SALEEM BHAI AND ORS.versusSTATE OF MAHARASHTRA AND ORS.

                       SALEEM BHAI AND ORS.                                       A
                                       v.
               STATE OF MAHARASHTRA AND ORS.

                           DECEMBER 17, 2002

 [SYED SHAH MOHAMMED QUADRI AND ARIJIT PASA YAT, JJ.]                             B


      Code of Civil Procedure, 1908:

       Or. 7, r. Ir-Rejection of plaint-Plaintiffs filing suits for declaration
that certain decrees and orders passed by courts are illegal, and are null and    C
void-Defendants filing application for rejection of the plaint contending
that it does not indicate any cause of action and is barred by res judicata-
Tria1 court directing defendants to file written statement-Order affirmed by
High Court-Held, the relevant facts to be looked into for deciding an
application under Order 7, r.11 are the averments in the plaint-Trial court       D
can exercise the power under Order 7,r.11 at any stage of the suit, before
registering the plaint or after issuing summons to defendant or at any time
before conclusion of trial-For purpose of deciding an application under
clauses (a) and (d) of r.11 of Order 7, the averments in the plaint are germane
and pleas taken in written statement would be wholly irrelevant at that
stage-:--Therefore, direction to file written statement without deciding          E
application under Order 7, r.11 would be procedural irregularity touching
the exercise ofjurisdiction by trial court-Order, therefore, suffers from non-
exercising ofjurisdiction vested in court as well as procedural irregularity--
Order set aside-Matter remitted to trial court for deciding application
under Oi:der 7, r.11 on the basis of averments made in the plaint.                F
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8518 of2002.

     From the Judgment and Order dated 7.5.2002 of the Madhya Pradesh
High Court in CR No. 256/2002.

                                    WITH                                          G

      Civil Appeal No. 8519 of 2002.

     T.R. Andhyarujina, R.F. Nariman, Kailash Vasdev, K.K. Venugopal, S.V.
Deshpande, G.D. Sule, Ms. Anuradha Rastogi, Murari Lal Pathak, Manish H
                                   491
    492                     SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.

A Pitale, Chander Shekhar Ashri, Rashid Haque, Chandra Shekhar Ashri, Arun
    Agarwal, Shakil Nawaz, Kuldip Singh, Pavan Kumar, K.S. Rana, S.S.Shinde,
    V.N. Raghupathy, W.A. Nomani, B.S. Banthia for S.K. Agnihotri for the
    appearing parties.

          The following Order of the Court was delivered :
B
          Leave is granted.

         These appeals arise from the common order of the High Court of
    Madhya Pradesh [Indore Bench] in Civil Revision Petition Nos. 256 of2002
    and 257 of 2002 dated 7th May, 2002.
c
          These cases have a chequered history but in the view we have taken,
    we do not consider it necessary to refer to the facts in any detail. Suffice it
    to say that Respondent No. 7 in the appeal arising out of S.L.P. (C) No. 13234
    of2002 and the sole respondent in the appeal arising out ofS.L.P. (C) 14577
    of 2002 filed suits in February, 2002, out of which these appeals arise. The
D   eighth defendant in the suits is the appellant in these two appeals. The said
    respondents-plaintiffs in the suits claimed, inter alia, the following relief:

            "(2). That it be declared that the Judgement and Decree passed by the
            Ill Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit No.
            147 of1967, Judgement and Decree passed by IV Additional District
E
            Judge, Nagpur in regular Civil Appeal No. 16of1987, and approving
            the same in the Judgement and Decree passed by the Hon'ble Bombay
            High Court, Bench at Nagpur in Second Appeal No. 132 of 1992, and
            while maintaining this Judgement and Decree, Judgement and order
            passed by the Hon'ble Supreme Court in Special Leave Petition (Civil)
F           No. 25004/96 and in Review Petition No. I075/97 and order passed in
            various Revenue case No. 8/1996-97, are illegal, not in existence, null
            and void and are not withiA the jurisdiction and therefore are not
            binding on the plaintiff."

           The appellant filed an application under Order VII Rule 11 of the Code
G   of Civil Procedure, 1908 (for short, 'the C.P.C.') in the suits praying the court
    to dismiss the suits on the ground stated therein. Before us, it is stated that
    the plaint is liable to be rejected under clauses (a) and (d) of Rule 11 of Order
    VII C.P.C. While so, the said respondenis also.filed an application under Order
    VIII Rule I0 C.P.C. to pronounce judgement in the suits as the appellant did
H   not file his written statement. There was also an application by the appellant
                               SALEEM v. ST ATE                                 493
under Section 151 C.P.C. praying the court to deci<!e first the application A
under Order VII Rule 11 C.P.C. By order dated 8th December, 2001, the learned
Trial Judge dismissed the application under Order VIII Rule I 0 as well as the
application filed under Section 151 C.P.C. Insofar as the application under
Order VII Rule 11 C.P.C. is concerned, the learned Judge directed the appellant
to file his written statement. Aggrieved thereby, the appellant filed afore-
mentioned revision petitions before the High Court of Madhya Pradesh [Indore B
Bench]. On May 7, 2002, the High Court, while confirming the order of the
learned Trial Judge, reiterated the direction given by the learned Trial Judge
that the appellant should file his written statement and observed that the trial
court shall frame issues of law and facts arising out of pleadings and that the
trial court shou Id record its finding on the preliminary issue in accordance C
with law before proceeding to try the suit on facts. It is against this order of
the High Court that the present appeals have been preferred.

       Mr. T.R. Andhyarujina, learned senior counsel appearing for the appellant
in the appeal arising out ofS.L.P. (C) No. 13234 of2002 and Mr. R.F. Nariman,
learned senior counsel appearing for the appellant in the appeal arising out            D
ofS.L.P. (C) No. 14577 of2002 have contended that having regard to the very
nature of the relief claimed by the plaintiffs, the plaints are liable to be rejected
under Order VII Rule 11 C.P.C. and that the court ought to have considered
the said application on merits instead of giving direction to file written
statement which would amount to not exercising the jurisdiction vested in the           E
court. It is further contended that the High Court also did not appreciate that
the plaints do not show any cause of action and that the plaint ought to have
been rejected as the suit is barred by the principles of the res judicata and
/is pendense.

       Mr. K.K. Venugopal, learned senior counsel appearing for the                     F
respondents, on the other hand, drew our attention to various orders passed
 in earlier proceedings to show that the subject-matter of the property, items
51 and 52 of the r~linquish~ent deed were not the suit properties in the earlier
judgements, jricluding the order passed by this Court and, therefore, neither
the principle' of res judicat~ nor the _principle of /is pendense is attracted.
                                                                                        G
      The short common question tbat arises for consideration in these appeals
is, whether an application under Order VII Rule 11 C.P.C. ought to be decided
on the allegations in the plaint and filing of the written statement by the
constesting defendant is irrelevant and unnecessary.

        Order VII Rule 11 C.P.C. reads as under:                                        H
    494                    SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.

A           "11. Rejection of plaint.-The plaint shall be rejected in the following
            cases:-

            (<!) Where it does not disclose a cause of action;

            (b) Where the relief claimed is undervalued, and the plaintiff, on being
B           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 by the plaint is written
            upon paper insufficiently stamped, and the plaintiff, on being required
            by the Court to supply the requisite stamp-paper within a time to be
C           fixed by the Court, failed 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;

D           (f) Where the plaintiff fails to comply with the provisions of rule 9;

            Provided that the time fixed by the Court for the correction of the
            valuation or supplying of the requisite stamp-paper shall not be
            extended unless the Court, for reasons to be recorded, is satisfied that
            the plaintiff was prevented by any cause of an exceptional nature for
E           correcting the valuation or supplying the requisite stamp-paper, as
            the case may be, within the time fixed by the Court and that refusal
            to extend such time would cause great injustice to the plaintiff."

         A perusal of Order VII Rule 11 C.P.C. makes it clear that the relevant
  facts which need to be looked into for deciding an application thereunder are
F the averrnents in the plaint. The trial court can exercise the power under Order
  VII Rule 11 C.P.C. at any stage of the suit-before registering the plaint or
  after issuing summons to the defendant at any time before the conclusion of
  the trial. For the purposes of deciding an application under clauses (a) and
  (d) of Rule 11 of Order VII C.P.C. the averrnents in the plaint are germane; the
G pleas taken by the defendant in the written statement would be wholly
  irrelevant at that stage, therefore, a direction to file the written statement
  without deciding the application under Order VII Rule 11 C.P.C. cannot but
  be procedural irregularity touching the exercise of jurisdiction by the trial
  court. The order, therefore, suffers from non-exercising of the jurisdiction
  vested in the court as well as procedural irregularity. The High Court, however,
H did not advert to these aspects.
                             SALEEM v. ST ATE                            495
      We are, therefore, of the view that for the afore-mentioned reasons, the A
common order under challenge is liable to be set aside and we, accordingly,
do so. We remit the cases to the trial court for deciding the application under
Order VII Rule 11 C.P.C. on the basis of the averments in the plaint, after
affording an opportunity of being heard to the parties in accordance with law.

      The civil appeals are, accordingly, allowed. There shall be no order as   B
'fo costs.

RP.                                                        Appeals allowed.