SALEEM BHAI V. STATE OF MAHARASHTRA, AIR 2003 SC 759 (S.S.M. QUADRI, J.)

SALEEM BHAI V. STATE OF MAHARASHTRA, AIR 2003 SC 759 (S.S.M. QUADRI, J.)

 

FACTS

• Respondents instituted suits against the appellants, claiming to declare various judgments and decrees of courts leading upto the SC to be illegal, null and void.
• The appellant filed an application under Order VII Rule 11 (a) & (d) praying for dismissal of the suits.
• The respondent file an application under Order VIII Rule 10 to pronounce the judgment since the appellant had not filed the written statement.
• The appellant filed another application u/s 151 praying to decide the Order VII Rule 11 first.
• Both the application under Order VIII Rule 11 and u/s 151 were dismissed by the trial court and appellant was directed to file the written statement.
• Against it, Revision Petitions were filed by the appellant in the High Court, which upheld the order of the trial court and directed the appellant to file the written statement.
• The appellant assailed the same.

 

ISSUE

• Whether an application under Order VII Rule 11 C.P.C. should be decided on the allegations in the plaint and filing of the written statement by the constesting defendant is irrelevant and unnecessary.

 

Held:

The appeal was allowed and HC orders were set aside; the cases were remitted back to the trial court for deciding the application under Order 7 Rule 11.

• 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 under Order VII Rule 11 C.P.C. at any state 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 Order VII Rule 11 (a) and (d), the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at thatstage, therefore, a direction to file the written statement without deciding the application under Order VII Rule 11 C.P.C. cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.
• The order, therefore, suffers from non-exercising of the jurisdiction vested in the court as well as procedural irregularity. The High Court, however, did not advert to these aspects.

 

COMMENTARY

“An application for rejection of plaint can be decided by Court on basis of averments made in plaint. The filing of written statement by contesting defendant is not necessary. Therefore, direction to file written statement by trial Court without deciding application under O VII, rule 11 cannot but be procedural irregularity touching exercise of jurisdiction of trial Court.”