Ashwinbhai Maganbhai Patel vs Kanubhai Ravjibhai Patel
2022 Latest Caselaw 8925 Guj

     C/FA/792/2017                               ORDER DATED: 07/10/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 792 of 2017
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               ASHWINBHAI MAGANBHAI PATEL & 2 other(s)
                               Versus
                 KANUBHAI RAVJIBHAI PATEL & 2 other(s)
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Appearance:
MR. JAY M THAKKAR(6677) for the Appellant(s) No. 1,2,3.1,3.2,3.3
MR. HARDEEP L MAHIDA(7112) for the Defendant(s) No. 1,2,3
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 07/10/2022
                   ORAL ORDER

1. The present appeal emanates from the judgment and order dated 23.09.2016 passed by the learned 2 nd Additional Senior Civil Judge, Anand, below Exh.1 in Special Civil Suit No.103 of 2015, allowing the application filed by the original defendants seeking rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908, (for short, "the CPC").

2. Learned advocate Mr.Thakkar, appearing for the original plaintiffs has submitted that the plaint could not have been returned on the application filed by the original defendants under the provisions of Order VII Rule 11 of the CPC, since the Court below should have confined its finding to the averments made in the plaint. He has submitted that in fact, on the application made by the defendants by the order dated 12.04.2016, the application filed under Order VII Rule 11 of the CPC is ordered to be heard along with the suit, which is impermissible. Further, attention is invited to the interim orders passed by the Court below and has submitted that in fact, the Court by the order dated 12.07.2016, had kept the suit for the issue that whether the plaintiffs would have filed an

C/FA/792/2017 ORDER DATED: 07/10/2022

execution proceedings in the earlier suit. It is thus, submitted that the manner and approach of the Court below in passing the impugned order rejecting the plaint is inappropriate and against the law, and hence, the same may be set aside and the matter may be remanded.

3. Per contra, learned advocate Mr.Nair, appearing for the opponents has submitted that the order allowing the application under Order VII Rule 11 of the CPC seeking rejection of the plaint is appropriately passed and the same may not be interfered with.

4. I have heard the learned advocates appearing for the respective parties. The impugned order is also perused.

5. It is well settled proposition of law that while deciding the application under Order VII Rule 11 of the CPC seeking rejection of the plaint, the Court has to confine its examination and scrutiny to the averments made in the plaint only and cannot go beyond what is stated in the plaint. The Court can also examine the accompanied documents annexed with the plaint. The defence of the defendants is required to be absolutely ignored while deciding with an application under Order VII Rule 11 of the CPC. I have perused the interim orders passed by the Court below. It is noticed that when the defendants had filed the application under Order VII Rule 11 of the CPC, the Trial Court, by the order dated 12.04.2016 on the application made by the defendants, has ordered that the said application seeking rejection of the plant under Order VII Rule 11 is ordered to be heard with the main suit. After passing of

C/FA/792/2017 ORDER DATED: 07/10/2022

the aforesaid order, the Trial Court has, on 12.07.2016, passed an order observing that the suit was kept for hearing on the issue that whether the plaintiff could have filed execution proceeding in the earlier suit and the suit is not maintainable. After such orders are passed, the impugned order rejecting the plaint has been passed. This Court has perused the impugned order. The same reveals that in fact, the Court below has confined its findings with regard to the earlier suit being Regular Civil Suit No.528 of 1978 and the orders passed therein as well as the orders passed in the Regular Civil Suit No.162 of 2008 filed by the defendants. Thus, there is apparent error in dealing and passing the final order under VII Rule 11 of the CPC.

6. Hence, the impugned order dated 23.09.2016 passed by the learned 2nd Additional Senior Civil Judge, Anand, below Exh.1 in Special Civil Suit No.103 of 2015 is quashed and set aside. The matter is remanded to the Court below for passing fresh orders on the application Exh.1 and 13. The suit being Regular Civil Suit No.103 of 2015 is ordered to be restored to its original file. After the same is restored, the parties shall be intimated by the concerned Trial Court to appear on a particular date. As noticed hereinabove, this Court has not expressed anything on merits. It will be open for both the parties to take all available contentions. It is reiterated that while deciding the application filed below Exh.13, the Trial Court shall only examine the contents of the plaint and accompanied documents and the defence of the defendants shall be ignored.

C/FA/792/2017 ORDER DATED: 07/10/2022

7. Record and proceedings, if any received, shall be sent to the concerned Court forthwith.

(A. S. SUPEHIA, J)

MB/ 140