Case BriefsHigh Courts

Kerala High Court: The Bench of A. Hariprasad, J. hearing an appeal against remand order, answered substantial questions of law in relation to suits instituted by a next friend.

Respondent, purportedly on behalf of his alleged mentally infirm sister Rohini, filed a suit for declaration that a registered document executed by her was null and void. Trial court conducted an enquiry in respect of Rohini’s mental condition under Order XXXII Rule 15 of the Code of Civil Procedure, 1908 and rejected the plaint finding that Rohini was not mentally unstable. Respondent preferred an appeal in District Court against the said order of rejection. Pending appeal, Rohini expired. District Court, without conducting any enquiry under Order XXXII Rule 15 of the Code, found rejection of plaint as improper and remanded the case to trial court. Aggrieved thereby, the instant appeal was filed.

The Court observed that as per Order XXXII Rule 12, if the alleged mentally infirm person, after due enquiry is found by the court to be of sound mind, then the court is obliged to ascertain whether he elects to proceed with the suit or to get it dismissed. It was noted that the said duty was not performed by trial court and thus rejection of suit was highly improper. In such a situation, neither Section 104 nor Order XLII of the CPC permits an appeal.

Even if the rejection of plaint was regarded as bad in law, the trial court did follow procedure under Order XXXII Rule 15 of the Code. Hence, the only question that could have been decided by the District Court was the legality and propriety of enquiry conducted by the trial court. It was legally incompetent for the District Court to remand a non-est appeal.

In view of the above, the appeal was allowed and remand order was set aside. [C.V. Premakumari v. C.V. Pavithran, 2018 SCC OnLine Ker 5472, decided on 07-12-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of A.S. Chandurkar, J. allowed a civil revision application filed by the tenant — Dena Bank, against the order of the trial court whereby its application under Order 7 Rule 11(d) CPC for rejection of the plaint filed by the landlord for its eviction was dismissed.

The Bank filed the abovesaid application stating that in the light of provisions of Section 17(4-A) read with Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Act, 2002 (SARFAESI), the civil court had no jurisdiction in the suit. However, the application was rejected. Aggrieved thus, the Bank approached the High Court.

The High Court noted that according to Section 17(4-A), any person who is aggrieved by any of the measures referred to in Section 13(4) of  SARFAESI being taken by a secured creditor can approach Debts Recovery Tribunal and can raise a grievance. A person claiming tenancy or leasehold is also entitled to make such application under Section 17. As per Section 34, a civil court has no jurisdiction to entertain any suit or proceeding with regard to any matter which the DRT is empowered to adjudicate under SARFAESI. The High Court, on the basis of the above, held that the trial court rejected the application of the Bank without having regard to Section 17(4-A) and therefore committed a jurisdictional error. Hence, the order impugned was quashed and set aside. The application filed by the Bank under Order 7 Rule 11(d) was allowed. However, it was open to the landlord to take such other steps as permitted under law. The civil revision was accordingly allowed. [Dena Bank v. Pravin Vithalrao Dorkhande,2018 SCC OnLine Bom 2800, decided on 26-09-2018]

Case BriefsHigh Courts

Hyderabad High Court: In the instant appeal, question arose that whether the Application I.A.No. 1751 of 2006 filed for recovery of shares, is an application under Section 8 of the Arbitration and Conciliation Act, 1996 or whether it is an application under Order VII Rule 11 of CPC seeking rejection of plaint on the ground that arbitration clause in the contract bars the suit. The Division Bench of S.K. Kait and D.V.S.S. Somayajulu, JJ., allowing the appeal held that, the said application is under Order VII Rule 11 CPC seeking rejection of the plaint while observing that when a statute describes or requires a thing to be done in a particular manner; it should be done in that manner or not at all.

As per the history of the case, in 2005 a suit was filed for recovery of shares of various companies belonging to the appellants’ share allegedly sold by the respondents/defendants. Post the filing of the suit, one of the defendants filed an application under Order VII Rule 11 CPC pleading inter alia that the dispute between the parties should be settled according to arbitration as per Bye-law No. 248(c) of the Bombay Stock Exchange Bye-laws. However, instead of asking for an order under Section 8 of the 1996 Act to refer the parties to arbitration, the defendant sought for rejection of the plaint. The Additional Chief Judge, City Civil Court, Secunderabad while agreeing that there is a valid arbitration clause, rejected the plaint thereby leaving the parties to invoke the arbitration clause. The appellants/plaintiffs via their counsel Mahmood Ali in addition to opposing the application of 2006 also argued that the appellants were not in the purview of the arbitration clause. However the respondents/ defendants’ counsel argued that the arbitration clause was well highlighted in the contract between the parties and that this Court has no jurisdiction over the matter as per the provisions of Section 8 of 1996 Act.

The Division Bench duly noting the averments made by the counsel observed that the issue of the case is that whether the Chief Judge was right in “rejecting” the plaint. The Court observed that the lower court should have noted that Section 8 of only empowers the Court to “refer” the parties to arbitration but does not give the Court an option to reject a plaint whereas Order VII Rule 11 CPC empowers the Court to reject the plaint, when there is “bar” to the suit because of any law and Section 8 is not a bar to a Civil Court and provides an alternative to a defendant against whom a civil suit is initiated to submit to the jurisdiction of the civil Court. The Court observed that an application under Section 8 of the Act is an application that should be made in a particular manner and at particular time. The application should be accompanied by the original arbitration agreement or a certified copy thereof. The Court thus noted that the lower court did understand it as an application under Order VII Rule 11 CPC only. However the Division Bench also observed that the application was misconceived in the first place and thereby set aside the order of the lower court dated 16.11.2006. [M. Shankara Reddy v. Amara Ramakoteswara Rao, 2017 SCC OnLine Hyd 426, decided on 24.10.2017]

Case BriefsHigh Courts

Rajasthan High Court: The petitioner aggrieved by an order of rejection of his application under Order VII Rule 11 CPC by the Senior Civil Judge, Rajgarh preferred a petition. The respondent filed a suit for eviction and mesne profit against the petitioner-defendant before the Civil Judge, Rajgarh, Churu. During the pendency of the suit, the petitioner preferred an application under Order VII Rule 11 CPC seeking rejection of the plaint on the ground that the respondent had terminated his tenancy vide notice dated 30.11.14 and thereafter, the tenancy could not have been terminated by way of yet another notice dated 11.12.15 and therefore, the suit is liable to be dismissed as the same would be barred by the principle of res judicata. The application was rejected by the court observing that the objections raised by the petitioner could only be decided after framing the issues, on the basis of the evidence to be led by the parties.

Learned counsel appearing for the petitioner reiterating the stand taken before the court submitted that the tenancy having been terminated w.e.f. 30.11.14, the suit filed on the basis of the cause of action alleged to have been accrued pursuant to the notice dated 11.12.15 is not maintainable.

The High Court held that it is settled law that while deciding an application for rejection of the plaint under Order VII Rule 11(d), the court is not competent to go into correctness or otherwise of the allegations contained in the plaint. The Court stated that the plaint can only be rejected if from bare perusal of the statement in the plaint without any addition or subtraction it appears to be barred by law.

The High Court not finding any infirmity, illegality or jurisdictional error in the trial court’s verdict refused to exercise its revisional jurisdiction and dismissed the petition stating that the suit as framed in no manner could be said to be barred by law. [Sudesh Kumar Saini v. Shri Satyanarayan Ji Mandir Dharmarth Turst, Post Sadulpur Disstt Churu, 2017 SCC OnLine Raj 2417, decided on 5.7.2017]