1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 613 OF 2009 with CIVIL APPLICATION NO. 1863 OF 2009 The Brihanmaharashtra Sugar Syndicate Ltd. ....Appellant Versus The Oriental Insurance Co. Ltd. & Anr. ....Respondents Mr. Dushyant Pagare i/b. Mr. Rajesh S. Datar for the Appellant. Mr. A. S. Vidyarthi for the Respondent No.1. Mrs. Vaishali K. Bhilare for the Respondent No.2. CORAM : P. B. MAJMUDAR & R. V. MORE, JJ. DATED : 8th SEPTEMBER, 2009. ORAL JUDGMENT (Per P. B. Majmudar, J) : Admit. 2. Mr. Vidyarthi, learned Advocate, waives service for the Respondent No.1 and Mrs. Bhilare, learned Advocate, waives service for the Respondent No.2. With the consent of the learned Advocates, the First Appeal is taken for final hearing today itself. 2 3. The Appellant is the Original Plaintiff and the Respondent Nos.1 & 2 are the Original Defendant Nos.1 & 2 in the Special Civil Suit No.270 of 2008. The said suit was filed before the learned Civil Judge Senior Division Pune, for getting decree for damages, as according to the Appellant, his vehicle was subjected to damage because of the accident in question. It is the case of the Appellant that the vehicle in question was insured with the Respondent No.1 i.e. Insurance Company and the Respondent No.2 is the dealer of the said vehicle and in view of the loss sustained by the Appellant as it is the case of total loss, the Respondents should jointly pay the damages to the Appellant in quantum of the value of the car in question. In the aforesaid proceedings, the Respondent No.1-Insurance Company filed an Application at Exhibit “11” which application was filed under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 on the ground that no cause of action has arisen against the Respondent No.1 for filing the suit as the vehicle involved in the suit is not insured with the Respondent No.1 and in that view of the matter the plaint is required to be rejected. The said application was opposed by the present Appellant/Original Plaintiff on various grounds. The learned Trial Judge by the impugned order dated 9th February, 2009 allowed the said application at Exhibit “11” and the plaint was rejected against the Respondent No.1. The learned Trial Judge ordered that the suit to proceed against the Respondent No.2 only. It is the aforesaid order which is impugned at the instance of the Appellant/Original Plaintiff. 3 4. Mr. Dushyant Pagare, learned Counsel for the Appellant, submitted that the learned Trial Judge has gravely erred in passing the impugned order at the stage even when the issues are not framed. The learned Counsel for the Appellant, further submitted that the learned Trial Judge should not have passed the impugned order without recording the evidence and without giving an opportunity to the Appellant to lead appropriate evidence before the Trial Court and it is further submitted the Application under Order VII Rule 11 of the Code of Civil Procedure, 1908 was premature as the said point is required to be decided in the suit itself and finding should have been recorded after considering the evidence on record. 5. The learned Counsel for the Respondent No.1, on the other hand submitted that since the vehicle is not insured with the Respondent No.1, the suit was naturally not maintainable against the Respondent No.1. The learned Counsel further submitted that in case if this court comes to the conclusion that said question is required to be decided in the suit itself, then the Respondent No.1 be permitted to file written statement. The learned Counsel for the Respondent No.2 submitted that Respondent No.2 has nothing to say in this matter as the suit is allowed to be proceeded against Respondent No.2 who is the Original Defendant No.2 in the suit. 6. We have heard the learned Advocates at length. We have also gone through the impugned order and other documents forming part of the proceedings. So far as Order VII Rule 11(a) of the C.P.C.1908 is concerned, 4 the Court is required to consider the averments made in the plaint. In the instant case, even though no issues are framed and even though no written statement is filed by the Respondent No.1, the Trial Court has considered the cover note and some other documents for coming to the conclusion that the vehicle was not insured with the Respondent No.1- Insurance Company. It is required to be noted that under Order VII Rule 11(a), the Court is required to find out whether any cause of action is disclosed. In the instant case, the Appellant has already disclosed the cause of action in the plaint. It is not the case that the cause of action is not disclosed in the plaint, at all. The defence of the Respondents therefore, cannot be considered at such a stage, as at this stage the Court is only required to read the plaint and find out whether the cause of action is disclosed or not. The defence of the other side is required to be considered only at the time when the trial begins. 7. In our view, resort to provisions of Order VII Rule 11(a) was not justified at the hand of the learned Trial Judge, as the learned Trial Judge on the basis of the Application of the Respondent No.1 has considered the cover note and some other documentary evidence which is against the scheme of Order VII Rule 11(a) of the Code of Civil Procedure, 1908. In a given case, if the cause of action is not disclosed in the plaint, the Court can reject the plaint under Order VII Rule 11(a) of the Code of Civil Procedure, 1908. As stated earlier, the cause of action is disclosed in the plaint, then at that stage the Court has no jurisdiction to pass the order which has been passed in the present case. The Court is not required to consider the defence of other side 5 while deciding an application under Order VII Rule 11(a). The Trial Court has therefore, committed an error of law in considering the defence of the Respondent No.1 and other documents produced by the Respondent No.1 for coming to the conclusion that no cause of action is disclosed in the plaint. The Court was required to read the plaint and beyond that it was not permissible to go through any other document at such a stage. The learned Trial Judge has considered the documentary evidence given by Respondent No.1 on merits which is not permissible unless appropriate issues are framed and unless parties are allowed to lead evidence in this behalf. 8. In view of what has been stated above, the impugned order is not sustainable and is accordingly quashed and set-aside. The matter is remanded to the Trial Court and the learned Trial Judge shall now decide the suit on its own merits against both the Respondents/Original Defendants. The Respondent No.1 may file its written statement on or before 1st December, 2009. The learned Trial Judge shall thereafter frame appropriate issues and then decide the question as to whether the vehicle in question was insured with the Respondent No.1 as per the evidence on record. We may clarify that we have not expressed any opinion in this behalf. It is for the learned Trial Judge to decide the said question after the issues are framed and after giving an opportunity to both the sides to lead evidence in this behalf. On the basis of the evidence, it is for the Trial Court to decide whether the vehicle in question was insured with the Respondent No.1 or not. The said question is accordingly kept open and is to be decided at the time of the trial. The records 6 and proceedings to be sent to the Trial Court forthwith. The Appeal is accordingly allowed to the aforesaid extent. There shall be no order as to cost. 9. It is needless to say that the burden of proof that the vehicle was insured with the Respondent No.1 primarily lies on the Appellant and the Appellant is required to prove the said fact. The Respondent No.1 will be at liberty to lead evidence to prove that the vehicle was not insured. In short the said question will be decided by the learned Trial Judge as per the evidence and on the basis of original documents produced by the Respondent No.1. 10. In view of the disposal of the First Appeal, the Civil Application No.1863 of 2009 will not survive and therefore, the same is disposed of. Sd/- Sd/- (R. V. MORE, J.) (P. B. MAJMUDAR, J.)