Orissa High Court
Nu Vista Ltd vs Damodar Behera And Others .... Opposite ... on 31 January, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.R.P. No.5 of 2022
(In the matter of an application under Section 115 of the CPC, 1908)
NU Vista Ltd., erstwhile known as .... Petitioner
M/s. Emami Cement Ltd. at
Kalinga Nagar Industrial
Complex, Jajpur
-versus-
Damodar Behera and others .... Opposite Parties
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Petitioner - Mr. M. Agarwal,
Advocate.
For Opposite Parties- Mr. G. Mohanty,
SC
CORAM:
HON'BLE MR. JUSTICE A.C.BEHERA
Date of Hearing :28.01.2025 :: Date of Judgment :31.01.2025
A.C. Behera, J. This revision under Section 115 of the CPC, 1908 has
been filed by the petitioner against the opposite parties challenging an
order of rejection of its petition under Order 7 Rule 11 of the CPC, 1908
for rejection of plaint of the plaintiffs in C.S. No.75 of 2021 passed on
dated 20.12.2021 by the learned Civil Judge (Sr. Division), Jajpur Road
in the District of Jajpur.
The petitioner of this writ petition is the defendant No.3, the
opposite party Nos.1 & 2 of this revision are the plaintiffs and opposite
party Nos.3 & 4 i.e. State and the Tahasildar, Danagadi of this revision
are the defendant Nos.1 & 2 in the suit vide C.S. No.75 of 2021.
2. The factual backgrounds of this revision, which prompted the
petitioner (defendant No.3 in the suit) for filing of the same is that, the
plaintiffs (opposite party Nos.1 & 2 of this revision) filed the suit vide
C.S. No.75 of 2021 against the defendants (petitioner and opposite party
Nos.3 & 4 of this revision) praying for declaration of their right, title and
interest over the suit properties and to injunct the defendant No.3
(petitioner of this revision) permanently from entering into the suit
properties on the ground that, they (plaintiffs) are the owners of the suit
properties. Because, their predecessor was inducted in the suit properties
by the ex-intermediary for agricultural purpose and after induction of
their predecessor, he had reclaimed the suit properties by removing
bushes therefrom making the same fit for agricultural purpose and since
the time of the ex-intermediary i.e. since 1930, till yet, they (plaintiffs)
are possessing the same paying rent to the Government, in which, the
defendants have no interest and possession.
Defendant No.3 i.e. NU Vista Ltd. (petitioner in this revision) filed
a petition under Order 7 Rule 11 of the CPC, 1908 in the suit of the
plaintiffs vide C.S. No.75 of 2021 praying for rejection of the plaint on
the ground that, the suit properties are forest land. The plaint of the
plaintiffs does not disclose any cause of action. The suit of the plaintiffs
is barred under law as per the provisions of The Schedule Tribes and
Other Traditional Forest Dwellers (Recognition of Forest Rights) Act,
2006.
3. After hearing from both the sides, the learned Trial Court rejected
to the petition under Order 7 Rule 11 of the CPC, 1908 of the defendant
No.3 on dated 20.12.2021 assigning the reasons that, whether the suit
land is a piece of forest land or not cannot be decided at this stage of the
suit, as there is no indication in the plaint that, the suit properties are
forest land, for which, the same can only be decided in the judgment of
the suit after completion of evidence of both the sides.
4. On being dissatisfied with the aforesaid rejection of the petition
under Order 7 Rule 11 of the CPC, 1908 of the defendant No.3 passed by
the learned Trial Court, the defendant No.3 challenged the same by filing
this revision being the petitioner against the plaintiffs and defendant
Nos.1 & 2 arraying them as opposite parties.
5. I have already heard from the learned counsel for the petitioner and
learned Standing Counsel for the State.
6. It is very fundamental in law that, at the time of consideration of
the petition under Order 7 Rule 11 of the CPC, 1908 filed by any
defendant, only the averments made in the plaint is to be perused and
examined by the Court, but not the written statement or any possible plea
of the defendant.
The law concerning the duties of the Court for the lawful disposal
of the petition under Order 7 Rule 11 of the CPC, 1908 like the petition of
the defendant No.3 in the suit vide C.S. No.75 of 2021 at hand on the
above grounds raised by it (defendant No.3) has already been clarified by
the Hon'ble Court and Apex Court in the ratio of the following
decisions:-
(i) 2023 (4) Civil Court Cases 550 (S.C.)--Kum. Geetha d/o.
Late Krishna & Ors. Vrs. Nanjundaswamy & Ors.--(Paras (9 &
10)--CPC, 1908--Order 7 Rule 11--Rejection of plaint--At this
stage, Court is not concerned with the correctness of the averments.
(ii) (2007) 15 SCC 52--Jageshwari Devi and others Vrs.
Shatrughan Ram--(Para 3)--CPC, 1908--Order 7 Rule 11--
There is a difference between the non-disclosure of a cause of
action and defective cause of action: while the former comes within
the scope of Order 7 Rule 11, the latter is to be decided during trial
of the suit.
(iii) 2023 (1) Civil Court Cases 195 ( J & K & L)--Hafiza Begum
& Ors. Vrs. Shams Din Bhat & Ors.--(Para 11)--CPC, 1908--
Order 7 Rule 11--Rejection of plaint--Defectively pleaded cause
of action--Not a ground for rejection of plaint.
(iv) 2023 (3) Civil Court Cases 202 (Punjab & Haryana)--Mewa
Singh & others Vrs. Tehal Singh & Ors.--CPC, 1908--(Para
6)--Order 7 Rule 11--Rejection of plaint--Pleas raised cannot be
appreciated properly without recording evidence. Because, when
suit is at preliminary stage, it cannot be said that, plaint does not
disclose any cause of action.
(v) 2021 (3) Civil Court Cases 261 (Delhi)--Archana Mittal and
Another Vrs. Shikha Mittal--(Para 7)--CPC, 1908--Order 7 Rule
11--Rejection of plaint-Cause of action-If averments in plaint
prima facie disclose a cause of action, at that stage, Court cannot
embark upon an enquiry on truth of allegations.
(vi) 2018 (1) Civil Court Case 135 (T & A.P.)--Syed Jalal Vrs.
Madroom Sri Ram Chabdra Murthy & Ors.--CPC, 1908--Order
7 Rule 11--Rejection of plaint--Cause of action--If a plaint ex-
facie discloses cause of action, Court cannot exercise power under
Order 7 Rule 11 of the CPC.
(vii) 2021 (1) Civil Court Cases 195 (Uttarakhand)--Kishan
Singh & another Vrs. Bhupendra Singh and Another--(Para
No.7)--CPC, 1908--Order 7 Rule 11--Rejection of plaint--Non-
disclosure of cause of action--When plaint averments thus,
disclose cause of action-application rightly dismissed.
(viii) 2020 (1) Civil Court Cases 832 (Kerala) (D.B.)--P.E.
Thomas Vrs. Abraham Jose Rocky--Order 7, Rule11--(Para
16)--CPC, 1908--Rejection of plaint--Cause of action--Issue
raised in application could be answered only after trial of case.
7. When, there is no averments in the plaint in C.S. No.75 of 2021
filed by the plaintiffs that, the suit properties are forest land and when the
averments in Paragraph No.8 of the plaint are disclosing cause of action
for filing the suit and when the questions raised above by the defendant
No.3 for the rejection of the plaint are required to be decided on the basis
of evidence of the parties, then at this juncture, by applying the principles
of law enunciated in the ratio of the aforesaid decisions of the Hon'ble
Courts and Apex Court, it cannot be held that, the reasons assigned by the
Trial Court for rejection of the petition under Order 7, Rule 11 of the
CPC, 1908 of the defendant No.3 (petitioner in this revision) as per the
impugned order dated 20.12.2021 are erroneous. Because, any question,
which requires to be decided on the basis of evidence of the parties, the
said questions cannot be the basis for rejecting a plaint.
8. As per the discussions and observations made above, when it is
held that, the grounds raised by the defendant No.3 (petitioner in this
revision) for rejection of the plaint of the plaintiffs under Order 7, Rule
11 of the CPC, 1908 i.e. the suit properties are forest land and that the
plaintiffs have no cause of action for filing of the suit and the suit of the
plaintiffs is barred under law as per the provisions of The Schedule Tribes
and Other Traditional Forest Dwellers (Recognition of Forest Rights)
Act, 2006 are ad-judiciable only after consideration of pleadings and
evidence of the parties at the time of passing of judgment in the suit, then
at this juncture, the question of interfering with the impugned order dated
20.12.2021 passed by the Trial Court in C.S. No.75 of 2021 through this
revision does not arise.
Therefore, there is no merit in the revision of the petitioner
(defendant No.3). The same must fail.
9. In result, the revision filed by the petitioner (defendant No.3) is
dismissed on contest, but without cost.
10. Accordingly, the revision is disposed of finally.
(A.C. Behera),
Judge.
Orissa High Court, Cuttack.
31.01.2025//Utkalika Nayak//
Junior Stenographer
Signature Not
Verified
Digitally Signed
Signed by: UTKALIKA
NAYAK
Reason: Authentication C.R.P. No.5 of 2022
Location: High Court of
Orissa, Cuttack
Date: 31-Jan-2025
15:14:22
