Shailendra Singh vs Geeta Devi

Manoj K. Tiwari, J

Heard Mr. Himanshu Pal, Advocate for the petitioners.

Petitioners are defendants in Original Suit No. 56 of 2017 filed by respondent in the Court of Civil Judge (Junior Division), Roorkee, Haridwar. They are aggrieved by refusal on the part of the trial Court to reject the plaint filed by Smt. Geeta Devi (respondent herein). Petitioners are also challenging the order passed by First Additional District Judge, Haridwar in their Misc. Civil Appeal No. 33 of 2018.

I have gone through the trial Court's order dated 29.09.2018 and appellate Court's order dated 30.05.2019. Both the Courts below have given cogent reasons for refusing to reject the plaint of the suit filed by respondent. I concur with the reasoning given by learned Courts below.

Hon'ble Supreme Court in the case of I.T.C. Ltd. v. Debts Recovery Appellate Tribunal reported in (1998) 2 SCC 70 has held as under:-

"13. We may state that in the context of Order 7 Rule 11 CPC, a contention that once issues have been framed, the matter has necessarily to go to trial has been clearly rejected by this Court in Azhar Hussain v. Rajiv Gandhi as follows:

"In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial ... is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court...."

The abovesaid judgment which related to an election petition is clearly applicable to suits also and was followed in Samar Singh v. Kedar Nath. We therefore hold that the fact that issues have been framed in the suit cannot come in the way of consideration of this application filed by the appellant under Order 7 Rule 11 CPC."

It is settled position in law that Court cannot take into account material beyond the plaint to declare the case of the plaintiff as frivolous and vexatious. In the case of Pawan Kumar v. Babulal reported in (2019) 4 SCC 367 Hon'ble Supreme Court has summarized the legal position in para no. 13, which is reproduced below:-

"13. In the present case, the controversy has arisen in an application under Order 7 Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject-matter of assessment at the stage when application under Order 7 Rule 11 CPC was taken up for consideration. The matter required fuller and final consideration after the evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint the suit is barred by any law or not. We may quote the following observations of this Court in Popat and Kotecha Property v. SBI Staff Assn:

"10. Clause ( d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force."

In view of the aforesaid legal position, learned Courts below were justified in refusing to reject the plaint of the suit filed by respondent.

Thus, I have find no reason to interfere with the orders impugned in this petition. Consequently, the writ petition fails and is dismissed.

However, petitioners shall be at liberty to raise the plea of lack of jurisdiction. If such plea is raised, learned trial Court shall deal with it in accordance with law at an appropriate stage.