Patna High Court
Rabindra Prasad Yadav @ Rabindra Kumar vs Sudama Devi on 10 April, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.848 of 2023
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Rabindra Prasad Yadav @ Rabindra Kumar Son of Dasrath Prasad Yadav
Resident of Village Badgaon tola Chandabigha, P.O. Bangaon, Via Sirdalla,
P.S. Sirdalla Dist. Nawadah, at Present Residing at Village Babani Nagma
P.O. Sirdalla, Dist. Nawadah.
... ... Petitioner/s
Versus
1. Sudama Devi Wife of Jagdish Prasad Yadav (Daughter of Gursahay Mahto),
Resident of Kendua, P.O. G.B. Kendua, P.S. Sirdalla, Dist. Nawadah at
Present residing at Village Babani Nagma, P.O. Sirdalla, P.S. Sirdalla,
Distirct Nawadah.
2. Jagdish Prasad Son of Late Haridas Yadav @ Hari Mahto Resident of
Kendua, P.O. G.B. Kendua, P.S. Sirdalla, Dist. Nawadah at Present residing
at Village Babani Nagma, P.O. Sirdalla, P.S. Sirdalla, Distirct Nawadah.
3. Prayag Prasad Yadav Son of Late Kishun Mahto Resident of Village
Babhani Nagma, P.O. Sirdalla, P.S. Sirdalla, District-Nawadah.
4. Chamari Prasad Yadav Son of Late Kishun Mahto Resident of Village
Babhani Nagma, P.O. Sirdalla, P.S. Sirdalla, District-Nawadah.
5. Chando Prasad Yadav Son of Late Kishun Mahto Resident of Village
Babhani Nagma, P.O. Sirdalla, P.S. Sirdalla, District-Nawadah.
6. Umesh Prasad Yadav Son of Late Gauri Shankar Prasad Resident of Village
Babhani Nagma, P.O. Sirdalla, P.S. Sirdalla, District-Nawadah.
7. Smt. Bachi Devi Wife of Dasrath Yadav (Daughter of Late Gursahay
Mahto), Resident of Village Badgaon tola Chandabigha, P.O. Bangaon, Via
Sirdalla, P.S. Sirdalla Dist. Nawadah, at Present residing at Village Babani
Nagma P.O. Sirdalla, Dist. Nawadah.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Ray Saurabh Nath, Advocate
Mr. Manjari Nath, Advocate
Mrs. Shalini Sinha, Advocate
For the Respondent/s : Mr. S.S. Dwivedi, Sr. Advocate
Mr. Gauri Shankar Prasad, Advocate
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Patna High Court C.Misc. No.848 of 2023 dt.10-04-2025
2/6
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 10-04-2025
Heard learned counsel for the petitioner as well as
learned senior counsel for the respondent 1st set.
2. The petitioner is aggrieved by the order dated
19.07.2023
passed by learned Munsiff, Nawada in Title Suit No.
45 of 2017 whereby and whereunder the learned trial court
ordered that the petition dated 05.04.2018 filed by the petitioner
under Order VII Rule 11(a) and (d) of the Code of Civil
Procedure (hereinafter referred to as 'the Code') would be
decided on its merits after recording of evidence.
3. Learned counsel for the petitioner submits that the
petitioner is the defendant before the learned trial court and
respondent 1st set are the plaintiffs. The defendant/petitioner
filed an application on 05.04.2018 under Order VII Rule 11 (A)
& (D) of the Code for rejection of the plaint. After detailed
hearing, the learned trial court did not pass any orders on the
petition filed by the petitioner. Learned counsel submits that the
learned trial court refusing to pass any orders on petition filed
under Order VII Rule 11 and making it subject to recording of
evidence is a completely illegal order. On this aspect, the
learned counsel relies on the decision of the Hon'ble Supreme
Court in the case of R.K. Roja vs. U.S. Rayudu & Ors., reported
Patna High Court C.Misc. No.848 of 2023 dt.10-04-2025
in AIR 2016 SC 3282 and the case of Saleem Bhai & Ors. vs.
State of Maharashtra & Ors., reported in AIR 2003 SC 759
wherein the Hon'ble Supreme Court held that without disposing
of the application under Order VII Rule 11 of the Code, the
court cannot proceed with the trial. In the case of Saleem Bhai
& Ors. (supra), it has been held that a direction to file the
written statement without deciding the application under Order
VII Rule 11 of the Code cannot but be procedural irregularity
touching the exercise of jurisdiction of the trial court. Learned
counsel, thereafter, has addressed the Court on the different
aspects of the matter touching upon the merits of the case but
this Court is not inclined to consider those arguments at this
stage for the simple reason that what is under challenge before
this Court is the legality of the impugned order as to whether the
learned trial court was justified in keeping on hold an
application filed under Order VII Rule 11 (a) & (d) of the Code.
4. Mr. S.S. Dwivedi, learned senior counsel appearing
on behalf of the respondents submits that the learned trial court
has considered the contention of the defendant/petitioner and
came to a finding that the plaint contains sufficient cause of
action and has also held that issue of limitation at this stage
could not be decided since it is a mixed question of fact and law.
Patna High Court C.Misc. No.848 of 2023 dt.10-04-2025
Mr. Dwivedi further submits that the bare reading of the
impugned order shows that the application filed by the
defendant/petitioner has been effectively disposed of. Learned
senior counsel further submits that answer of every question
cannot be in black and white and by implication it should be
inferred that the application dated 05.04.2018 has been decided
by the learned trial court. Thus, he submits that there is no
infirmity in the impugned order.
5. I have given my thoughtful consideration to the
rival submission of the parties. It is not in doubt that an
application under Order VII Rule 11 of the Code can be filed at
any stage and the decisions cited by the learned counsel for the
petitioner, namely, R.K. Roja (supra) and Saleem Bhai & Ors.
(supra) are exactly on the point that if an application has been
filed under Order VII Rule 11 of the Code, the same needs to be
disposed of prior to deciding any issue involved in the matter.
That is the settled law. Now in the facts of the present case, from
perusal of the impugned order, I find that the learned trial court
has discussed the case of the parties at length but it did not
record any unequivocal finding on the petition dated 05.04.2018
so far as the point of limitation is concerned. Though Mr.
Dwivedi has tried to impress upon this Court that not deciding
Patna High Court C.Misc. No.848 of 2023 dt.10-04-2025
this issue at this stage virtually means rejecting the claim of the
petitioner, the suit being on the ground of limitation, in my view,
the same still requires a declaration by the court and it could not
be simply inferred. For this reason, I am of the opinion that the
learned trial court should have taken pains and disposed of the
application dated 05.04.2018 filed by the petitioner under Order
VII Rule 11 of the Code and should not have postponed it for
deciding it on some future date. The said application under
Order VII Rule 11 of the Code is required to be disposed of
before proceeding further in the matter on the basis of material
available on record and irrespective of the outcome.
6. Therefore, the impugned order dated 19.07.2023
passed by learned Munsiff, Nawadah in Title Suit No. 45 of
2017 suffers from big infirmity and hence, the same is set aside
and the learned trial court is directed to proceed in the matter
and disposed of the application dated 05.04.2018 filed by the
defendant/petitioner under Order VII Rule 11 of the Code at the
earliest and preferably within a month from the date of
receipt/production of a copy of this order. It is made clear that
this Court has not made any observation on the merits of the
case and the application dated 05.04.2018 filed by the
defendant/petitioner will be disposed on the basis of material
Patna High Court C.Misc. No.848 of 2023 dt.10-04-2025
available before the learned trial court strictly in accordance
with law.
7. Accordingly, the present petition stands disposed
of.
(Arun Kumar Jha, J)
balmukund/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 18.04.2025
Transmission Date NA
