Rahul Kumar Tyagi, Adv., Punya Sheel Pandey, Adv., Sumit Daga, Adv.

JUDGMENT/ORDER

Manoj Kumar Gupta, J. - The instant petition is directed against the order dated 28.8.2019, in O.S. No. 865 of 1998, allowing the Objection 405ga-2, filed by the plaintiff-respondent and rejecting the application/objection 406ga-2 and 407ga-2, by the defendant-petitioners.

2. The petitioners, who are defendants in the suit, filed their written statement and on the basis of pleadings of the parties, one of the issues framed in the suit was whether the plaint was liable to be rejected under Order VII Rule 11 C.P.C. or not. An application 405ga-2 was filed by the plaintiff-respondent, praying that the proceedings of the suit be concluded expeditiously, without considering the application under Order VII Rule 11 C.P.C., moved by the defendant-petitioners. The application was opposed by the petitioners by filing their objection 407ga-2. The case of the petitioners is that the original plaintiff had no locus to challenge the sale deed in favour of the petitioner-defendant no. 2, as he had no interest in the suit property, nor any cause of action. In any case, the alleged interest of the plaintiff had also ceased upon execution of a sale deed, during pendency of the suit, in favour of Ayush Jain and Gaurav Agarwal.

3. The trial court observed that there is a direction by this Court to decide the suit expeditiously and that the prayer made five years after the execution of the alleged sale deed is highly belated. It, therefore, declined to consider the application under Order VII Rule 11 C.P.C. observing that the suit itself shall be decided on merits.

4. Learned counsel for the petitioners submitted that application under Order VII Rule 11 C.P.C. could be filed at any stage. In support of his submission, he has placed reliance on the judgment of Supreme Court in Sopan Sukhdeo Sable vs. Assistant Charity Commissioner, (2004) 3 SCC 137 [LQ/SC/2004/107] . He further submitted that the judgment of Supreme Court in Ram Prakash Gupta vs. Rajiv Kumar Gupta, (2007) 10 SCC 59 , [LQ/SC/2007/1198] on which reliance has been placed by the trial court in holding that the application was filed with delay, therefore, does not deserve to be considered, is not applicable to the facts of the instant case.

5. On the other hand, Sri Sumit Daga, learned counsel appearing on behalf of the plaintiff-respondent, submitted that the application moved is wholly frivolous. It is submitted that the plaint duly discloses the cause of action and that suit could not be dismissed on the ground that the suit property had been transferred during pendency of the suit.

6. The merit of the application is not subject matter of scrutiny in the instant matter. The only issue which requires consideration is whether the trial court is justified in declining to decide the application under Order VII Rule 11 C.P.C., on the ground that it was moved with considerable delay, or for the reason that the suit is an old one and is at the stage of recording of evidence.

7. In Sopan Sukhdeo Sable (supra), the Supreme Court held that the power under Order VII Rule 11 C.P.C. can be exercised at any stage of the suit. The relevant observations are as follows: -

"(10) In Saleem Bhai and Ors. v. State of Maharashtra and Ors., (2003) 1 SCC 557 [LQ/SC/2002/1340] it was held with reference to Order VII Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.

(17) Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order VII Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, the Order X of the Code is a tool in the hands of the Courts by resorting to which and by searching examination of the party in case the Court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order VII Rule 11 of the Code can be exercised."

8. In R.K. Roja Vs. U.S. Rayudu and another, (2016) 14 SCC 275 , [LQ/SC/2016/821] the Supreme Court placing reliance on Sopan Sukhdeo Sable (supra) held as follows:-

"Once an application is filed under Order VII Rule 11 of the CPC, the court has to dispose of the same before proceeding with the trial. There is no point or sense in proceeding with the trial of the case, in case the plaint (Election Petition in the present case) is only to be rejected at the threshold. Therefore, the defendant is entitled to file the application for rejection before filing his written statement. In case, the application is rejected, the defendant is entitled to file his written statement thereafter (See Saleem Bhai and others v. State of Maharashtra and others[2]). But once an application for rejection is filed, the court has to dispose of the same before proceeding with the trial court."

9. The following principles thus emerge from the above judgments of the Supreme Court:-

(i) An application for rejection of plaint under Order VII Rule 11 CPC could be filed at any stage of the proceedings.

(ii) Once an application is filed under Order VII Rule 11 CPC, the court has to dispose of the same before proceeding with the trial.

10. Indisputably, the trial court had framed a specific issue as to whether plaint is liable to be rejected under Order VII Rule 11 C.P.C. The said issue should have been decided by the trial court as a preliminary issue. However, that stage is already over, as the evidence of the parties is being recorded. Nonetheless, the mandate of law that once a prayer is made under Order VII Rule 11 C.P.C. for rejection of the plaint, it should be attended to forthwith, obligates the court to decide the said application before proceeding any further in the matter. The court below had acted with material irregularity in exercise of its jurisdiction in declining to decide the application observing that the suit itself will be decided finally on merits.

11. In Ram Prakash Gupta (supra), on which reliance has been placed by the trial court in holding that if the application under Order VII Rule 11 C.P.C. has been filed with delay, the court can decline to decide the application, as rightly pointed out by learned counsel for the petitioners, would not apply to the facts of the instant case. In the matter before the Supreme Court, the plaint was rejected on the issue of limitation. The rejection order was passed after the trial had commenced. There was a serious dispute between the parties regarding the date on which the plaintiff came to know of the decree passed in Suit No. 183 of 1974, which was being challenged by instituting the subsequent suit. In the said context, the Supreme Court observed as follows: -

"18) As observed earlier, before passing an order in an application filed for rejection of the plaint under Order VII Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials clearly show that the decree passed in Suit No. 183 of 1974 came to the knowledge of the plaintiff in the year 1986, when Suit No.424 of 1989 titled Assema Architect vs. Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he took steps at the earliest and filed the suit for declaration and in alternative for possession. It is not in dispute that as per Article 59 of the Limitation Act, 1963, a suit ought to have been filed within a period of three years from the date of the knowledge. The knowledge mentioned in the plaint cannot be termed as inadequate and incomplete as observed by the High Court. While deciding the application under Order VII Rule 11, few lines or passage should not be read in isolation and the pleadings have to be read as a whole to ascertain its true import. We are of the view that both the trial Court as well as the High Court failed to advert to the relevant averments as stated in the plaint.

19) It is also relevant to mention that after filing of the written statement, framing of the issues including on limitation, evidence was led, plaintiff was cross-examined, thereafter before conclusion of the trial, the application under Order VII Rule 11 was filed for rejection of the plaint. It is also pertinent to mention that there was not even a suggestion to the plaintiff/appellant to the effect that the suit filed by him is barred by limitation.

20) On going through the entire plaint averments, we are of the view that the trial Court has committed an error in rejecting the same at the belated stage that too without adverting to all the materials which are available in the plaint. The High Court has also committed the same error in affirming the order of the trial Court.

21) In the light of our above discussion, we set aside the order of the trial Court dated 20.2.2006 passed by the Civil Judge, Delhi in Suit No. 318/2003 and the judgment dated 27.4.2006 passed by the High Court of Delhi in R.F.A. No. 188 of 2006. In the result, the civil appeal is allowed and the Civil Judge is directed to restore the suit to its original file and dispose of the same on merits preferably within a period of six months from the date of receipt of the copy of this judgment. It is made clear that except on the question of limitation, we have not gone into the merits of the claim made by both parties. No costs."

12. The Supreme Court had thus examined the issue of limitation on the basis of plaint allegations and thereafter, did not agree with the view taken by the trial court and the High Court. The Supreme Court had not allowed the petition on the ground that the application was not worthy of consideration, as it was filed with delay. In Sopan Sukhdeo Sable (supra), it was specifically held that the power under Order VII Rule 11 C.P.C. could be exercised at any stage of the suit, i.e. before registering the plaint or after issuing summons to the defendants or at any time before the conclusion of the trial. Again in R.K. Roja (supra), it was specifically held that once an application under Order VII Rule 11 CPC is filed, the court is bound to decide the same before proceeding any further with the trial. In view of the same, this Court is of the considered opinion that the impugned order cannot be sustained and is accordingly set aside. The trial court is directed to decide the application under Order VII Rule 11 C.P.C. within a period of three weeks from the date of production of a certified copy of this order.

13. The petition stands allowed to the extent mentioned above.