[Order 7 Rule 11 CPC] Civil Court's Jurisdiction Not Ousted Where Procedure Prescribed In Particular Statute Not Followed: Bombay High Court

The Bombay High Court said that the court's power to reject a plaint under Order 7 Rule 11 of Civil Procedure Code (CPC) is a drastic power which is to be exercised carefully.Justice Anuja Prabhudessai was dealing with an appeal challenging trial court's order rejecting the appellant's plaint in a property dispute. The Court quashed the order and directed the lower court to proceed with the trial. "The rejection of the plaint under Order VII Rule 11 is a drastic power conferred on the court to terminate the civil action at the threshold. Therefore, the conditions precedent to the exercise of power are stringent", the court stated. In the instant case the appellant was the plaintiff in the suit. He was challenging the Collector's order in a property dispute involving the property of his grand-parents. One of the defendants filed an application for rejection of plaint under Order 7 Rule 11(d) of CPC claiming that the plaint is barred under law as per Section 12F of Daman Abolition of Proprietorship of Villages Regulation, 1962 (DAVPR). The trial court passed an order dismissing the application stating that the collector had not followed basic principles of judicial procedure and hence the civil court's jurisdiction was not barred. Subsequently, another defendant filed an application for rejection of plaint on the same ground as well as on the ground that limitation period has expired. This time, the trial court allowed the application and rejected the plain without referring to the previous order. The appellant represented by Senior counsel Ram Apte contended that the earlier order dismissing the application for rejection was not challenged and had attained finality. Thus, principle of res judicata is applicable. The court cannot subsequently allow another application for rejection of plaint on the same grounds. The respondent represented by Advocate Prathamesh Bhosale and others submitted that while exercising powers under Order VII Rule 11, Court has to read averments with documents relied upon in plaint as a whole, without addition or subtraction of any words. It was submitted that there is gross delay on the part of the plaintiff in instituting the suit and the same is barred by the law of limitation. It was further argued that the Plaintiffs have challenged the orders passed by the concerned authorities under Section 12A of the DAVPR. However, the jurisdiction of the Civil Court to entertain such challenge is expressly barred under Section 12F of the DAVPR. The court relied on decision of the Apex Court in Dhulabai v. State of Madhya Pradesh which held that the bar of jurisdiction should not be inferred in cases where the statutory authority has not acted in conformity with the fundamental principles of judicial procedure. The court also relied on Apex Court judgment in Y.B.Patil v. Y.L.Patil which held that principles of res judicata can be invoked in subsequent stage of the same proceeding. The court noted that the lower court had dismissed the earlier application for rejection of plaint of merits. The Judge recorded a specific finding that the concerned authorities had not followed fundamental principles of judicial procedure. These findings operate as res judicata. The court concluded, "the learned Judge entertained the subsequent application and passed a contradictory order without referring to the previous order and considering the elaborate reasons recorded therein. This in my view is nothing but sheer abuse of process of law". The court also observed that the Collector's order was passed against a dead person and as such it is null. It cannot operate against the legal representatives who were never brought on record to defend their case. The court concluded that the averments in the plaint indicate that the Collector did not comply with statutory provisions and did not follow proper judicial procedure. In such a case, the as per Dhulabai judgment, Section 12F of DAVPR would not act as a bar to the jurisdiction of the civil court. On the question of limitation, the court stated, "when the Plaintiffs claim that they gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order VII Rule 11". Case no. – First Appeal No. 170 of 2022 Case title – Manu Babu Patel v. Prakash Mohanlal Desai and Ors.Citation : 2022 LiveLaw (Bom) 290 Coram – Justice Anuja Prabhudesai Click Here To Read/Download Order

[Order 7 Rule 11 CPC] Civil Court's Jurisdiction Not Ousted Where Procedure Prescribed In Particular Statute Not Followed: Bombay High Court

Amisha Shrivastava

This is a premium content
Available exclusively to
Our subscribers

INR 1099+GST

Tags

Amisha Shrivastava

[Order 7 Rule 11 CPC] Civil Court's Jurisdiction Not Ousted Where Procedure Prescribed In Particular Statute Not Followed: Bombay High Court

Amisha Shrivastava

This is a premium content Available exclusively to Our subscribers

INR 1099+GST

Tags

Amisha Shrivastava

This is a premium content
Available exclusively to
Our subscribers