Orissa High Court
Maheswar Moharana And Another vs Pradipta Kumar Das And Others .... ... on 25 February, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.R.P. No.6 of 2024
(In the matter of an application under Section 115 of the Code of Civil Procedure, 1908)
Maheswar Moharana and another .... Petitioners
-versus-
Pradipta Kumar Das and others .... Opposite Parties
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Petitioners - Mr. G. Mukherjee, Sr.Advocate.
Mr. M. Wright, Advocate.
For Opposite Parties- Mr. G. N. Parida, Advocate.
CORAM:
HON'BLE MR. JUSTICE A.C.BEHERA
Date of Hearing :28.01.2025 :: Date of Judgment :25.02.2025
A.C. Behera, J. This revision under Section 115 of the CPC, 1908 has
been filed by the petitioners (defendant Nos.1 & 2 in the suit vide C.S.
No.691 of 2023) challenging an order of rejection of their petition under
Order 7 Rule 11 (b) & (d) of the CPC, 1908, which was filed for rejection
of the plaint in C.S. No.691 of 2023 filed by the plaintiff (opposite party
No.1 in this revision).
The petitioners in this revision are the defendant Nos.1 & 2 in the
suit vide C.S. No.691 of 2023 before the Court of learned Civil Judge (Sr.
Division), Bhubaneswar. The opposite party No.1 in this revision is the
sole plaintiff in the said suit vide C.S. No.691 of 2023.
The opposite party Nos.5 to 9 in this revision are the proforma
defendant Nos.6 to 10 in the suit vide C.S. No.691 of 2023.
2. The suit of the plaintiff vide C.S. No.691 of 2023 is a suit for
specific performance of contract for a direction to the defendants to
execute the sale deed in favour of the plaintiff.
In that suit, the defendant Nos.1 & 2 filed a petition under O.7 R.11
(b) & (d) of the CPC, 1908 against the plaintiff praying for rejection of
the plaint on the following grounds i.e. (i) the suit is undervalued, (ii) the
agreement in question has already been determined due to completion of
three months, (iii) the said agreement in question was determinable in
nature, (iv) the suit of the plaintiff is hit and barred as per the provisions
of law envisaged under O.23 R.1(4) and O.2 R.2 as well as under O.7 R.3
of the CPC, 1908.
To which, the plaintiff objected contending that, the above grounds
raised by the defendant Nos.1 & 2 in their petition under O.7 R.11 of the
CPC, 1908 can only be decided in the judgment of the suit after
appreciation of pleadings and evidence of the parties, but not at this
preliminary stage, only on the basis of the plaint of the plaintiff.
3. After hearing from the both the sides, the Trial Court rejected to
the aforesaid petition under O.7 R.11 (b) & (d) of the CPC, 1908 of the
defendant Nos.1 & 2 on dated 24.01.2024 assigning the reasons that, "all
the grounds raised in the petition under O.7 R.11 (b) & (d) of the CPC,
1908 by the defendant Nos.1 & 2 for rejection of plaint can only be
decided in the suit after framing proper issues for the same. For which,
there is no reason to reject the plaint of the plaintiff."
4. On being aggrieved with the said order of rejection to the petition
under O.7 R.11 (b) & (d) of the CPC, 1908 of the defendant Nos.1 & 2,
they (defendant Nos.1 & 2) challenged the same by filing this revision
being the petitioners against the plaintiff and defendant Nos.3 to 10
arraying them as opposite parties.
5. I have already heard from the learned counsels of both the sides.
6. In order to assail the impugned order dated 24.01.2024, the learned
counsel for the petitioners relied upon the following decisions i.e.
P. Ravindranath and Ors. Vrs. Sasikala and Ors. reported in
2024(4)CTC626, C. Haridasan Vrs. Anappath Parakkattu Vasudeva
Kurup and Ors. reported in 2023(1) CTC605, Turnaround Logistic (P)
Ltd. Vrs. Jet Airways (India) Ltd. and Ors. passed in CS (OS) 574/2006,
Virgo Industries (Eng.) P. Ltd. Vrs. Venturetech Solutions P. Ltd.
reported in 2012 (4) CCC 110, Desh Raj and Ors. Vrs. Rohtash Singh
reported in (2023) 3 SCC 714, Eldeco Housing and Industries Limited
Vrs. Ashok Vidyarthi and Ors. passed in Civil Appeal No.7891 of 2023,
Rajendra Bajoria and Ors. Vrs. Hemant Kumar Jalan and Ors. reported
in 2021 (4) CCC 66.
On the contrary, in support of the impugned order, the learned
counsel for the opposite party No.1 (plaintiff) relied upon the following
decisions i.e.
Srihari Hanumandas Totala Vrs. Hemant Vithal Kamat and
others reported in (2021) 9 SCC 99, Keshav Sood Vrs. Kirti Pradeep
Sood and Ors. passed in Civil Appeal No.5841 of 2023, Eldeco Housing
and Industries Limited Vrs. Ashok Vidyarthi and Ors. reported in
2024(253)AIC77.
7. The law concerning rejection of plaint through a petition under O.7
R.11 of the CPC, 1908 has already been clarified in the ratio of the
following decisions:-
(i) 2015(1) Civil Court Cases 164 (SC)--Rathnavati and another
Vrs. Kavita Ganashamdas--CPC, 1908--O.2 R.2--Bar of
subsequent suit--agreement to sell--suit for permanent injunction--
Subsequent suit for specific performance--Cause of action for filing
suit for permanent injunction based on threat to dispossess--Cause of
action to file suit for specific performance based on nonperformance
of agreement despite giving legal notice--In suit for permanent
injunction, plaintiff is required to make out existence of prima facie
case, balance of convenience and irreparable loss in accordance with
provisions of Section 38 of Specific Relief Act--Bar contained under
O.2 R.2 of the CPC, 1908 is not attracted.
(ii) 2014 (2) Apex Court Judgments 200 (SC)--Coffee Board Vrs.
M/s Ramesh Exports Pvt. Ltd.--CPC, 1908--O.2 R.2--Bar of
subsequent suit--Bar of O.2 R.2 of the CPC must be specifically
pleaded by defendant in suit and trial court should specifically frame a
specific issue in that regard, wherein the pleading in earlier suit must
be examined and plaintiff is given an opportunity to demonstrate that,
the cause of action in subsequent suit is different.
(iii) 2022 (1) Civil Court Cases 624 (Punjab & Haryana)--
Darshan Singh and others Vrs Pardeep Singh and others--O.7 R.11
read with O.23 R.1(4)--O.2 R.2--Rejection of plaint--Dismissal of
the earlier suit was for default and not on merits, it cannot be said that,
the instant suit is barred under O.23 R.1(4), O.2 R.2 of the CPC, 1908.
(iv) 2013 AIR CC 2864--Rachna Sharma Vrs. Meena Kumari
Sharma--O.7 R.11(b)--Rejection of plaint--Want of correct
valuation for purpose of Court fee--Court is not in a position to
determine correct valuation of built up structure referred in plaint--
Held, plaint cannot be rejected under O.7 R.11 of the CPC, 1908 for
want of correct valuation for purpose of Court fee--Trial Court while
framing issues shall also frame issue regarding valuation of suit
property for purpose of court fee and decide issue in accordance with
law after giving opportunity to parties to lead evidence.
(v) 2017 (1) Civil Court Cases 703 (Rajasthan)--Shamim Bano Vrs.
Nek Mohammed @ Aziz--O.7 R.11 (b) & (c)--Rejection of plaint--
Deficient Court fee--Court fee paid as assessed by Court--Plea that
Trial Court erred in correctly evaluating the value of property--A
continuing issue needs to be determined on the basis of evidence to be
led by the parties.
(vi) 2017 (Suppl.) Civil Court Cases 721 (Madras)--K. Ramadoss
and others Vrs. E. Stalin--CPC, 1908--O.7 R.11 (b) & (c)--
Rejection of plaint--Ground of undervaluation or payment deficient
Court fee-- Plaint cannot be straightaway rejected on the ground of
undervaluation or payment of deficient Court fee--Only when Court
founds that, relief has been undervalued or sufficient Court fee paid,
directs the plaintiff to amend the valuation within a time to be
stipulated or to pay the deficient Court fee and if the plaintiff fails to
do so, then only question of rejection of plaint under O.7 R.11(b) &
(c) CPC, 1908 would arise.
(vii) 2021 (1) Civil Court Cases 022 (Allahabad)-Smt. Omwati &
Ors. Vrs. Raghubar Singh Yadav & Ors.--(Para 17)--CPC, 1908--
O.7 R.11(d)--Rejection of plaint--Any question, which requires to be
decided on basis of evidence of parties, cannot be basis for rejecting a
plaint.
(viii) 2003 (1) OLR 473--Nandakishore Nayak and two others Vrs.
State of Orissa and two others--(Para 11)--Valuation of a suit and
payment of Court fees is a matter between the plaintiff and the Court
and defendants have no say in that respect.
(ix) 2012 (2) OJR 255 (SC)--A. Nawab John and Others Vrs. V.
N. Subramaniyam--Legislature did not intend to give any advantage
to the defendants on account of the payment of the inadequate Court
fee by the plaintiffs--A defendant is entitled to bring it to the notice
of the Court that, the amount of the Court fee paid by the plaintiff is
not accordance with law--The defendant cannot succeed in the suit
only on that count.
8. When, the earlier suit of the plaintiff vide C.S. No.2590 of 2022
was a suit for permanent injunction simpliciter in respect of the suit
properties and when that suit of the plaintiff was withdrawn and after
withdrawal of that suit, the present suit vide C.S. No.691 of 2022 for
specific performance of contract has been filed by the plaintiff and the
matters in dispute in the suit can only be adjudicated on verification of
the plaint of the previous suit vide C.S. No.2590 of 2022 as well as the
evidence of the parties, but not only on the examination of the plaint of
the plaintiff at this stage and when the other grounds raised by the
defendant Nos.1 & 2 for rejection of plaint i.e. undervaluation of the suit,
determinable nature of the agreement and absence of proper description
of the suit properties can only be adjudicated in the trial of the suit after
consideration of pleadings and evidence of both the parties on the basis of
issues framed for the same, but not only on verification of the plaint, then
at this juncture, by applying the principles of law enunciated by the
Hon'ble Courts and Apex Court in the ratio of the aforesaid decisions
referred to supra in paragraph No.7 of this judgment, the reasons
assigned by the Trial Court for rejection of the petition under O.7 R.11 of
the CPC, 1908 of the defendant Nos.1 & 2 cannot be held as erroneous.
For which, the question of interfering with the same through this
revision filed by the petitioners (defendant Nos.1 & 2 in C.S. No.691 of
2023) does not arise.
So, the decisions cited on behalf of the petitioners indicated in
paragraph No.6 of this judgment have become inapplicable to this
revision for the reasons assigned above.
9. When, it is held that, the reasons assigned by the Trial Court in the
impugned order are not interferable through this revision filed by the
petitioners (defendant Nos.1 & 2), then at this juncture, the impugned
order passed by the Trial Court cannot be held as unsustainable under
law.
For which, there is no merit in the revision of the petitioner, the
same must fail.
10. In result, the revision filed by the petitioners (defendant Nos.1 & 2)
is dismissed on contest, but without cost.
11. As such, this revision is disposed of finally.
(A.C. Behera),
Judge.
Orissa High Court, Cuttack.
25.02.2025//Utkalika Nayak//
Junior Stenographer
Signature Not
Verified
Digitally Signed
Signed by: UTKALIKA
NAYAK
Reason: Authentication
Location: High Court of
Orissa, Cuttack
Date: 25-Feb-2025
18:07:52
