IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1271 of 2008 1. East India Pharmaceutical Works Limited, having its office at 6th Little Russel Street, Kolkata 700071 through its Managing Director. 2. Depankar Dutta Gupta, Managing Director, East India Pharmaceutical Works Limited, 6th Little Russel Street, Kolkata 700071. 3. Shekhar Roy, Divisional Sales Manager, East India Pharmaceutical Works Limited, 6th Little Russel Street, Kolkata 700071. …………………… Defendants/Petitioners Versus 1. Amitava Chatterjee, son of Sri P.B. Chatterjee, resident of Rajendra Path, P.S.- Gandhi Maidan, town and district-Patna. ………………….. Plaintiff/Opposite Party 2. P.K. Roy, Assistant Law & Administrative Manager (Retired), 6th Little Russel Street, Kolkata 700071 ……………….. Defendant/Opposite Party ----------- 3 9/9/2009 Heard counsel for the petitioners. Prayer in this application is to set aside the order dated 13.5.2008 passed in Title Suit No. 459 of 2003 rejecting the prayer of the defendants-petitioners under Order-VII, rule 11(a) and (d) of the Code of Civil Procedure. Counsel for the petitioners with reference to the averments made in this Civil Revision Application would submit that when Title Suit No. 459 of 2003 was filed by the plaintiffs- opposite parties for the following reliefs:- “(i)On adjudication of the facts stated above it be declared that the so-called resignation dated 17th of May 2000 purported to have been given by the plaintiff to the Defendants is illegal, unlawful, without jurisdiction having been obtained under coercion, duress and pressure and hence void in the eye of law. (ii)That alternatively this be declared that the plaintiff has to be treated as superannuated on 17.5.2000 and not to be treated as have resigned from the job, and hence the plaintiff is entitled for pension and all other benefits for which a superannuated employee in the similar facts and circumstances would have been 2 entitled, with a direction to the defendant to pay the entire amount for which the plaintiff may be found to be entitled either on grant of relief nos. (i) or (ii) as the case may be and on their failure the plaintiff would be entitled to recover the entire amount through the process of the court. (iii)A decree for compensation and damages be passed in favour of the plaintiff and against the defendants by holding that the plaintiff has been harassed by the defendants and thereby the plaintiff has suffered loss and the amount of damages be determined by the court and on the said determined amount a money decree be passed in favour of the plaintiff and against the defendants. (iv)That cost of the suit be awarded in favour of the plaintiff and against the defendants. (v)Any other relief or reliefs for which the plaintiff is found to be entitled or as your honour may deem fit and proper be awarded.” On or after 5.11.2003, the defendants-petitioners having entered appearance at the very instance had filed an application on 11.1.2005 for rejecting the plaint under the provisions of Order VII, rule 11 (a) (d) of the Code of Civil Procedure on the ground that the suit was barred under the law of limitation as also under the provisions of Bihar Shops and Establishment Act but the court below has illegally refused to exercise its power. Counsel for the petitioner in this regard has drawn attention towards the findings in the impugned order and would submit that in only one paragraph of the order, the court below infact had refused to give any findings on the plea of the suit being not maintainable on account of its barred by law as raised in the petition filed on 25.2.2005. 3 In the opinion of this Court, counsel seems to be correct. This Court would find from the petition dated of defendant petitioner dated 25.2.2005 (Annexure-2) that rejection of plaint was sought on a number of grounds including those mentioned in paragraph no. 2 thereof which reads as follows:- “That from a plain reading of the plaint itself it appears that the plaint does not contain any cause of action for the present suit his alleged claims in the suit are totally vague and nebulous and speculative in nature and at the same time the suit is barred under the law of limitation as well as under the provisions of and Bihar Shops and Establishment Act and hence the plaint of the present suit is fit to be rejected under Order VII, rule 11(a) & (d) of the Code of Civil Procedure.” The court below however after noting down submissions of the parties in first five paragraphs of the impugned order has recorded its finding in the following manner:- “Having considered the facts and circumstances of the case as well as considering the materials available on the record the matter in issue raised on part of the defendants is not being considered at this stage. As for proper adjudication of the matter in issue it is expedient to adjudicate at the appropriate period and the same will be adjudicated alongwith framing and settlement of other issues of matter in controversy to be framed and settled between the parties. Petitioner-defendants are at liberty to agitate the matter in question at the final hearing of the suit after adducing evidence of both the parties. Hence the abovenoted petition is disposed of. Put up the record on 23.6.08 for further hearing.” In the opinion of this Court, this cannot be the approach of a court below called upon to decide the question of rejection of a plaint in terms of Order VII rule 11. It is quite 4 elementary that if a plaint cannot be entertained on any of the five eventualities enumerated in Sub-clause(a) to (e) of Rule 11 of Order VII C.P.C. there would be no need to either frame a issue a proceed to commence hearing of the suit. Order VII Rule 11 envisaging rejection of plaint on specified ground is infact a process of screening of frivolous cases and every court has both a right and a duly to heed out such frivolous litigation which on plain reading of plaint alone is not maintainable or sustainable. Thus whenever an application is filed by the defendants for rejection of plaint under the provision of Order VII, rule 11 of the C.P.C. the Court has to record clear finding as to whether such plaint is fit to be rejected. In the present case one of the plea raised by the defendants-petitioners was that the suit was barred by limitation and another plea was that the suit was barred under the provisions of Bihar Shops and Establishment Act. While this Court would not like to put its final word as with regard to the aforementioned plea of the defendants-petitioners, inasmuch as, such issue of limitation can also be gone into after framing of issues in terms of Order XIV Rule 2 by way of preliminary issue as was held by the Apex Court in the Case of “Lufthansa German Airlines Vs. Vij Sales Corporation” reported in 1998 (8) SCC 623, the court below had to atleast make an endeavour to find out by reading the plaint only as to whether suit was clearly barred by limitation. The court below therefore could not have shirked its responsibility by not 5 deciding the said question and leaving the question open to be decided at stage of hearing the suit as has been done by the impugned order and is also clear from the extracted portion of such impugned order. The plea that the suit being barred under the provisions of Bihar Shops and Establishment Act, in fact, has also to be examined if there is any pleadings in the plaint itself and that the petitioner is covered by the expression “Shop” or “Establishment” under the aforesaid Act and also if there is any specific bar under the said Act for not maintaining the suit before the Civil Court. All these questions, therefore, would require a detailed consideration which as noted above has not been made by the court below in the impugned order. Considering that this Court has only found that the court below has not exercised its power properly and in fact has committed jurisdictional error while disposing of the application filed by the defendants-petitioners under Order VII rule 11 of the C.P.C. in a mechanical and perfunctory manner, this Court would set aside the impugned order and remit the matter back for reconsideration on the petition of defendant petitioner dated 25.2.2005. The court below is directed to pass a fresh order after hearing the parties including the plaintiffs-opposite parties strictly in accordance with law. Let it be however made clear that this court has expressed no opinion on the merits of the claim of the defendant 6 petitioner that the plaint is fit to be rejected and infact this very aspect has to be gone into by the court below by only looking into the averments made in the plaint and applying the provisions of Order VII Rule 11 (a) and (d) of the Code of Civil Procedure. With the aforementioned observations/directions this application is disposed of. Abhay Kumar (Mihir Kumar Jha, J.)