HIGH COURT OF CHHATTISGARH AT BJLASPUR Si'nale Bench : Hon'bie Shri DJJip Raosaheb Deshmukh. J. Civll Revisaon No.103 of 2007 AppSacant/Defendant versys Non-ApDilcants 2. 3. 4. 5. Cent Bank through Branch Manager, Surya Bhawan, Near Laxmi Talkies, Juna BISaspur, Bilaspur (C.G.) Laxmandas, S/o Shri Gyandas Manikpuri, aged about 50 years, R/o MiG-il/54 M.P. Nagar, Korba, Distt. Korba Aawaashin Grih Nirman Samiti through its President, Ameri Road, Tah. Takhatput, Dlstt. Bilaspur Ayub Rabart Brown, S/o W.J. Srown, Vice President Aawaashin Grih Nirman Samiti, R/o Mangia, Biiaspur Surendra Nikhil, S/o Shri Sher Singh Nikhil, R/o Manghwapara, Jarhabhata, Bilaspur State of Chhattlsgarh, through CoiSector, Biiaspur Revision Petition under Section 115 of the Code of Civil Procedure. 1908 Present : Shri Anand Shukia, counsej for the appiicant. ORDER (Passed on 3rd September, 2007) The applicant is aggrieved by an order dated 12-06-2007 passed by Additionai District Judge, Biiaspur in Civil Suit No.8-A/2007, whereby the appiication under Order 7 Ruie 11 of the Code of Civil Procedure (henceforth ''the Code') filed by the appiicant/defendant was dismissed on the ground that the defendant shouid fiie written statement raising a!l -2- such objections. No order on merit was passed on the appilcation under Order 7 Ruie 1 1 of the Code. (§) in Saleem Bhas and others vs. State of Maharashtra ancf others, A!R 2003 SC 759, the Apex Court has held as under: "9. A perusal of O. VII, R. 11, C.P.C. makes it ciear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the piaint. The triai Court can exercise the power under O. VII, R. 11, C.P.C. at any stage of the suit before registering the pialnt or after issuing summons to the defendant at any time before the conclusion of the triai. For the purposes of deciding an appiication under Cls. (a) and (d) of R. 11 of O. V!l, C.P.C., the averments in the plaint are germane; the pleas taken by the defendant in the written statement wouid be wholly irreievant at that stage, therefore, a direction to file the written statement without deciding the applicatlon under 0.7 R. 11, C.P.C. cannot but be procedurai irregularity touching the exercise ofjurisdiction by the trial Court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the Court as weil as procedural irregularity. The High Court, however, did not advert to ihese aspects." "10. We are, therefore, of the view that for the aforementioned reasons, the common order under challenge is iiabie to be set aside and we, accordingiy, do so. We remit the cases to the tria! Gourt for decidlng the appiication under O. 7 R. 11, C.P.C. on the basis of the averments sn -3 the piaint, after affording an opportunity of being heard to the parties in accordance with law." (3) !n Sopan Sukhdeo Sable and others vs. Assistant Charity Commissioner and others, (2004) 3 SCC 137, the Apex Court has obser/ed as under: "Order 7 Rule 11 lays down an independent remedy made available to the defendant to challenge the maintainabiiity of the suit itseif, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be ralsed the triai Court can exercise the power at any stage of the suit, that is, before registering the plaint or after issuing summons to the defendant at any time before the conciusion of the triai - and also does not say in express terms about the fiiing of a written statement: for the purposes of deciding an appiication under clauses (a) and (d) of Order 7 Ruie 11 CPC, the averments in the plaint are germane: the pleas taken by the defendant in the written statement would be wholiy irrelevant at that stage. Instead, the word "shal!" is used, ciearly implying thereby that Order 7 Ruie 11 casts a duty on the court to perform its obiigations in rejecting the plaint when the same is hit by any of the infirmities provided in the four ciauses of Order 7 Rute 11, even without intervention of the defendant (emphasis supplied by me). !n any event, rejection of the plaint under Order 7 Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Order 7 Ruie13." ^ Gopal (4) !n Sajjan Sikaria and others vs. Shakuntala Devi Mishra and otfters, (2005)13 SCC 687, the Apex Court has in a simiiar situation observed as under: "3. We find that the directions for considering the question relating to Order 7 Rule 11 CR3 as preliminary issue is not correct as that would necessitate filing of a written statement. It is a settled position in law that while dealing with an application under Order 7 Rule 11 CPC, consideration of written statement is not a condition precedent and only averments in the plaint have to be considered. ..............." (5) in this view of the matter, the impugned order, whereby the application under Order 7 Rule 11 of the Code fiied by the applicant/defendant was rejected on the above ground, is per se contrary to iaw. This civil revision is, therefore, being disposed of at the stage of admission without notice to the non-applicants. The impugned order dated 12-06-2007, whereby the application under Order 7 Ruie 11 ofthe Codewas dismissed, is set aside. The learned Additiona! District Judge shail decide the application under Order 7 Ruie 1 1 of the Code on merit. ——-—— Sd/- \ DUip Raosaheb Deshmukh 1 Judge »• •^