25 Dec 2019 12:04 PM GMT
A division bench of the Himachal Pradesh High Court has reiterated that while considering an application under Order 7 Rule 11 of the CPC for rejection of plaint, the Court has to examine the averments in the plaint and that the pleas taken by the defendants in its written statement would be irrelevant. The order was passed by Chief Justice L. Narayana Swamy and Justice Jyotsna Rewal...
A division bench of the Himachal Pradesh High Court has reiterated that while considering an application under Order 7 Rule 11 of the CPC for rejection of plaint, the Court has to examine the averments in the plaint and that the pleas taken by the defendants in its written statement would be irrelevant.
The order was passed by Chief Justice L. Narayana Swamy and Justice Jyotsna Rewal Dua in an appeal against the order of the Single Judge of the high court, whereby the Appellant's application under Order 7 Rule 11 of the CPC, seeking rejection of the Respondent's (herein) plaint was dismissed.
Vide the said application, the Appellant sought rejection of the plaint seeking co-parcenery rights over an ancestral property. The parties had entered into a compromise with regards the said property. Nevertheless, the Respondent had approached the court asserting that he is a co-parcener, having rights over the ancestral property and that the compromise entered into between the parties is contrary to the rights accrued in his favour. He made a prayer to set aside the compromise and to declare that he is entitled to ¼ share in the property.
The Appellant asserted that the Respondent had no right or interest in the property and that the plaint did not disclose any cause of action. It was submitted that the property though was Hindu Undivided Family (HUF) property, their great grandfather had gifted the property in his favour and thereby the property had lost the character of an ancestral property.
Refusing to accept this contention, the division bench concurred with the findings of the Single Judge that on demise of the great grandfather of the Respondent, his father became a karta; creating his interest in the property as a coparcener. And even though the settlement entered into between the parties excluded him from enjoying such a right, it cannot be denied that the original right accrued in his favour becomes a cause of action for the purpose of Order 7 Rule 11 of CPC.
"when the plaintiff in the suit has averred that the suit property is an ancestral property and when such is the subject matter of the suit filed by the plaintiff, which is denied by the appellants/defendants, it is not open for them to take an altogether "U" turn by saying that the ancestral property loses its character," the court said.
Thus it was held that the plaint discloses a cause of action. It was reinstated that while considering the application for rejection of plaint, whole pleadings of the parties and their respective cases have to be considered, and that rejection of the plaint cannot be done in a mechanical way.
Reliance was placed upon Bhau Ram v. Janak Singh & Ors. AIR 2012 SC 3023, wherein it was held as under,
"The law has been settled by this Court in various decisions that while considering an application under Order VII Rule 11 CPC, the Court has to examine the averments in the plaint and the pleas taken by the defendants in its written statements would be irrelevant…"
Reference was also made to the ruling in Kuldeep Singh Pathnia v. Bikram Singh Jaryal, 2017 (5) SCC 345, wherein it has been recorded that the Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising its powers under Order 7 Rule 11 of the CPC.
Lastly, while dismissing the appeal, the court remarked,
"when a case of this nature comes to a Court it is not proper to allow the application only on mere asking, the Court has to examine the pleadings made in the plaint read with the conditions set out in Order 7 Rule 11 of the CPC referred to supra, otherwise, it will result into miscarriage of justice."
The said conditions are:
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate; and
(f) where the plaintiff fails to comply with the provisions of rule 9.
Case Title: Savita Sharma & Ors. v. Master Abeer Singh & Ors.
Case No.: LPA No. 19/2019 with OSA No. 2/ 2019
Quorum: Chief Justice L. Narayana Swamy and Justice Jyotsna Rewal Dua
Appearance: Senior Advocate Sudhir Thakur with Advocate Karun Negi (for Appellants); Senior Advocate Ajay Kumar with Advocate Sumit Sood (for Respondent No.1); Advocate Ajay Chauhan (for Respondents No. 5 to 7) and Advocate General Ashok Sharma with M/s Ranjan Sharma, AAG Ashwani Sharma, AAG Ritta Goswami and AAG Nand Lal Thakur (for Respondents No. 8 & 9)
Click Here To Download Judgment