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Madhya Pradesh High Court: Rohit Arya, J., dismissed a revision petition which was filed after the dismissal of Petitioner’s application under Order 7 Rule 11 CPC.

The respondent/wife and three children were plaintiffs in the suit seeking relief that they were entitled to half share of the property managed by petitioner. Suit had been filed on the premise that marriage was solemnized between them 17 years ago, they were blessed with three children. Since October 2019 petitioner had ousted plaintiffs from the home and prior to that, he used to come home in a drunken state and picking up fights with his wife and also used to physically assault her. To add pain to the injury, he had also kept a lady with him by the name Pushpa and was living like husband and wife, gradually he started creating the third party right in the existing properties managed by him.

In the aforesaid backdrop of factual matrix, wife and children (now respondents) had filed the suit alleging mishandling of the property and alienation thereof to their prejudice with the assertion that they were entitled for their share in the property. The petitioner had in turn filed an application under Order 7 Rule 11 CPC styling himself to be the exclusive owner of the properties allegedly self-acquired by him.

The Trial Court had rejected the application under Order 7 Rule 11 CPC opining that only plaint averments were to be seen for deciding such an application, it further had held that the claim of share in the properties or right of succession were not pure questions of law instead they were mixed question of law and fact. Unless parties lead evidence in support of their pleadings, said questions could not be answered.

This Court while dismissing the revision held that the trial Court had applied correct principles of law while rejecting the application under Order 7 Rule 11 CPC and there was no illegality or jurisdictional error warranting interference under Section 115 of CPC.[Rajesh Vishwakarma v. Sapna Vishwakarma, 2021 SCC OnLine MP 388, decided on 19-02-2021]

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Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J. dismissed an application filed under Section 115 CPC taking exception to the order of the Civil Judge whereby he rejected applicants application seeking rejection of plaint by the respondent-plaintiff.

The applicant-defendant filed an application under Order 7 Rule 11 (d) read with Order 23 Rule 3 and 4(b) CPC, urging for rejection of plaint filed by the respondent. It was his case that the respondent had earlier instituted a Summary Suit before the trial court but withdrew it. However, soon thereafter, the respondent instituted another Special Civil Suit on the same cause of action.

The applicant represented by S.M. Oak instructed by Sagar Anant Joshi, Advocates, contended that the previous suit was withdrawn by the respondent unconditionally without liberty to institute a fresh suit in terms of Rule 3 read with Rule 4 and Order 23 CPC. The applicant, therefore, contended that in the absence of expressed liberty to institute a fresh suit, the present subject suit field subsequently was not maintainable. However, the applicant’s application was rejected by the Civil Judge.

Perusing the application for withdrawal of the previous suit filed by the respondent, the High Court noted that respondent sought leave to withdraw the previous suit with liberty to file a fresh suit. From the impugned order, it was more than clear that the trial court had recorded its satisfaction as required under Order 13 Rule 3(a) CPC, having found substance in the application, and granted permission to withdraw the suit.

It was observed: “Contention of the Applicant that though Plaintiff was permitted to withdraw the suit but in absence of express liberty to institute fresh suit, second suit was not maintainable, cannot be accepted. In as much as prayer for withdrawal and liberty to file fresh suit cannot be split up in two parts viz. withdrawal and liberty to file fresh suit. It has to be allowed as whole or rejected as whole. It is well settled that if an application is made for withdrawal of the suit with liberty to file suit, it is not open for the Court to grant only permission for withdrawal, without liberty to institute the proceedings, though it is open for the Court to reject such application.”

In such view of the matter, it was held that the present application was devoid of merits and was therefore dismissed. [Chandrakant Pandurang Shingade v. Sau. Manjusha Chandrakant Shingade, 2019 SCC OnLine Bom 1669, decided on 06-08-2019]

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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]

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Delhi High court: Vibhu Bhkaru, J. dismissed a revision petition filed under Section 115 CPC impugning an order passed by the Additional District Judge in the subject summary suit whereby the respondents were granted unconditional Leave to Defend.

The respondents had defaulted in repaying the loan extended to them by the petitioner. Thereafter, the petitioner filed a suit for recovery of the loan under Order 37 CPC. The respondents, in response to the aforesaid summary suit, filed a reply to the application filed by the plaintiff under Order 37 Rule 3(4) CPC for “summons for judgment”, instead of an application under Order 37 Rule 5 for “leave to defend”. By the impugned order the trial judge held that the said discrepancy could be ignored, and the reply filed on behalf of the respondents could be treated as leave to defend in the interest of justice. He accordingly granted the respondents an unconditional leave to defend. Aggrieved thereby, the petitioner filed the present revision.

Preeti Singh, Advocate for the petitioner contended that trial court grossly erred in treating the reply filed by the respondents as an application for leave to defend under Order 37 Rule 3(5).

The High Court, however, was of the view that the contentions of the petitioner were not persuasive. It was observed: It is relevant to bear in mind the object of prescribing the procedure for seeking leave to defend under Order 37 Rule 3(5) CPC. The rationale for evolving such a procedure, requiring the defendant to file a leave to defend, is to enable the Court to evaluate whether there exist any triable issue warranting the suit to be set down for trial. In the present case, the reply filed by the respondents had clearly set out the grounds of defence.” It was reiterated that the rules of procedure are meant to aid the delivery of justice and a minor infraction of such rules of procedure ought not to visit the concerned party with consequences which substantially defeat the ends of justice.

Also, the petitioner did not contest the trial court’s conclusion that the respondents had a reasonable defence. In such view of the matter, the Court dismissed the revision petition.[Netrapal Singh v. Ravinder Kumar Kalyanai, 2019 SCC OnLine Del 9622, decided on 07-08-2019]

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Gujarat High Court: A Bench of A.J. Shastri, J. dismissed a petition being devoid of merit as the case did not fall in any of the parameters of Section 115 of Code of Civil Procedure which would permit the Court to exercise the discretion provided under it.

In the present Civil Revision Application, the common judgment of the Principal Senior Civil Judge was challenged. The original suit was filed for seeking dissolution of partnership and for the purpose of accounts and for its share to be distributed and also for an interim injunction where the contentions put forth by the respondents was rejected. The present petitioners being aggrieved of the order contended the partnership in question itself, that not only some of the partners but also their nominees have passed away. Therefore, there remains no cause of action to continue the suit or claim and also the plaint itself is barred by law of limitation. And that the partnership deed has not been operated or continued after the year 1985. Mr Vimal Purohit, learned advocate appearing on behalf of contesting respondents had submitted that if a true construction of partnership is seen from the clauses contained in the partnership deed, a dissolution can never be inferred from 1985. He further submitted that the contract is clearly indicating that partnership can continue even after the death of a partner by inserting nominees as partners. Also, contended that even cause of action is also clearly spelled out in the plaint itself and from the bare averments made in the plaint. To substantiate further two cases were relied upon, Khushal Khemgar Shah v. Khorshed Banu Dadiba Boatwalla, (1970) 1 SCC 415 and Kodendera K. Uthaiaha v. P.M. Medappa, (2017) 16 SCC 331.

The Court while referring to the cases cited, held that, the scope analysed by the Hon’ble Court on the exercise of jurisdiction is aptly propounded in the decisions. The Court further opined that, “first of all the order impugned in the revision application is not possible to be construed as perverse in any manner particularly in view of the fact that contentions which have been raised have been dealt with properly by the learned trial judge and additionally the proposition of law laid down by series of decisions have also been taken note of”. And this case does not fall in any of the parameters required for exercising jurisdiction under Section 115 of CPC.  The revision application being devoid of merit was thus dismissed.[Ramankant Nanalal Jasani v. Sureshchadra Amrutlal Jasani, 2019 SCC OnLine Guj 582, Order dated 11-03-2019]

Gauhati High Court
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Gauhati High Court: A Single Judge Bench comprising of Kalyan Rai Surana, J. dismissed a revision petition filed under Section 115 CPC read with Article 226 of the Constitution against the order of Civil Judge whereby he returned the plaint filed by the petitioner for filing the same before appropriate court in Delhi.

The petitioner had filed a money suit against the respondent before Civil Judge, Kamrup, Gauhati. The action arose out of a written agency agreement between the parties. It is pertinent to note that the same agreement contained a clause that made all the claims arising out of or in relation to the agreement to be subject to jurisdiction of the courts at Delhi. Accordingly, the Civil Judge returned the plaint directing the petitioner to file the same before courts at Delhi. Aggrieved by the same, the petitioner filed the instant revision.

The High Court perused the agreement. The question before the  Court was ‘whether courts at Gauhati had jurisdiction to adjudicate the claim or whether the clause conferring jurisdiction to Delhi courts would act as an ouster of jurisdiction?’. On appreciation of the facts, the Court noted that all the transactions between the parties occurred within the territorial jurisdiction of courts both in Delhi and Gauhati. It was also noted that the present transaction for which the action was brought (security deposit clause) was not independent of the agreement between the parties subjecting all disputes to jurisdiction of Delhi courts. Reliance was placed in Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd., (2013) 9 SCC 32 to hold that notwithstanding where the agency agreement was to be performed, the existence of the jurisdiction clause makes intention of the parties very clear that they desire the disputes relating to the agreement to be settled by the Delhi courts. Accordingly, it was held that courts at Delhi would have jurisdiction to settle disputes between the parties. The revision petition was, thus, dismissed. [Pankaj Baid v. Bawa Masala Co.,2018 SCC OnLine Gau 908, dated 17-08-2018]