Telangana High Court
M/S Parkus Trading Private Ltd. vs Smt. P.Vijaya Rani And 6 Others on 6 January, 2023
Bench: A.Abhishek Reddy
THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
CIVIL REVISION PETITION No. 2584 of 2022
ORDER:
This Civil Revision Petition, under Article 227 of the
Constitution of India, is filed by the petitioner/defendant No.3
challenging the docket order dated 12.10.2022, passed by the
learned I Additional Junior Civil Judge, Sangareddy, in
O.S.No.978 of 2021.
The learned counsel for the petitioner has stated that the
respondent No.1/plaintiff has filed the suit i.e., O.S.No.978 of
2021 seeking declaration of title, recovery of possession and
consequential injunction. That after receipt of the summons in
the suit, the petitioner/defendant No.3 has filed an I.A under
Order VII Rule 11 r/w Section 151 C.P.C. seeking to reject the
plaint. The said I.A was filed on 19.01.2022 and the respondent
No.1/plaintiff has filed the counter in the said I.A in the month of
September, 2022. However, the trial Court, without adjudicating
the I.A., has passed the impugned docket order in the suit
forfeiting the right of the petitioner/defendant No.3 to file
written statement. The learned counsel has further stated that the
trial Court has grossly erred in passing the impugned docket
order, which is not only contrary to the provisions of the C.P.C
but also the ratio laid down by the Hon'ble Supreme Court in
Church of Christ Charitable Trust & Educational Charitable
Society v. Ponniamman Educational Trust1. It is further stated
that pending adjudication of the I.A. filed by the
petitioner/respondent No.3 under Order VII Rule 11 r/w Section
151 C.P.C, the trial Court ought not to have forfeited the right of
the petitioner/defendant No.3 to file written statement, and
therefore, prayed this Court to set aside the impugned order and
direct the trial Court to dispose of the I.A. at the earliest.
Per contra, the learned counsel for the respondent
No.1/plaintiff has vehemently opposed the very maintainability
of the Civil Revision Petition and stated that the trial Court vide
order dated 21.09.2022 has directed the petitioner/defendant
No.3 to file its written statement and posted the matter to
12.10.2022. That in spite of granting several opportunities, the
petitioner/defendant No.3 has not filed the written statement.
(2012) 8 SCC 706
Therefore, the trial Court, left with no other option, has passed
the impugned docket order forfeiting the right of the
petitioner/defendant No.3 to file written statement. It is further
stated that the petitioner/defendant No.3, without filing any
application before the trial Court seeking to set aside the
impugned docket order, has straightaway approached this Court,
and therefore, prayed this Court to dismiss the present Civil
Revision Petition.
A perusal of the record discloses that the trial Court vide
order dated 21.09.2022 has directed the petitioner/defendant
No.3 to file his written statement and posted the matter on
12.10.2022. The present I.A filed by the petitioner/defendant
No.3 under Order VII Rule 11 read with Section 151 C.P.C. was
numbered by the trial Court and available on record by the date
of passing of the impugned order. Moreover, the respondent
No.1/plaintiff has filed her counter in the I.A on 21.09.2022. But,
the trial Court, without adjudicating the I.A., for the reasons best
known to it, has passed the impugned docket order.
The Hon'ble Supreme Court, in similar circumstances, in
Saleem Bhai v. State of Maharashtra2, has held as under:
"A perusal of Order VII Rule 11 C.P.C. makes it clear that
the relevant facts which need to be looked into for deciding an
application thereunder are the averments in the plaint. The trial
court can exercise the power under Order VII Rule 11 C.P.C. at any
stage of the suit - before registering the plaint or after issuing
summons to the defendant at any time before the conclusion of the
trial. For the purposes of deciding an application under Clauses (a)
and (d) of Rule 11 of Order VII C.P.C. the averments in the plaint
are germane; the pleas taken by the defendant in the written
statement would be wholly irrelevant at that stage, therefore, a
direction to file the written statement without deciding the
application under Order VII Rule 11 C.P.C. cannot but be
procedural irregularity touching the exercise of jurisdiction by the
trial court. The order, therefore, suffers from non-exercising of the
jurisdiction vested in the court as well as procedural irregularity.
The High Court, however, did not advert to these aspects."
Having regard to the judgment referred to above and
having regard to the facts and circumstances of the case, I am of
the considered opinion that the impugned order is liable to be set
aside.
Accordingly, the impugned docket order is set aside and
the Civil Revision Petition is allowed with costs of Rs.1,000/-
(2003) 1 SCC 557
payable by the petitioner to the Telangana State Legal Services
Authority, within a period of four weeks from the date of receipt
of a copy of this order. The trial Court is directed to dispose of
the I.A filed by the petitioner/defendant No.3 under Order VII
Rule 11 read with Section 151 C.P.C. on or before 15.02.2023. In
case the petitioner/defendant No.3 does not cooperate for
disposal of the said I.A., the trial Court can go ahead and pass
appropriate orders on merits.
Pending miscellaneous petitions, if any, shall also stand
dismissed. No order as to costs.
______________________
A.ABHISHEK REDDY, J
Date: 06.01.2023
Note: Issue CC in two days
B/o
va
