Page No.# 1/9 vs M/S Sreeniwas Basudeo And 3 Ors
2025 Latest Caselaw 3749 Gua

Gauhati High Court

Page No.# 1/9 vs M/S Sreeniwas Basudeo And 3 Ors on 5 March, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                Page No.# 1/9

GAHC010277042023




                                                          2025:GAU-AS:2370

                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                       Case No. : CRP(IO)/40/2024

         M/S MARBLE CENTER AND ANR
         A PROPRIETORSHIP FIRM HAVING ITS OFFICE AT SREENIWAS BASUDEO
         COMPLEX, G.S. ROAD, GANESHGURI, GUWAHATI-05, DIST. KAMRUP(M),
         ASSAM, THROUGH ITS PROPRIETOR SMTI LILA DEVI LAHOTY, WIFE OF
         SHRI PRADEEP LAHOTY.

         2: SMTI. LEELA DEVI LAHOTY
         W/O- SHRI PRADEEP LAHOTY
          PROPRIETOR OF M/S MARBLE CENTRE
          SREENIWAS BASUDEO COMPLEX
          G.S. ROAD
          GANESHGURI
          GUWAHATI-05
          DIST. KAMRUP(M)
         ASSA

         VERSUS

         M/S SREENIWAS BASUDEO AND 3 ORS
         A UNIT OF ASSAM VEGETABLE AND OIL PRODUCTS LTD., GENERAL
         MERCHANT AND COMMISSION AGENTS, HAVING ITS REGISTERED
         OFFICE AT G.S. ROAD, GANESHGURI, GUWAHATI-05, REPRESENTED BY
         ITS AUTHORIZED DIRECTOR, SRI YASH DEORAH, SON OF SRI PANKAJ
         DEORAH.

         2:YASH DEORAH
          S/O- SRI PANKAJ DEORAH
         AUTHORIZED DIRECTOR OF M/S SREENIWAS BASUDEO
          GANESHGURI
          GUWAHATI-5
         AT PRESENT RESIDENT OF SPANISH GARDEN
          FLAT NO. C-404
          ZOO ROAD
          GHY-05
                                                                    Page No.# 2/9

             DIST. KAMRUP(M)
             ASSAM

            3:ASSAM VEGETABLE AND OIL PRODUCTS LTD.

            A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE
            COMPANIES ACT
            1956
            HAVING ITS REGITERED OFFICE AND PRINCIPAL PLACE OF BUSINESS AT
            G.S.ROAD
            GANESHGURI
            GHY-6 AND IS REPRESENTED BY ITS AUTHORIZED DIRECTOR SRI YASH
            DEORAH
            SON OF SRI PANKAJ DEORAH.

            4:DEEPAK AGARWAL
             S/O- SRI M.L. AGARWAL
             C/O- SREENIWAS BASUDEO COMPLEX
             G.S. ROAD
             GANESHGURI
            GHY-781005
             DIST. KAMRUP(M)
            ASSA




For the Petitioner(s)       : Mr. C.N. Bora, Advocate
For the Respondent(s)       : Mr. K. Jain, Advocate


Date of Hearing                           : 05.03.2025
Date of Judgment                          : 05.03.2025




                                       BEFORE
                        HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                              JUDGMENT AND ORDER (ORAL)

Heard Mr. C.N. Bora, the learned counsel appearing on behalf of the petitioners. Mr. K. Jain, the learned counsel appears on behalf of the Page No.# 3/9

respondent Nos. 1, 2 and 3.

2. This is an application filed by invoking the supervisory jurisdiction of this Court challenging the order dated 22.09.2023 passed by the Court of the learned Civil Judge (Sr. Div.) No. 3, Kamrup (M) at Guwahati (hereinafter referred to as, "the learned Trial Court") in Misc. (J) Case No. 943/2022 arising out of Title Suit No. 120/2021, whereby the application filed by the defendant Nos. 2 and 3 under Order VII Rule 11(f) read with Section 151 of the Code of Civil Procedure, 1908 (for short, 'the Code") for rejection of the plaint was rejected.

3. The question arises in the present facts, as to whether, this Court should exercise its supervisory jurisdiction.

4. At the outset, it is relevant to take note of that if the application filed by the defendant Nos. 2 and 3 would have led to the rejection of the plaint, it would have amounted to the disposal of Title Suit No. 120/2021. In that view of the matter, the appropriate proceedings against the order dated 22.09.2023 is a proceeding under Section 115 of the Code and not the supervisory jurisdiction of this Court. On this ground alone, the instant petition ought not to be entertained.

5. Be that as it may, as this Court also exercises the jurisdiction under Section 115 of the Code, this Court would not like to dismiss the present application on that ground alone. Accordingly, the question arises, as to whether, the order dated 22.09.2023 is revisable as per Section 115 of the Code.

6. The respondent Nos. 1, 2 and 3 herein as plaintiffs had instituted a suit being Page No.# 4/9

Title Suit No. 120/2021 seeking ejectment of the defendants from the suit premises as described in Schedule-A to the plaint and for khas and vacant possession of the same; for recovery of arrear licensee fee and late fee of Rs. 21,25,464/- w.e.f. April, 2018 to March, 2021 and also for future rents and delayed fine at the rate of Rs. 52,674/- per month on and from April, 2021 till eviction of the defendants from the Schedule-A land along with interest at the rate of 18% per annum. The suit upon being filed was registered as Title Suit No. 120/2021 was endorsed to the Court of the learned Trial Court for disposal by the learned District Judge.

7. On 09.04.2021, summons were issued to the defendants and the plaintiffs were directed to take steps upon the defendants for service of summons within 7 (seven) days. The learned Trial Court further fixed 05.06.2021 for SR/WS. It is relevant to take note of that on 05.06.2021 and 30.07.2021 on account of the COVID restrictions, the suit could not be taken up and accordingly the case was fixed on 27.09.2021. On 27.09.2021, the learned Trial Court recorded that the plaintiffs have not taken steps yet and accordingly directed the plaintiffs to take steps, thereby fixing 06.12.2021 for SR/WS. The plaintiffs thereupon took steps on 06.12.2021 and vide an order dated 06.12.2021, the suit was fixed on 29.01.2022 for SR/WS. It is further seen that vide the order dated 29.01.2022, the learned Trial Court further directed the plaintiffs to take fresh steps upon the defendants, thereby fixing 06.04.2022 for SR/WS. Be that as it may, on 06.04.2022, it is recorded by the learned Trial Court in its order that the steps were not taken yet and the plaintiffs were again directed to take steps, thereby fixing 09.06.2022 for SR/WS/N.O. It is however relevant to take note of that on 09.06.2022, the learned counsel for the plaintiffs had filed his steps, but however, the Presiding Officer having been transferred, the said aspect is Page No.# 5/9

mentioned in the noting of the Sheristedar of the Court. The record further reveals that on 06.08.2022, the Presiding Officer was on leave and in the meantime, the steps which were being taken by the plaintiffs, process was issued on 11.08.2022. On 26.10.2022, the defendant Nos. 2 and 3 appeared and prayed for furnishing of documents to the defendants. The learned Trial Court, taking into account that the summon upon the defendant No. 1 was duly served and the defendant No. 1 having failed to appear observed that the suit shall proceed ex-parte against the defendant No. 1. At this stage, it is also relevant to take note of that on 26.10.2022, the defendant Nos. 2 and 3 filed an application under Order VII Rule 11(f) read with Section 151 of the Code praying for rejection of the plaint. This application was registered and numbered as Misc. (J) Case No. 943/2022. In view of the filing of the said application, vide the order dated 26.10.2022 Title Suit No. 120/2021 was kept in abeyance till the disposal of the said miscellaneous application. The record further reveals that the plaintiffs submitted their written objection to the application on 28.03.2023. Subsequent thereto, the impugned order dated 22.09.2023 was passed whereby Misc (J) Case No. 943/2022 was rejected. It is under such circumstances, the present application have been initiated.

8. This Court had perused the application so filed by the defendant Nos. 2 and 3/the petitioners herein which was registered and numbered as Misc.(J) Case No. 943/2022. The ground taken is that there was an order passed by the learned Trial Court on 09.04.2021 directing the plaintiffs to take steps. However, the plaintiffs took steps only on 06.12.2021. It was further mentioned that vide another order dated 06.04.2022, the learned Trial Court had directed the plaintiffs to take steps and the plaintiffs took steps on 09.06.2022. Accordingly, in terms with Order VII Rule 11(f) read with Order VII Rule 9 of the Code, the Page No.# 6/9

plaint was required to be rejected.

9. The learned Trial Court vide the impugned order dated 22.09.2023 rejected the application seeking rejection of the plaint. In doing so, the learned Trial Court have referred to the judgment of the Supreme Court in the case of Salem Advocate Bar Association, T.N vs. Union of India reported in (2003) 1 SCC

49 and observed that the provisions of Order VII Rule 11(f) of the Code is not

mandatory but directory in nature and that being the position, the ground on which the rejection of the plaint have been sought for is not tenable.

10. This Court had duly heard the learned counsels for the parties and has perused the materials on record.

11. At the outset, it is relevant to take note of that though summons were issued on 09.04.2021 and the plaintiffs were directed to take steps within 7(seven) days, it must not be forgotten that at that relevant point of time there was a COVID pandemic and this aspect of the matter would be apparent from a perusal of the orders dated 05.06.2021 and 30.07.2021. This Court further takes note of that on 27.09.2021, the learned Trial Court observed that the plaintiffs had not taken steps and the plaintiffs were directed to take steps fixing 06.12.2021 for SR/WS. However, the plaintiffs had taken steps on 06.12.2021 as apparent from the records and accordingly process was issued on 05.01.2022. Thereupon, the learned Trial Court further directed the plaintiffs to again take fresh steps on 29.01.2022 and the plaintiffs had taken steps as would appear from the order dated 09.06.2022.

12. This Court further finds it relevant to take note of the judgment of the Page No.# 7/9

Supreme Court in the case of Salem Advocate Bar Association, T.N (supra) wherein in the Supreme Court had dealt with Clauses (e) and (f) of Order VII Rule 11 of the Code. Paragraph No. 16 of the said judgment is reproduced herein under:

" 16. Our attention has been drawn to Order 7 Rule 11 to which clauses (e) and (f) have been added which enable the Court to reject the paint where it is not filed in duplicate or where the plaintiff fails to comply with the provisions of Rule 9 of Order VII. It appears to us that the said clauses being procedural would not require the automatic rejection of the plaint at the first instance. If there is any defect as contemplated by Rule 11 (e) or non-compliance as referred to in Rule 11(f), the Court should ordinarily give an opportunity for rectifying the defects, and in the event of the same not being done the Curt will have the liberty or the right to reject the plaint."

13. From the above quoted observations of the Supreme Court, it is apparent that a Court should ordinarily give an opportunity for rectifying the defects and in the event of the same is not being done, the Court will have the liberty or right to reject the plaint. Therefore, from the observations so made it is clear that non-compliance to Order VII Rule 9 of the Code is between the plaintiff and the Court and as such it does not give a right to the defendant to seek rejection of the plaint for not taking steps in terms with Order VII Rule 9 of the Code.

14. This Court further finds it relevant to take note of another provision of law, i.e. Order VII Rule 13 of the Code which stipulates that if there is a rejection of a plaint on any of the grounds mentioned in Order VII Rule 11 of the Code, it shall not of its own force preclude the plaintiff from presenting a fresh suit in respect to the same cause of action.

Page No.# 8/9

15. This Court also finds it relevant to observe that there is a fundamental distinction when a plaint is liable to be rejected under Order VII Rule 11(a) and

(d) of the Code to that of Order VII Rule 11(b), (c), (e) and (f) of the Code. It is imperative upon the Court to reject the plaint if the grounds mentioned in Order VII Rule 11(a) and (b) of the Code is satisfied, whereas rejection of a plaint in terms with Order VII Rule 11(b), (c), (e) and (f) of the Code is on the question of compliance of a procedural provision and further from a perusal of Clauses

(b) and (c) itself and the observations of the Supreme Court in Salem Advocate Bar Association, T.N (supra) in respect to Clauses (e) and (f) also shows that

they are directory in nature whereby the Court is required to grant opportunities. Under such circumstances, it is therefore the opinion of this Court that the learned Trial Court was justified in rejecting the application for rejection of the plaint filed by the defendant Nos. 2 and 3 vide the impugned order. Accordingly, the instant petition stands dismissed.

16. This Court further takes note of that vide an order dated 02.02.2024, the records of Title Suit No. 120/2021 was requisitioned by this Court. Taking into account that this Court had already dismissed the instant petition, the Registry is directed to forthwith return the records to the learned Trial Court.

17. It is further seen that in the order dated 05.02.2024 passed in Title Suit No. 120/2021, it is recorded that the plaintiffs had supplied the copies of the plaint and the documents relied thereupon and the learned counsel for the defendants were directed to receive.

18. Considering the above, this Court fixes the instant suit before the learned Trial Court i.e. the Court of the learned Civil Judge (Sr. Div.) No. 3, Kamrup (M) Page No.# 9/9

at Guwahati on 07.04.2025. The defendant Nos. 2 and 3 who are the petitioners herein are directed to file their written statement in the said suit on the next date.

JUDGE

Comparing Assistant