and decree has been made on the following factual backdrop :-
Plaintiff instituted a suit for recovery of Rs. 1,14,555.59/-against the defendant i.e. the erstwhile Madhya Pradesh Electricity Board on 30/10/1986. Thereafter, defendant entered into appearance on 16/11/1992 and filed its written statement and then on 19/09/1996, trial Court framed as many as 10 issues. On 20/10/1997, evidence of two of the plaintiffs’ witnesses namely Iqbal Singh (PW-1) and Jaspal Singh (PW-2) were recorded. Subsequently, on 06/11/1997, defendant proceeded ex-parte. Thereafter, the trial Court, vide its judgment and decree dated 10/12/1997 ultimately, dismissed the suit, without recording findings on the individual issues, as defendant had already proceeded ex-parte, principally on the ground of non-compliance of Order 10 and Order 11 of the CPC.
Feeling aggrieved and dissatisfied by the judgment and decree dated 10/12/1997 passed by the trial Court, plaintiff preferred a first appeal before the High Court of Madhya Pradesh which was transferred to the High Court of Chhattisgarh and registered as FA/144/1998 wherein this Court, vide judgment dated 16/07/2007, allowed the first appeal, set aside the impugned judgment and decree passed by the trial Court, and remanded the matter for fresh adjudication in accordance with law, particularly keeping in view the mandatory provisions contained in Order 14 Rule 2 of the CPC.
Upon remand of the matter, the trial Court adjudicated upon issues No. 5(a) and (b) relating to jurisdiction of Civil Court to entertain the suit, along with I.A. No. 1, application filed by the defendant seeking rejection of the plaint under Order 7 Rule 11 of CPC and vide impugned judgment and decree dated 24/06/2008, rejected the plaint of the plaintiff invoking Order 7 Rule 11 of CPC holding that the work undertaken by the plaintiff fell within the definition of “Works Contract” as specified under Section 2(1) of the Act of 1983 and therefore, the Civil Court does not have the power and jurisdiction to hear the suit as per Section 20 of the Act of 1983, proceeded to dismiss the suit holding it to be non-maintainable, which has been challenged by the plaintiff in the present appeal.
It is pertinent to mention here that I.A. No. 1, application filed by the defendant for rejecting the plaint under Order 7 Rule 11 of CPC, was taken up for consideration by the trial Court at an earlier stage of the proceedings and upon consideration, the trial Court rejected the said application vide order dated 14/10/1992 holding that since written statement has not yet been filed by the defendant, therefore, the ground of arbitration can be taken by the defendant in their written statement, and the same can be decided by framing a preliminary issue. However, this order was challenged by the defendant in a revision registered as Civil Revision No. 12 of 1993 whereby the Madhya Prdadesh High Court vide order dated 08/09/1994 allowed the revision and set aside the order dated 14/10/1992 passed by the trial Court.
Mr. Prafull Bharat, learned Senior Advocate appearing on behalf of the appellant/plaintiff, submits that once written statement had been filed by the defendant, issues had been framed and evidence of the plaintiff had been recorded, the suit could not have been dismissed by the trial Court invoking Order 7 Rule 11 of CPC rather the matter ought to have been decided on merits, particularly when, the application filed by the defendant under Order 7 Rule 11 of CPC had already been dismissed by the trial Court on 14/10/1992 at the earlier stage of the proceedings,. Therefore, upon remand of the matter, the trial Court has gravely erred in taking I.A. No. 1 for consideration again and ultimately, dismissing the suit invoking Order 7 Rule 11 of CPC vide impugned judgment and decree dated 24/06/2008 holding that the Civil Court does not have the power and jurisdiction to hear the suit as per Section 20 of the Act of 1983. As such, the impugned judgment and decree, being unsustainable and bad in law, is liable to be set aside.
Mr. Varun Sharma, learned counsel for the respondent/defendant, submits that since the trial Court was deciding the suit ex-parte, therefore, all the issues were not required to be decided. As per Order 14 Rule 2(2)(a) of the CPC, if the question relates to jurisdiction of the Court, the issue has to be decided as a preliminary issue, as such, the trial Court is absolutely justified in taking up issues No. 5A and 5B and deciding them as preliminary issues. Thus, the instant appeal, being devoid of merits, is liable to be dismissed.
I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the record with utmost circumspection.
Admittedly, plaintiff filed the suit on 30/10/1986 in which defendant entered into appearance on 16/11/1992 and filed its written statement. Thereafter, issues were framed and plaintiff’s witnesses were examined, however, defendant was declared ex-parte and vide judgment and decree dated 10/12/1997, suit was dismissed by the trial Court on the ground of non-compliance of Order 10 and Order 11 of the CPC. Thereafter, plaintiff preferred a first appeal which was remanded back to the trial Court with a direction to proceed in accordance with the mandatory provision contained under Order 14 Rule 2 of CPC. In the second round, the trial Court took up I.A. No. 1, application filed by the defendant seeking rejection of plaint under Order 7 Rule 11 of CPC, and dismissed the suit vide impugned judgment and decree dated 24/06/2008 without dealing with the issues so framed, holding that the Civil Court does not have the power and jurisdiction to hear the suit as per Section 20 of the Act of 1983.
Thus, the point for determination involved in this appeal is, “whether the trial Court is justified in invoking Order 7 Rule 11 of the CPC and rejecting the plaint at the stage of final argument as written statement had been filed, issues had been framed and plaintiff’s evidence had been recorded ?”
In the decision rendered by the Supreme Court in the matter of M/s Bhagya Estate Ventures Pvt. Ltd. v. Narne Estates Pvt. Ltd. & Anr.1, their Lordships of the Supreme Court have dealt with a similar set of facts as the present case, in which, the question that arose for consideration before their Lordships has been stated in paragraph 7 of the report as under :-
“7.The only issue which arises for consideration before this Court is the stage at which an application seeking rejection of plaint can be filed and entertained. The provision in itself does not specify any stage or limitation regarding the filing of the application, but the law has been laid down by this Court in Saleem Bhai and Ors. v. State of Maharashtra & Ors.,2 that an application under Order VII Rule 11, CPC can be filed at any stage before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial. This has been reiterated by this Court in several cases over the course of time.”
Their Lordships answered the aforesaid issue in paragraphs 10,12,13,14,15,16 and 17 of the report as under :-
“10.Thus, the principle underlying the provisions for rejection of plaint/petition is that the courts must attempt to recognise and reject a plaint at the outset which is defective for any of the reasons enumerated in Order VII Rule 11 CPC or any similar provision. The aim while undertaking such an exercise remains to put a nip in the bud to litigation that is otherwise lacking the essential ingredients of a proper plaint.
12.The above position holds good as we are not of the opinion that issuance of summons shall foreclose the right of the defendant to seek rejection of plaint; but the focal issue for consideration is that till when and for how long can this right of the defendant survive?
13.It is amply clear that the purpose behind such a provision is to ensure that the plaints or petitions which are defective, for any of the reasons enumerated, shall not be allowed to proceed further and shall be put to an end before they progress to an advanced stage. When such is the purpose, we fail to understand as to how an application for rejection of a plaint can be entertained at a stage where written submission has already been filed, evidence has been led and the trial has substantially reached the stage of final arguments, as in the present case. This would rather go completely against the objective of the provision and would effectively not serve the purpose which it intended to.
14.Moreover, when the proceedings have reached such an advanced stage of trial and the Court has gone through the merits of the case, it is fair to presume that the Court has already applied its mind to the substantive submissions and cannot make a prima facie conclusion about a plaint being improper at the outset or not. Also, it is a settled position of law that when the court is considering an application under Order VII Rule 11, it must only peruse and consider the averments in the plaint to check whether the plaint is def opinion regarding the merits of the case would crop up in the mind of the court. In such a scenario, looking at the plaint in isolation and deciding the rejection application based solely on prima facie reading of the plaint would not be possible. At this point, the trial has rather fructified to a stage where the dismissal of a suit on merits is a more appropriate course of action instead of rejecting a plaint at the outset which should have been done at a preliminary stage.
15.It is already a clarified position of law that without disposing of an application under Order VII Rule 11, CPC, the court cannot proceed with the trial. When this is the position of law and the purpose of the provision is also settled, then, we see no reason for the right of the defendant to raise such a plea at a far belated stage such as final arguments or nearing conclusion of the trial. Allowing such pleas to be raised after the trial has proceeded so far would not only defeat the intent of the provision but would also go against the principle of equity and would lead to wastage of the court resources. Additionally, allowing such rights to survive till eternity only act as a catalyst for the defendant to misuse the provision to prolong or delay the trial and abuse the process of law.
16.Having considered the facts and circumstances of the present case, and in particular, having noticed the conduct of the defendant-respondents as recorded by the Trial Court and also the fact that full trial had already been concluded as both the parties had already closed their evidence and the matter was ripe for final arguments, consideration of the application under Order VII Rule 11 was rightly declined by the Trial Court. The High Court erred in allowing the same and rejecting the plaint.
Accordingly, we allow the appeal, set aside the impugned order and further direct that the trial shall proceed from the stage where it was before the rejection of the plaint. Since the suit is pending for almost 16 years, the Trial Court is directed to decide the same within a period of three months from the date of a certified copy of the order is filed before the Trial Court, and it goes without saying that both the parties shall extend full cooperation in disposal of the suit.”ective for any of the reasons provided under the rule or is a proper plaint. Since the plaint is the only material to be considered while deciding an application seeking rejection of plaint, then in a case where plaint has been registered, written submission has been filed, evidence has been recorded, and the parties are ready for final arguments, it is only natural that some form of bias or opinion regarding the merits of the case would crop up in the mind of the court. In such a scenario, looking at the plaint in isolation and deciding the rejection application based solely on prima facie reading of the plaint would not be possible. At this point, the trial has rather fructified to a stage where the dismissal of a suit on merits is a more appropriate course of action instead of rejecting a plaint at the outset which should have been done at a preliminary stage.”
As such, their Lordships of the Supreme Court have clearly held in Bhagya Estate Ventures (supra) that once the written statement has been filed, evidence has been led and the trial has substantially reached the stage of final arguments, the application for rejection of cannot be entertained invoking Order 7 Rule 11 of CPC as this would go completely against the objective of the provision and would not effectively serve the purpose which it intended to.
In the instant case also, as noticed hereinabove, the suit had already proceeded substantially. The defendant had filed its written statement, issues had been framed by the trial Court, and the entire evidence of the plaintiff had already been recorded. Thereafter, the defendant remained ex parte, and the suit had thus reached the stage of final hearing. In such circumstances, even though the matter had been remanded by this Court, the trial Court was required to adjudicate the controversy finally on merits in accordance with the procedure prescribed under the CPC. The trial Court, at such an advanced stage of the proceedings, could not have entertained the application under Order 7 Rule 11 of the CPC filed by the defendant seeking rejection of the plaint and, on that basis, proceeded to dismiss the suit. The trial Court has, therefore, committed a grave error of law and procedure in entertaining the application under Order 7 Rule 11 of the CPC at the stage of final hearing and thereafter rejecting the plaint, instead of deciding the suit on merits in accordance with law.
In view of the aforesaid legal discussion and analysis, I am of the considered opinion that the impugned judgment and decree dated 24/06/2008 cannot be sustained in law and it is hereby set aside and matter is remanded to the trial Court to hear the parties and to decide the matter on merits, by dealing with all the issues so framed and by passing a detailed and reasoned judgment. Since the suit was filed on 30/10/1986 i.e. 39 years ago, parties will appear before the trial Court on 01/09/2026 and the trial Court will do well to hear the parties and decide the matter preferably within 30 days after hearing the parties, absolutely in accordance with law.
Accordingly, this first appeal is allowed to the extent indicated herein-above. Decree be drawn-up. No order as to cost(s).