THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
CIVIL REVISION PETITION No. 2958 of 2022
ORDER:
This Civil Revision Petition, under Article 227 of the Constitution of India, is filed by the petitioner/defendant No.3 challenging the docket order dated 12.10.2022, passed by the learned I Additional Junior Civil Judge, Sangareddy, in O.S.No.983 of 2021.
The learned counsel for the petitioner has stated that the respondent No.1/plaintiff has filed the suit i.e., O.S.No.983 of 2021 seeking declaration of title, recovery of possession and consequential injunction. That after receipt of the summons in the suit, the petitioner/defendant No.3 has filed an I.A under Order VII Rule 11 r/w Section 151 C.P.C. seeking to reject the plaint. The said I.A was filed on 19.01.2022 and the respondent No.1/plaintiff has filed the counter in the said I.A in the month of September, 2022. However, the trial Court, without adjudicating the I.A., has passed the impugned docket order in the suit forfeiting the right of the petitioner/defendant No.3 to file 2 written statement. The learned counsel has further stated that the trial Court has grossly erred in passing the impugned docket order, which is not only contrary to the provisions of the C.P.C but also the ratio laid down by the Hon'ble Supreme Court in Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust1. It is further stated that pending adjudication of the I.A. filed by the petitioner/respondent No.3 under Order VII Rule 11 r/w Section 151 C.P.C, the trial Court ought not to have forfeited the right of the petitioner/defendant No.3 to file written statement, and therefore, prayed this Court to set aside the impugned order and direct the trial Court to dispose of the I.A. at the earliest.
Per contra, the learned counsel for the respondent No.1/plaintiff has vehemently opposed the very maintainability of the Civil Revision Petition and stated that the trial Court vide order dated 21.09.2022 has directed the petitioner/defendant No.3 to file its written statement and posted the matter to 12.10.2022. That in spite of granting several opportunities, the petitioner/defendant No.3 has not filed the written statement. 1 (2012) 8 SCC 706 3 Therefore, the trial Court, left with no other option, has passed the impugned docket order forfeiting the right of the petitioner/defendant No.3 to file written statement. It is further stated that the petitioner/defendant No.3, without filing any application before the trial Court seeking to set aside the impugned docket order, has straightaway approached this Court, and therefore, prayed this Court to dismiss the present Civil Revision Petition.
A perusal of the record discloses that the trial Court vide order dated 21.09.2022 has directed the petitioner/defendant No.3 to file his written statement and posted the matter on 12.10.2022. The present I.A filed by the petitioner/defendant No.3 under Order VII Rule 11 read with Section 151 C.P.C. was numbered by the trial Court and available on record by the date of passing of the impugned order. Moreover, the respondent No.1/plaintiff has filed her counter in the I.A on 21.09.2022. But, the trial Court, without adjudicating the I.A., for the reasons best known to it, has passed the impugned docket order. 4
The Hon'ble Supreme Court, in similar circumstances, in Saleem Bhai v. State of Maharashtra2, has held as under:
"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 the averments 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 averments in the plaint are germane; the 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, did not advert to these aspects."
Having regard to the judgment referred to above and having regard to the facts and circumstances of the case, I am of the considered opinion that the impugned order is liable to be set aside.
Accordingly, the impugned docket order is set aside and the Civil Revision Petition is allowed with costs of Rs.1,000/- 2
(2003) 1 SCC 557 5 payable by the petitioner to the Telangana State Legal Services Authority, within a period of four weeks from the date of receipt of a copy of this order. The trial Court is directed to dispose of the I.A filed by the petitioner/defendant No.3 under Order VII Rule 11 read with Section 151 C.P.C. on or before 15.02.2023. In case the petitioner/defendant No.3 does not cooperate for disposal of the said I.A., the trial Court can go ahead and pass appropriate orders on merits.
Pending miscellaneous petitions, if any, shall also stand dismissed. No order as to costs.
______________________ A.ABHISHEK REDDY, J Date: 06.01.2023 Note: Issue CC in two days B/o va