Case: Bhau Ram Vs. Janak Singh

dismissed the suit filed by Reshmoo Devi for possession as barred by limitation. The appellant herein, who was substituted as L.R., filed second appeal being R.S.A. No.113 of 1988 before the High Court which was allowed by the High Court on 25.05.2000. (h) Against that order, Kamla Devi & Ors. filed special leave petition before this Court which was dismissed. (i) Involving the same issue, Attar Singh filed a Suit being Suit No. 424/1 of 99/97 in the Court of sub-Judge-IV, Shimla which was dismissed for default on 23.02.2001 but the same was restored vide order dated 14.08.2002. He again filed a Civil Suit No. 10/1 of 2004 before the Civil Judge (Jr. Division-II) Rohru, Shimla for possession of the suit land belonging to Reshmoo Devi. During the course of proceedings, the appellant herein filed an application under Order VII Rule 11 read with Section 151 of CPC for rejection of the plaint on certain grounds. By order dated 17.11.2004, the Civil Judge allowed the application and dismissed the suit filed by Attar Singh. (j) Against the said order, Attar Singh filed F.A. No. 90-S/13 of 2005 before the District Judge (Forest), Shimla. After the death of Attar Singh, Kamla Devi was brought on record as his legal representative. Vide order dated 31.07.2009, the District Judge (Forest) allowed the appeal. Challenging the said order, the appellant herein and his sister, Kular Mani, filed R.S.A. No. 501 of 2009 before the High Court. By the impugned order dated 20.09.2010, the High Court dismissed the appeal. Against the said order, the appellant herein filed an appeal by way of special leave petition before this Court. 4) Heard Ms. Radhika Gautam, learned counsel for the appellant and Mr. Sudhir Chandra, learned senior counsel for respondent No.1 and Mr. T. V. Ratnam, learned counsel for respondent No.2. 5) The only point for consideration in this appeal is whether the High Court is justified in confirming the decision of the lower appellate Court and remitting the matter to trial Court for fresh consideration of all the issues. 6) In order to ascertain an answer for the above question, we have to consider whether the application under Order VII Rule 11 CPC filed by the defendant can be decided merely on the basis of the plaint and whether the other materials filed by the defendant in support of the application can also be looked into. The trial Court allowed the application of the appellant/defendant No.1 filed under Order VII Rule 11 CPC on the ground that the plaint was barred under the provisions of Order IX Rules 8 & 9 CPC and Order XXIII Rule 1 (3) & 4 (b) of CPC. The said order of the trial Court was set aside by the first appellate Court on the ground that the trial Court had taken the pleas from the written statement of the defendant which is not permissible under Order VII Rule 11 CPC and the High Court in the second appeal confirmed the judgment of the first appellate Court. 7) It is relevant to point out the findings of the trial Court particularly with reference to the Suit No. 424/1 of 99/97 which was dismissed for default had been restored by the trial Court even at the time of filing of the application by the defendant under Order VII Rule 11 CPC and it is also brought to our notice that the said proceedings are going on. In view of the same, the provisions of Order IX Rules 8 and 9 CPC are not applicable to the said suit. Even otherwise, the relief sought in the suit (which was earlier dismissed for default) and in the present suit are with regard to different properties. For the same reasons, the provisions of Order XXIII Rule 1 (3) & 4 (b) of CPC are not applicable. 8) 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. [vide C. Natrajan vs. Ashim Bai and Another, (2007) 14 SCC 183 , Ram Prakash Gupta vs. Rajiv Kumar Gupta and Others, (2007) 10 SCC 59 , Hardesh Ores (P) Ltd. vs. Hede and Company, (2007) 5 SCC 614 , Mayar (H.K.) Ltd. and Others vs. Owners & Parties, Vessel M.V. Fortune Express and others, (2006) 3 SCC 100 , Sopan Sukhdeo Sable and Others vs. Assistant Charity Commissioner and Others, (2004) 3 SCC 137 , Saleem Bhai and Others vs. State of Maharashtra and Others, (2003) 1 SCC 557 ]. The above view has been once again reiterated in the recent decision of this Court in The Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman vs. M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, 2012 (6) JT 149. 9) As rightly pointed out by learned counsel for the respondents, the questions of law, as raised in the second appeal, before the High Court are no longer needed to be decided in view of the settled law that only the averments in the plaint can be looked into while deciding the application under Order VII Rule 11. This aspect has been rightly dealt with by the High Court. 10) In the light of the above discussion and in view of the settled legal position, as mentioned above, we are of the view that the High Court is fully justified in confirming the decision of the appellate Court remitting the matter to the trial Court for consideration of all the issues. In view of the fact that the suit is pending from 2002, we direct the trial Court to decide the suit in its entirety considering all the issues, after affording adequate opportunity to both the parties, and dispose of the same within a period of six months from the date of receipt of copy of this judgment.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9) As rightly pointed out by learned counsel for the respondents, the questions of law, as raised in the second appeal, before the High Court are no longer needed to be decided in view of the settled law that only the averments in the plaint can be looked into while deciding the application under Order VII Rule 11. This aspect has been rightly dealt with by the High Courtare of the view that the High Court is fully justified in confirming the decision of the appellate Court remitting the matter to the trial Court for consideration of all the issues. In view of the fact that the suit is pending from 2002, we direct the trial Court to decide the suit in its entirety considering all the issues, after affording adequate opportunity to both the parties, and dispose of the same within a period of six months from the date of receipt of copy of this judgmentAs rightly pointed out by learned counsel for the respondents, the questions of law, as raised in the second appeal, before the High Court are no longer needed to be decided in view of the settled law that only the averments in the plaint can be looked into while deciding the application under Order VII Rule 11. This aspect has been rightly dealt with by the High Courtare of the view that the High Court is fully justified in confirming the decision of the appellate Court remitting the matter to the trial Court for consideration of all the issues. In view of the fact that the suit is pending from 2002, we direct the trial Court to decide the suit in its entirety considering all the issues, after affording adequate opportunity to both the parties, and dispose of the same within a period of six months from the date of receipt of copy of this judgment