Om Prakash Agarwal vs Lacchi Ram And 5 Others
2021 Latest Caselaw 4044 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgment Reserved On 17.02.2021
 
     		   Judgment Delivered on 19.3.2021
 

 
Court No. - 10
 
Case :- MATTERS UNDER ARTICLE 227 No. - 673 of 2021
 
Petitioner :- Om Prakash Agarwal
 
Respondent :- Lacchi Ram And 5 Others
 
Counsel for Petitioner :- Anupam Laloriya,Pankaj Saksena
 

 
Hon'ble Prakash Padia,J.

1. Heard Sri Pankaj Saxena, counsel for the petitioner.

2. The petitioner has preferred the present petition inter-alia with the prayer to set aside the order dated 05.03.2020 passed by Civil Judge (Senior Division), Jhansi in Original Suit No. 259 of 2016 (Lachchi Ram vs. Rajesh and others).

3. Facts in brief as contained in the present petition are that Original Suit No. 259 of 2016 was filed by one Lachchi Ram along-with Mukesh against Rajesh and 4 others including the present petitioner Om Prakash Agarwal in the Court of Civil Judge (Senior Division), Jhansi for permanent injunction and for declaration that the decree dated 26.05.1993 passed by Commissioner, Jhansi in Appeal No. 56 of 1993 (Ranpat Singh Parihar vs. State) be declared void inter-alia on the ground that he is the owner of ½ of the plot being plot nos. 2308, 2309, 2310, 2311 and 2314 total 5 plots of area 1.71 decimal, situated in Mohal Nandu Khata, Khewat No. 11, Mauja-Jhansi, Pargana and District-Jhansi. Ranpat Singh has got a decree in his favour from the Commissioner, Jhansi on 26.05.1993 on the basis of which he has sold the land in question to petitioner and respondent nos. 3 to 6 who are trying to dispossess the plaintiff.

4. An application was filed by the present petitioner as provided under Order VII Rule 11 read with section 151 of Code of Civil Procedure with the prayer to reject the plaint itself mainly on the ground that the plaintiff is not specified/identify the exact location of his ½ share and has not annexed map and the decree passed by Commissioner, Jhansi Division Jhansi dated 26.05.1993, copy of the objection filed by the petitioner as stated above is appended as Annexure-4 to the present petition. The aforesaid application was filed by the petitioner in the aforesaid suit on 01.04.2019. The aforesaid application was heard by the Civil Judge (Senior Division), Jhansi and rejected vide its judgment and order dated 05.03.2020. It is argued that application filed by the petitioner under Order VII Rule 11 read with section 151 of the Code of Civil Procedure is illegally and arbitrary rejected by the trial court. It is further argued that the order impugned is in complete violation of the settled principles of law.

5. Counsel for the petitioner relied upon the following judgments:-

1. AIR 2016 SC 3282 R.K. Roja vs. U.S. Rayudu and Another decided on 04.07.2016.

2. Virudhunagar Hindu Nadargal Dharma Paribalam Sabai & Ors. Versus Tuticorin Educational Society & Ors reported in (2019) 9 SCC page 538 decided on 03.10.2019.

3. Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra) (D) THR LRS & ORS reported in 2020 4 Supreme 160 decided on 09.07.2020.

4. Matter Under Article 227 No. 339 of 2021 (Indian Oil Corporation Ltd. vs. M/S J. Lal Filling Station And Another) decided on 29.01.2021.

6. Heard counsel for the petitioner and perused the record.

7. It appears from perusal of the record that in Original Suit No. 259 of 2016 filed by the plaintiff-respondent, an application was filed by the petitioner under Order VII Rule 11 read with Section 151 of C.P.C., to dismiss the aforesaid suit. From perusal of the order passed by the trial court it has been held by the court below that the plaint could only be rejected in case it is found that no cause of action is disclosed or suit is barred by limitation under Rule 11 (d). It is stated in the order impugned that the issue has already been framed and issue nos. 2 and 3 in respect of valuation and jurisdiction of the court has already been decided. It is further stated in the order impugned that the application filed by the present petitioner could only be decided after perusal of the evidence and as such the application filed by the present petitioner for dismissal of the plaint was rejected.

8. In the case of R.K. Roja (Supra), it was held by the Hon'ble Supreme Court that the application filed under Order VII Rule 11 of the Code of Civil Procedure can be filed at any stage. The only restriction is that consideration of application for rejection should not be made on the basis of allegations made by the defendant in his written statement or on the basis of the allegations in application for rejection of plaint, the Court has to consider only plaint as a whole and in case entire plaint comes under situations covered under Order VII Rule 11 (a) to (f) of Code of Civil Procedure, the same has to be rejected. It is further held that without disposing of an application filed under Order VII Rule 11 of the Code of Civil Procedure the court could not proceed with the trial. Relevant paragraphs of the aforesaid judgment namely paragraph nos. 5 and 6 are reproduced below:-

5. We are afraid that the stand taken by the High Court in the impugned order cannot be appreciated. An application under Order VII Rule 11 of the CPC can be filed at any stage, as held by this Court in Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others, (2004) 3 SCC 137... "The trial court can exercise the power 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. ...". The only restriction is that the consideration of the application for rejection should not be on the basis of the allegations made by the defendant in his written statement or on the basis of the allegations in the application for rejection of the plaint. The court has to consider only the plaint as a whole, and in case, the entire plaint comes under the situations covered by Order VII Rule 11 (a) to (f) of the CPC, the same has to be rejected.

6. Once an application is filed under Order VII Rule 11 of the CPC, the court has to dispose of the same before proceeding with the trial. There is no point or sense in proceeding with the trial of the case, in case the plaint (Election Petition in the present case) is only to be rejected at the threshold. Therefore, the defendant is entitled to file the application for rejection before filing his written statement. In case, the application is rejected, the defendant is entitled to file his written statement thereafter (See Saleem Bhai and 3 others v. State of Maharashtra and others, (2003) 1 SCC 557. But once an application for rejection is filed, the court has to dispose of the same before proceeding with the trial court. To quote relevant portion from paragraph-20 of Sopan Sukhdeo Sable case (supra):

"20. ... Rule 11 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word "shall" is used, clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. ..."

9. In the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai & Ors (Supra) it was held by the Hon'ble Supreme Court that whenever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. The relevant paragraphs of the aforesaid judgment namely paragraphs no. 11 to 14 is reproduced below:-

"11. Primarily the High Court, in our view, went wrong in overlooking the fact that there was already an appeal in C.M.A. No. 1 of 2018 filed before the Sub-Court at Tuticorin under Order XLI, Rule 1 (r) of the Code, at the instance of the fifth defendant in the suit (third respondent herein), as against the very same order of injunction and, therefore, there was no justification for invoking the supervisory jurisdiction under Article 227.

12. Secondly, the High Court ought to have seen that when a remedy of appeal under section 104 (1) (i) read with Order XLIII, Rule 1 (r) of the Code of Civil Procedure, 1908, was directly available, the respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu Vs. S. Chellappan & Ors., (2000) 7 scc 695, this Court held that "though no hurdle can be put against the exercise of the Constitutional powers of the High Court, it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a Constitutional remedy".

13. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before Civil Courts in terms of the provisions of Code of Civil procedure and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court. This is why, a 3 member Bench of this court, while overruling the decision in Surya Dev Rai vs. Ram Chander Rai, (2003) 6 scc 675, pointed out in Radhey Shyam Vs. Chhabi Nath, (2015) 5 scc 423 that "orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts.

14. Therefore wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself."

10. In so far as the case of Dahiben (Supra) is concerned in the aforesaid case suit filed by the plaintiff in the trial court was barred by limitation, the orders were passed and Hon'ble Apex Court stating therein that application filed under Order VII Rule 11 (d) of Code of Civil Procedure holding that the suit filed was barred by limitation. Since the suit was clearly barred by the limitation as per Article 59 of Limitation Act, 1963 it was liable to be dismissed. The relevant paragraph of the aforesaid judgment namely paragraph no. 15.8 is reproduced below:-

15.8 The delay of over 5 and ½ years after the alleged cause of action arose in 2009, shows that the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963. The suit was instituted on 15.12.2014, even though the alleged cause of action arose in 2009, when the last cheque was delivered to the plaintiffs.

The Plaintiffs have failed to discharge the onus of proof that the suit was filed within the period of limitation. The plaint is therefore, liable to be rejected under Order VII Rule 11 (d) of CPC.

11. In so far as the case of the Indian Oil Corporation Ltd. (Supra) is concerned, it appears from perusal of the aforesaid judgment that the suit filed by the plaintiff was barred by the provisions of sub-section (1) of Section 14 of the Specific Relief Act. The aforesaid section was duly taken into consideration by the Hon'ble Apex Court in the case of Indian Oil Corporation Ltd. vs. Amritsar Gas Service & others reported in (1991) 1 SCC page 533. In view of the same it was held by this Court that since the suit itself was barred as per the provisions of sub-section 1 of Section 14 of the Specific Relief Act, the necessary orders were passed by this Court. However in the aforesaid cases after the arguments were advance at great length by the counsel for the parties a prayer itself was made by the counsel for the plaintiff-respondent that the plaintiff-respondent be allowed for withdrawal of suit itself hence the ratio of the aforesaid judgment will not apply.

12. It is clear from perusal of the facts as narrated above that the none of the judgments will help the petitioner in so far as the present petition is concerned.

13. The supervisory jurisdiction of this Court over subordinate Courts is well settled, the scope of judicial reviews is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority. The power provided under Article 227 of the Constitution of India does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them.

14. In the case of Surya Dev Rai vs. Ram Chander Rai and Others (2003) 6 SCC 675, it was held by the Hon'ble Supreme Court in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby.

15. In the Case of Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, the Hon'ble Apex Court held as under:

"...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions."

16. Against the order impugned by which an application filed by the petitioner under Order VII Rule 11 of the Code of Civil Procedure was dismissed a remedy is available to the petitioner to approach the appellate/revisional forum. As per Section 96 of the CPC, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. Therefore, unless the order rejecting an application filed under Order 7 Rule 11 CPC is held to be a decree, an appeal will not lie under Section 96 of the CPC. Order XLIII Rule 1 of the CPC provides for appeals from orders. As per Order XLIII of the CPC, an appeal is not provided for as against an order allowing or dismissing an application filed under Order 7 Rule 11 of the Code of Civil Procedure. Section 2(2) of the CPC reads as follows:-

"2. Definitions. -........

(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question withinSection 144, but shall not include -

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation. - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."

17. A reading of the aforesaid provision makes it clear that an order rejecting a plaint shall be deemed to be a decree, but it has not been provided in the said section that an order dismissing an application to reject a plaint is deemed to be a decree. The word "deemed" is commonly used for creating a statutory fiction for extending the meaning to a subject-matter which it does not specifically designate.

18. In the case of CIT vs. Bombay Trust Corporation reported in AIR 1930 PC 54, it is stated that when a person is "deemed to be" something, the only meaning possible is that whereas he is not in reality that something, the Act of Parliament or the Legislature requires him to be treated as if he were.". An adjudication not fulfilling the requisites of Clause 2 of Section 2 of the Code cannot be said to be a "decree". By a legal fiction, however, certain orders and determinations are deemed to be "decree" within the meaning of Section 2(2). When a statutory fiction is created by a Legislature, it cannot be ignored. The effect of such legal fiction is that a position which otherwise is not present, it is deemed to be present under the specified circumstances. As stated above, Section 2(2) of the Code specifically provides that rejection of a pliant shall be deemed to be a decree, but the Legislature has consciously not included the order dismissing an application for rejection of plaint filed under Order 7 Rule 11 of the CPC within the deeming provision and therefore, it is clear that an order seeking rejection of the plaint cannot be deemed to be a decree within the meaning of Section 2 (2) of the CPC. When an order cannot be deemed to be a decree under Section 2(2) of the Code, though the order decides an important aspect of the trial affecting the very valuable right of the defendant, it cannot be held that an appeal will lie against such an order, especially when no appeal is provided against such an order under Order 43 CPC.

19. In so far as the present case is concerned the petitioner has directly approached this Court under Article 227 of Constitution of India against the order by which an application filed by the defendant-petitioner under Order 7 Rule 11 was rejected by the court below.

20. In this view of the matter the Court is of the opinion that the present petition is not at all maintainable specially due to the fact that a statutory alternative remedy is available to the petitioner to file a Civil Revision before the revisional court as provided under Section 115 of the Code of Civil Procedure.

21. In view of the same as stated above, without interfering with the order passed by the court below and without expressing any opinion on the merits of the case, the present petition is disposed of finally, permitting the petitioner to file a revision as provided under Section 115 of the Code of Civil Procedure, if so advised.

Order Date :- 19.3.2021

Swati