Case BriefsSupreme Court

   

Supreme Court: The Division Bench of M.R. Shah* and B.V. Nagarathna, JJ., explained the legal propositions governing Order 6 Rule 17 and Order 1 Rule 10 of the Civil Procedure Code for amendment of the plaint.

Reversing the impugned order of the Delhi High Court, the Court stated that the High Court while allowing the amendment application had not properly appreciated the fact that by granting such an amendment and permitting plaintiffs to amend the plaints incorporating the prayer clause to declare the respective charges/mortgages void ab-initio, the nature of the suits will be changed.

Chronology of Events

The Asian Hotels (North) Ltd. (appellant herein) had granted licenses for individual shops to various shopkeepers including the respondent-original plaintiff from 1983 onwards. The genesis of the appeal relates to the revocation of license notice served on the licensees by the appellant** licensor. Aggrieved thereby, the respondent instituted suits before the Delhi High Court against the appellant seeking a decree of declaration that the license in favour of the respondent in respect of shop/premises is irrevocable and perpetual and the purported revocation of the License is illegal, void and bad in the eyes of law.

A decree was also sought for a declaration that the respondent has the unfettered right to occupy and use the said premises/shop under the irrevocable license till the documents of transfer/conveyance are executed by the appellant.

During the pendency of the suit, the respondent approached the Court with an application under Order 6 Rule 17 of the Civil Procedure Code (the Code), seeking an amendment of the plaint to challenge various mortgages created by the appellant hotel, in favour of certain banks. The respondent contended that the mortgages in favour of the Financial Institutions/Banks are illegal and void ab-initio to the extent it encumbers any right, title, and interest of the respondent in the subject premises. Similarly, another application under Order 1 Rule 10 of the Code was also filed by the respondent under Order 1 Rule 10 of the CPC seeking to implead the Banks and the Financial Institutions as defendants nos. 2 to 7.

By the impugned order in Alok Kumar Lodha v. Asian Hotels (North) Ltd., 2021 SCC OnLine Del 4370, the High Court allowed both the applications filed under Order 6 Rule 17 and Order 1 Rule 10 of the Code by relying on Kasturi v. Iyyamperumal, (2005) 6 SCC 733.

Observations and Findings

The Court observed the following to hold that the respondent/original plaintiffs being the licensee were aware that there shall be charges/mortgages on the entire premises and the buildings including the shops:

  • The mortgages have been created in favour of different mortgage banks/financial institutions from 1982 onwards which have been extended and/or rolled over, refinanced, and replaced from time to time. At that time, none of the original plaintiffs (including the respondent) were license holders.

  • The mortgages are created not only with respect to the shops/premises occupied by the original plaintiffs but with respect to the entire premise/Hyatt Residency Hotel. The respective original plaintiffs are granted licenses for individual shops which are part of the entire premises.

  • Even under the License Agreement (clause 13) the Licensor shall have the right to create charges/mortgages as and by way of the first charge on its land, premises, and the buildings (including shops) constructed and to be constructed in favour of financial institutions and banks as security for their terms loan advanced/to be advanced to the licensor for the completion of its hotel project.

  • The alleged rights of the plaintiffs as perpetual license holders are yet to be adjudicated upon. The licenses of the original plaintiffs have been revoked. Therefore, in a suit challenging revocation of the respective licenses, the plaintiffs cannot be permitted to challenge the respective mortgages/charges created on the entire premises as void ab-initio.

Hence, the Court held that now after a number of years, plaintiffs could not be permitted to challenge the mortgages/charges created on the entire premises including shops. The Court noted that the High Court while allowing the amendment application had not properly appreciated the fact that by granting such an amendment and permitting plaintiffs to amend the plaints incorporating the prayer clause to declare the respective charges/mortgages void ab-initio, the nature of the suits will be changed.

Emphasising on the settled proposition of law, the Court stated if, by permitting plaintiffs to amend the plaint including a prayer clause nature of the suit is likely to be changed, in that case, the Court would not be justified in allowing the amendment. It would also result in a misjoinder of causes of action.

Doctrine of Dominus Litus

On noting that the High Court had placed heavy reliance on the doctrine of dominus litus to allow the application, the Court clarified that the principle that the plaintiffs is the dominus litus shall be applicable only in a case where parties sought to be added as defendants are necessary and/or proper parties. The plaintiffs cannot be permitted to join any party as a defendant who may not be necessary and/or proper parties at all on the ground that they are the dominus litus.

Conclusion

Considering the above, the Court allowed the instant appeal. The impugned order was quashed for being unsustainable, both on facts as well as on law.

[Asian Hotels (North) Ltd. v. Alok Kumar Lodha, (2022) 8 SCC 145, decided on 12-07-2022]

*Judgment by: Justice M R Shah

**Judgment appears to have mistakenly stated the original plaintiff as licensor instead of the appellant (refer to para 3.1).


Advocates who appeared in this case:

Mukul Rohatgi, Senior Advocate, for the Appellant;

Avishkar Singhvi and Rahul Gupta, Advocates, for the Respondents.


∗Kamini Sharma, Editorial Assistant has put this report together.

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: While deciding the instant appeal wherein substantial questions of law were raised vis-a-vis SectionS 80, CPC; the Single Judge Bench of Vinod Chatterji Koul, J., held that the language of Section 80 is very clear in stating that at the time of filing a suit, if the plaintiff can establish that there is an urgency to seek relief, then the Court on its satisfaction, may dispense off with the requirement of notice before filing a suit under Section 80.

Facts and Legal Trajectory of the case: The Chief Medical Officer, Pulwama, issued advertisement on 06-02-2012 inviting applications from eligible candidates of District Pulwama, for the posts of Female Multipurpose Health Worker (hereinafter FMPHW) for Sub Centre Amlar. The advertisement was issued under the National Rural Health Mission (NRHM). The prescribed qualification was Diploma in FMPHW and that the candidate should be resident of the locality where the Health Institution is located so as to ensure continuous presence for 24 x 7 days’ service.

In pursuance of the afore-stated advertisement, the appellant and the respondent applied for the post. The appellant was appointed on 19-05-2012 as FMPHW at Sub-Centre Amlar, Block Tral, and joined her duties on 21.05.2012. The respondent, however filed a suit seeking to declare the appellant’s appointment null and void as the officials acted in derogation to the rules and guidelines as stated in the advertisement and were under a mistaken assumption in considering Nowpora as a village. The Trial Court held that the appointment of the appellant was illegal.

Aggrieved by the decision, the appellant approached the Principal District Judge, Pulwama, who dismissed the appeal. The appellant then approached the High Court claiming that there are substantial questions of law that require the High Court’s consideration.

The Substantial Questions of Law in this case: The Court while considering the instant appeal, framed the following questions of law-

  1. Whether a suit instituted against the Government and its functionaries, in which emergency is invoked, can be maintained and continued, when no interim relief is granted in the case?
  2. Whether in terms of Section 80 (3), CPC was it mandatory for the Trial Court to return the plaint to the plaintiff, as no interim relief was granted in the case with regard to the appointment of the appellant?
  3. Whether in judging the appointment of the appellant as FMPHW, did the Trial Court introduce a criterion which is foreign to the advertisement notice as also the norms fixed by the Government?

Observations and Decision: While deliberating upon questions framed, the Court observed that Questions I and II are interconnected as they require consideration of S. 80, CPC.

  • It is provided under S. 80 of CPC that if the Court feels that there is no relief to be urgently granted, then it shall refuse to grant such leave and return the plaint. Refusal to grant relief is to be considered at the stage when a suit is sought to be filed without issuance of notice as required under S. 80, CPC. The plaint would be returned if at that stage, the Court finds that there is no urgency in the suit or in passing an urgent relief.
  • From the plain reading of S. 80 (3), CPC along with proviso attached to sub-section (3), it is clear that plaint can be returned if leave is refused. The consideration of application for a grant of temporary injunction would arise after leave is granted and notice in such application is given to the State or Government functionaries.
  • Vis-a-vis Question III, the Court observed that the local criteria for the appointment of FMPHW as per the advertisement, were at the village level. Furthermore, upon perusing the evidence recorded by the Trial Court, the Bench observed that no new criterion was introduced that was foreign to the advertisement. The High Court also pointed out that both the appellant and respondent were from the same village and fulfilled the criteria as contained in advertisement notice.
  • With the above-stated observations, the Court dismissed the appeal but allowed the appellant to make representations before official respondents if it is permissible.

[Raisa Banoo v. Shameema, 2022 SCC OnLine J&K 586, decided on 21-07-2022]


Advocates who appeared in this case :

G. A. Lone, & Mujeeb Andrabi, Advocates, for the Appellant;

Rayees Ahmad Ganaie, GA and Showkat Ali Khan, Advocates, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Prateek Jalan, J., expressed that,

For the purposes of an order under Order VII Rule 11 of the CPC, the Court must come to the conclusion that the plaint is required to be rejected.

Present petition was filed under Article 227 of the Constitution for directing against an order passed by which Senior Civil Judge, rejected the application of the petitioner-defendants under Order VII Rule 11 of the Code of Civil Procedure, 1908.

Plaintiffs filed the suit before the trial court and claimed to be the owners in possession of undivided shares. As against the petitioner, the plaintiffs’ principal claim was for a declaration against a sale deed executed by one M/s G.S. Kashyap and Sons (HUF) in favour of the petitioner 1 and as also an injunction against the petitioners from creating third-party interests in the said land.

Further, the plaintiffs also made three applications for an injunction under Order XXXIX Rules 1 and 2 of the CPC.

On 12-12-2018, petitioners filed a written statement and made an application under Order VII Rule 11 of the CPC and by that application petitioners contended that the plaintiffs had filed no title documents in support of their claim of ownership and had only filed revenue records which were insufficient to establish title.

Trial Court rejected the petitioner’s application under Order VII Rule 11 of the CPC.

Analysis, Law and Decision

High Court found no jurisdictional infirmity in the impugned order, so as to invite the supervisory jurisdiction of this Court under Article 227 of the Constitution.

Well Settled Law

For the purposes of rejection of the plaint under Order VII Rule 11 of the CPC, the Court is duty-bound to consider the contents of the plaint, and not to examine the sufficiency of the evidence or the defence put forth by the defendant.

The above position has been made clear by several Supreme Court decisions, including Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557, Popat and Kotecha Property v. SBI Staff Assn., (2005) 7 SCC 510 and Urvashiben v. Krishnakant Manuprasad Trivedi, (2019) 13 SCC 372.

The Bench expressed that,

Trial Court has cogently analysed the grounds taken by the petitioners and come to a conclusion that they do not fall within the scope of Order VII Rule 11 of the CPC. I do not find any jurisdictional defect or perversity in the said order so as to attract the supervisory jurisdiction of this Court under Article 227 of the Constitution. 

Lastly, the High Court declined to entertain the present petition under Article 227 of the Constitution of India. [Capital Land Builders (P) Ltd v. Shiv Kumar Jindad,  2022 SCC OnLine Del 176, decided on 19-1-2022]


Advocates before the Court:

For the petitioners: Gyaneshwar Narayan, Advocate

For the respondents: None

Case BriefsSupreme Court

Supreme Court: The bench of L. Nageswara Rao and BR Gavai*, JJ has lucidly explained the law on rejection of plaints under Order VII Rule 11 of CPC for want of cause of action and has held that in each the question that will have to be considered is as to whether the reliefs as claimed in the plaint by the plaintiffs could be granted or not and if none of the reliefs sought in the plaint can be granted then such a suit should be thrown out at the threshold.

Here’s the law explained by the Supreme Court on various occasions:

Dahiben v. Arvindbhai Kalyanji Bhanusali , (2020) 7 SCC 366

The power conferred on the court to terminate a civil action is a drastic one, and the conditions enumerated under Order VII Rule 11 of CPC are required to be strictly adhered to.  However, under Order VII Rule 11 of CPC, the duty is cast upon the court to determine whether the plaint discloses a cause of action, by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law.

The underlying object of Order VII Rule 11 of CPC is that when a plaint does not disclose a cause of action, the court would not permit the plaintiff to unnecessarily protract the proceedings.

“… in such a case, it will be necessary to put an end to the sham litigation so that further judicial time is not wasted.”

Even non-payment of entire sale consideration cannot be a ground cancellation of sale deed: SC

Pearlite Liners (P) Ltd. v. Manorama Sirsi, (2004) 3 SCC 172

If the court finds that none of the reliefs sought in the plaint can be granted to the plaintiff under the law, the question then arises is as to whether such a suit is to be allowed to continue and go for trial.   Holding that such a suit should be thrown out at the threshold, the Courtsaid,

“Why should a suit which is bound to be dismissed for want of jurisdiction of a court to grant the reliefs prayed for, be tried at all?”

T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467

Reading of the averments made in the plaint should not only be formal but also meaningful.  It has been held that if clever drafting has created the illusion of a cause of action, and a meaningful reading thereof would show that the pleadings are manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, then the court should exercise its power under Order VII Rule 11 of CPC.

“… such a suit has to be nipped in the bud at the first hearing itself.”

[Rajendra Bajoria v. Hemant Kumar Jalan, 2021 SCC OnLine SC 764, decided on 21.09.2021]

____________________________________________________________________

Appearances before the Court by:

For appellants: Senior Advocate Gopal Jain

For Respondents: Senior Advocates Dr. A.M. Singhvi, K.V. Viswanathan and Gopal Sankaranarayanan


*Judgment by: Justice BR Gavai

Know Thy Judge| Justice B.R. Gavai

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J., while allowing the instant petition, set aside the order of trial Court, thereby allowing the amendment of the plaint contrary to the provisions of Code of Civil Procedure.

In the present case, respondent instituted a suit before trial Court for obtaining a decree of declaration that respondent has got the absolute title, ownership and possession over the property described in the plaint, schedule C and also a decree of prohibitory injunction restraining the appellant from trespassing into that property. After commencement of the examination of witnesses in the suit, the respondent filed an application (Ext.P5) under Order VI Rule 17 of the Code of Civil Procedure, 1908 for amendment of the plaint, which was allowed by the trial Court.

The impugned order of the Trial Court was challenged in the instant petition. One of the main contentions raised by the petitioner was that the application for amendment of plaint cannot be allowed since it was filed by the respondent after the commencement of the trial of the suit.

While ascertaining the date of trial the Court reiterated its decision in Sasidharan v. Sudarsanan, 2020 SCC OnLine Ker 4540, wherein it was held that, “the trial in a suit commences on the date on which the affidavit in lieu of examination-in-chief of a party or his witness is filed for the purpose of recording evidence.” The Court further relied on Vidyabai v. Padmalatha, (2009) 2 SCC 409, where it was held by the Supreme Court that,

 “Order 6 Rule 17 CPC is couched in a mandatory form. Unless the jurisdictional fact, as envisaged in the proviso to Order 6 Rule 17 CPC is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint.”

The Court observed that the trial court has not considered whether the objections raised by the respondent are legally sustainable or not. Hence, the Court set aside the impugned order with the directions that the application is remanded to the trial court for fresh consideration and disposal. The trial court was directed to consider all relevant contentions raised by both parties and dispose of the application in accordance with law by a speaking order, within a period of one month from the date of production of a certified copy of this judgment. [T.V. Sasikala v. C.P. Joseph, 2020 SCC OnLine Ker 7702, decided on 21-12-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Subramonium Prasad, JJ., while observing a matrimonial application, observed that,

The plaint must be read as a whole to determine as to whether it discloses a cause of action.

In the instant matter, the husband/appellant sought to challenge the Order passed by Family Court dismissing an application filed by him under Order VII Rule 11(a) and (d) read with Order XIV Rule 2(2) of the Code of Civil Procedure.

Quick Glance — Fact of the Case

Husband and Wife had gotten married as per the Sikh rites and Hindu Vedic rites and ceremonies.

Appellant a US citizen had moved to that country with his parents in the year 1994. After the marriage, respondent/wife applied for permanent resident status.

Petition for Divorce

Appellant/husband and respondent/wife came to India with their child, while they were in India, respondent/wife filed a divorce petition under Section 13(1)(i–a) of the Hindu Marriage Act.

Husband/appellant on returning to USA alone filed for a divorce petition in Chicago, USA. He was granted an ex parte divorce on the ground of irretrievable breakdown of marriage.

Custody of Child

Appellant/Husband also approached the Circuit Court of Cook County, Illinois, USA for the custody of the child which was granted to him ex parte.

Writ of Habeas Corpus

Further, the appellant/husband had filed a writ petition in Delhi High Court for issuance of a writ of habeas corpus for the production and custody of the minor child.

On being aggrieved with the above, wife approached the Supreme Court which was allowed with directions to the parties to appear before the Family Court for the decision in regard to the custody of a minor child.

Order VII Rule 11 CPC

Appellant/Husband had moved an application under Order VII Rule 11 CPC for seeking rejection of the said petition on the plea that the provisions of the Act would apply to persons who are outside the territory of India only if they are domiciled in India.

Since the husband/appellant was domiciled in USA, only the wife/respondent was domiciled in India, the Act is not applicable to them.

Pre-Nuptial Agreement

Husband also contended that prior to their marriage, they had entered into a pre-nuptial agreement, hence they will be governed under that.

Family Court had dismissed the application filed by the appellant/husband under Order VII Rule 11 CPC and stated that appellant/husband cannot be allowed to selectively refer to the pleadings of the respondent/wife.

Further, the family court held that it is for the Court to determine as to whether the facts of a case conclusively establish that the respondent/wife had acquired US Domicile, Family Court rejected the stand of the appellant/husband that the divorce petition filed by the respondent/wife is barred by law.

Counsel for the appellant/husband Prabhjit Jauhar and Malvika Rajkotia, Counsel for the respondent/wife.

Analysis & Decision

A meaningful reading of the entire plaint must be conducted for the court to satisfy itself as to whether the averments made therein if taken to be correct in their entirety, would result in a decree being passed.

For the above-stated position, several Supreme Court’s Decisions were relied on including  in T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467,

Popat and Kotecha Property v. State Bank of India Staff Assn., (2005) 7 SCC 510:

There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint.

Hardesh Ores (P) Ltd. v. Hede & Company, (2007) 5 SCC 614:

The averments made in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense.

Court in view of the above observed that,

A plaint cannot be rejected on the basis of allegations levelled by the defendant in the written statement or for that matter, in an application moved under Order VII Rule 11 CPC.

The Court must be mindful of the underlying object of Order VII Rule 11 CPC which is to nip in the bud, irresponsible and vexatious suits.

In the instant matter, it has to be determined as to whether the divorce petition filed by the respondent/wife deserves to be rejected or not.

Section 19 of the Hindu Marriage Act offers multiple options as to the local District Court where a Divorce petition can be presented. It includes the place where the marriage of the parties was solemnized or where the respondent resides at the time of presentation of the petition or in case the wife is the petitioner, where she is residing on the date of presentation of the petition or where the petitioner is residing at the time of presentation of a petition in a case where the respondent at that relevant point in time, is residing outside the territories to which the Act extends, as contemplated in Section 1(2).

The Supreme Court decision in Neeraja Saraph v. Jayant V. Saraph, (1994) 6 SCC 461, brought the need for legislation to protect spouses who had been deserted outside the country, wherein the issue that was highlighted was to protect the rights of women deserted by NRI husbands and faced decrees of the annulment of marriage from foreign courts.

Concept of ‘Resident’ and ‘Domicile’:

Union of India v. Dudh Nath Prasad, (2000) 2 SCC 20:

“27. ………..The classical division of domicile is well known. There are the domicile of origin, the domicile of choice and the domicile of dependence. There has been little change in the essential concept of these three domiciles…

28. In view of the above, the concept of “domicile” as canvassed by learned counsel for the appellants with reference to change of nationality or change of domicile from one country to another, cannot be imported in the present case. Moreover, “Domicile” and “Residence” are relative concepts and have to be understood in the context in which they are used, having regard to the nature and purpose of the statute in which these words are used.

(emphasis supplied)

Bench stated that under Order VII Rule 11, CPC, the court can only scrutinize the contents of the plaint taken as a whole but it cannot consider the evidence, if any, or the pleas taken in the written statement.

In the instant matter, the respondent/wife categorically stated in her petition that she wanted to reside in India. After the amendment to the Act in the year 2003 and on insertion of sub-clause (iiia) in Section 19, it cannot be said that Family Courts in Delhi are not vested with the jurisdiction to try and entertain the divorce petition filed by the respondent/wife.

High Court held that the appellant/husband cannot raise an objection to the respondent/wife initiating proceedings of divorce in India under the provisions of the Act only because he is a US citizen and domiciled in the USA.

In the instant case, the respondent/wife remains a citizen of India and therefore, is a domicile of India for all intents and purposes. She has chosen to approach the courts in India for obtaining a decree for divorce.

Divorce petition filed by the respondent/wife read as a whole, does disclose a valid cause of action that can be entertained by the Family Court in India.

No infirmity was found in the impugned judgment. [Karan Goel v. Kanika Goel, 2020 SCC OnLine Del 1319, decided on 12-10-2020]

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma J., upheld the impugned judgment and dismissed the petition.

The facts, in a nutshell, are that parties to the suit of the impugned judgment are in joint owner-in-possession of the suit land. Father of the parties executed a Will dated 19-5-2003 in favour of plaintiff, defendant and proforma defendant 1. After execution of Will dated 19-5-2003, on account of uncalled for behaviour of the defendant, father of the plaintiff cancelled the Will dated 19-5-2003 and executed a fresh Will dated 3-4-2008. Proforma defendant, Krishna Devi also died during the pendency of the suit and as such, she also executed Will dated 1-8-2012 in favour of plaintiff.  The instant petition is filed under Article  227 of the Constitution of India, laying challenge to order dated 18-4-2018 passed by learned Senior Civil Judge Nadaun, District Hamirpur, Himachal Pradesh, whereby an application under Order XXIII, Rule 1(3) read with Section 151 Civil Procedure Code, seeking therein permission to withdraw the suit with liberty to file afresh, came to be dismissed.

The petitioner submitted that he should not suffer for lapse on the part of counsel as he failed to institute the suit against proper parties. The petitioner was represented by counsel Ramakant Sharma and Bhuvnesh Sharma. Counsel Sanjay Dutt Vasudeva represented the respondents.

The Court observed that since no proper service has been effected, the suit would fail, dismissed the application on the ground that non-joinder of proper parties cannot be said to be a formal defect, rather said defect can be cured by way of filing an appropriate application for impleadment/amendment of plaint

The Court held s well settled that non-joinder or non-description of suit land is not a formal defect, rather same can be cured by way of filing an appropriate application.

In view of the above, impugned judgment upheld and petition dismissed.[Joginder Singh v. Surinder Pal, 2020 SCC OnLine HP 1793, decided on 29-09-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: Answering a reference the 3-judge bench of RF Nariman, Navin Sinha and Indira Banerjee, JJ has held that if a plaint is returned under Order VII Rule 10 and 10A of CPC, for presentation in the court in which it should have been instituted, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo.

The Court was hearing the reference by a two Judge Bench opining a perceived conflict between two Division Bench decisions in Joginder Tuli v. S.L. Bhatia, (1997) 1 SCC 502 and Oil and Natural Gas Corporation Ltd. v. Modern Construction & Co., (2014) 1 SCC 648.

Joginder Tuli verdict

“Normally, when the plaint is directed to be returned for presentation to the proper court perhaps it has to   start   from   the beginning but in this case, since the evidence was already adduced by the parties, the matter was tried accordingly. The High Court had directed to proceed from that stage at which the suit stood transferred. We find no illegality in the order passed by the High Court warranting interference.”

Modern Constructions verdict

“If the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order 7 Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same.”

Issue referred

If a plaint is returned under Order VII Rule 10 and 10A of CPC, for presentation in the court in which it should have been instituted, whether the suit shall proceed de novo or will it continue from the stage where it was pending before the court at the time of returning of the plaint?

Larger Bench’s answer to reference

The Court noticed that the observations in Joginder Tuli verdict are very clear that the suit has to proceed afresh before the proper court and that the directions came to be made more in the peculiar facts of the case in exercise of the discretionary jurisdiction under Article 136 of the Constitution. Further, it does not take into consideration any earlier judgments and there is no discussion of the law either. Hence, it has no precedential value as laying down any law.

The Modern Construction verdict, on the hand, was pronounced after consideration of the law and precedents requiring reconsideration in view of any conflict with Joginder Tuli Verdict and hence, lays down the correct law.

The Court also overruled the ruling in Oriental Insurance Company Ltd. v. Tejparas Associates and Exports Pvt. Ltd., (2019) 9 SCC 435, wherein it was held that in pursuance of the amendment dated 01­02­1977 by reason of insertion of Rule 10A to Order VII, it cannot be said that under all circumstances the return of a plaint for presentation before the appropriate court shall be considered as a fresh filing.

Explaining the statutory scheme, the Court noticed that the language of Order VII Rule 10-A is in marked contrast to the language of Section 24(2) and Section 25(3) of CPC. In cases dealing with transfer of proceedings from a Court having jurisdiction to another Court, the discretion vested in the Court by Sections 24(2) and 25(3) either to retry the proceedings or proceed from the point at which such proceeding was transferred or withdrawn, is in marked contrast to the scheme under Order VII Rule 10 read with Rule 10-A where no such discretion is given and the proceeding has to commence de novo.

The Court, hence, held that Oriental Insurance Co. does not lay down the correct law.

[EXL Careers v. Frankfinn Aviation Services Pvt. Ltd.,  2020 SCC OnLine SC 621 , decided on 05.08.2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: Prakash Shrivastava, J., dismissed the revision petition filed by the respondents under Section 115 CPC where they challenged the order of the Trial Court, whereby their application for rejection of plaint under Order 7 Rule 11 CPC was rejected.

The respondents had filed the suit for declaration and permanent injunction, wherein the petitioners had filed the application for rejection of plaint which has been dismissed by the impugned order. The petitioner argued that he was carrying his business on the suit property and earlier had filed a writ petition before the High Court. The Court issued directions relating to map and permission to construct Pakka shop and for non-compliance of the said contempt was also filed, therefore, the present suit was not maintainable and the trial court had committed an error in rejecting the application under Order 7 Rule 11 CPC.

The respondent submitted that post the passing of the order in Writ Petition and Contempt Petition, a lot of development has taken place and the order of the Trial Court does not suffer from any error.

The Court held that the plaint can be rejected under Order 7 Rule 11 CPC if the defendant is able to point out that any of the grounds which are mentioned in Rule 11 exists on the basis of the plaint averment. The petitioners could not point that there is any bar in entertaining the suit before the Trial Court. Merely on the basis of the order in the writ petition and in the contempt petition the plaint cannot be rejected on the ground that it does not disclose any cause of action, when otherwise in the plaint cause of action has been disclosed. The Trial court had rightly taken note of the fact that the materials on which the petitioners were placing reliance upon cannot be considered for rejection of plaint under Order 7 Rule 11 CPC. There was no illegality in the order passed by the Trial Court and the revision petition was found to be devoid of any merit and was dismissed. [Purshottam v. Murlidhar, 2019 SCC OnLine MP 2099, decided on 22-08-2019]

Telangana High Court
Case BriefsHigh Courts

 

Hyderabad High Court: In the instant appeal, the question arose that whether a counter-claim can be rejected in terms of Order VII, Rule 11 of CPC, to which the Bench of V. Ramasubramanian, J., held that in addition to the parameters provided in Order VII, Rule 11 of CPC, the Court must examine while dealing with a prayer for rejection of the counter-claim, as to whether the rejection of the counter-claim would have the effect of striking off the defence and rendering the defendant defenceless. It was also observed that at the stage of invoking Order VII, Rule 11 CPC, the Court is not concerned with the merits of the claim. But while dealing with a written statement, the Court will certainly consider the merits of the claim

As per facts of the present case, an eviction suit was filed by the respondents against the appellants. The respondents claimed that a shop was taken on lease by the father of the appellant/defendant in December, 2003 and subsequently took over the shop; and that the appellant/defendant committed default in payment of rent from April, 2015 and therefore after issuing an eviction notice dated 23-12-2015, the respondents/plaintiffs were forced to file the suit for eviction. The appellant contended that the lease was for 25 years and that therefore he was not liable to be evicted. In addition the appellant/defendant also made a counter-claim by seeking a decree for the relief of specific performance of the registration of the lease deed. The respondents/plaintiffs however made a request to the trial court to reject the counter-claim in terms of Order VII, Rule 11 of CPC which was accepted by the trial court, thereby resulting in the present second appeal.

Perusing the facts of the case and the provisions of CPC, the Bench observed that Order VIII, Rule 6-A(4) CPC clearly states that a counter-claim shall be treated as a plaint and governed by the rules applicable to plaints, therefore, the applicability of Order VII, Rule 11 CPC to counter-claims cannot be ruled out. Generally a counter-claim which consists of the defence to the plaintiffs claim and another comprising of the counter-claim and the survival of one does not depend upon the other; it may be possible to apply Order VII, Rule 11, however in cases where defence to a suit and the counter- claim are joined in such a manner as “Siamese twins”, with an inherent danger to the survival of the defence to the suit, upon the rejection of the counter-claim, the Court must do something more than what Order VII, Rule 11 generally mandates. Noting the provisions laid down under Order VIII, Rule 6-A(1) sub-rule (2), Order VIII, Rule 6-A, Order VIII Rule 6-A sub-rule (4) and Order VIII, Rule 6-C of CPC, the Court observed that a counter-claim is not exactly the same as a plaint, despite having the traits of a plaint and the scheme of Order VIII, Rules 6-A to 6-G of CPC itself recognises the fact that there could be two different scenarios, one where the counter-claim could be intertwined with the defence and another where it is capable of being prosecuted as an independent suit. [Jinendra Jewellers v. B.Venkateswara Rao, 2017 SCC OnLine Hyd 442,  decided on 15.12.2017]