Uttarakhand High Court
Corporation Of India vs M/S Kumaon Motor on 26 February, 2021
CLR No. 142 of 2019
Hon'ble Sharad Kumar Sharma, J.
Mr. Subhash Upadhyay, Advocate, for the
revisionist.
Mr. Mahavir Singh Tyagi, Senior Advocate,
assisted by Mr. Bhuvnesh Joshi, Advocate, for the
respondent.
This Civil Revision has been preferred by
the defendant/revisionist, invoking the provisions
contained under Section 115 of CPC, for the
purposes of scrutinisation of the impugned
judgment dated 13.09.2019, which was passed by
the Court of Civil Judge (Senior Division),
Haldwani, District Nainital, as was preferred by
him in Original Suit No. 21 of 2014, Food
Corporation of India Vs. M/s Kumaon Motor
Operators Cooperative Union, whereby the
learned trial Court has rejected the application
under Order 7 Rule 11, where the issue was raised
by the defendant/revisionist, was with regard to the
suit not having any cause of action and that the
said pleading is being sought to be extracted on the
basis of the narration of facts, made in paras 4 and
5 of the plaint.
If the application, which was preferred under
Order 7 Rule 11, itself is taken into consideration,
in fact, it was not giving the foundation of the
arguments, which was, extended pertaining to the
lack of cause of action for institution of the suit
and the same is being sought to be extracted by
virtue of an interpretation which is being given to
para 4 and 5 of the plaint.
The Court has, accordingly, by the impugned
order, has observed that, for the purposes of
determining the application under Order 7 Rule 11,
its an exclusive narration of the plaint, which has
to be taken into consideration, but the argument,
which has been extended, that it required an aspect
of consideration of floating of a tender and its
acceptance it entails a consideration and
appreciation of evidence to be led between the
parties and hence the application under Order 7
Rule 11; could not have been decided at the
threshold even without venturing into the merits of
the suit itself after formulation of the issues,
because I am of the view that the cause of action in
a suit, particularly of the nature in question, would
always entail an appreciation of evidence, which
could only be done by virtue of formulation of an
issue under Order 14, in that regard and in case if
then, if the defendant was dissatisfied with the
formulation of issue, it was open for him to file an
application under Order 14 Rule 4/5, for the
purposes of formulation of an additional issue and
the said provision cannot be substituted by way of
filing of an application under Order 7 Rule 11.
In such an eventuality, the reasoning which
have been given in the impugned order dated
13.09.2019, rejecting the application under Order 7
Rule 11, is upheld and the Revision is dismissed.
But, since this Court has already observed that the
aspect of cause of action, in relation to the suit in
question entails a consideration of facts and an
appreciation of evidence, the dismissal of this
revision will not preclude the defendant to file an
appropriate application before the trial Court, for
the purposes of formulation of an additional issue,
with regard to the lack of cause of action, which
would be adjudicated by the trial Court,
exclusively on its own merits.
Accordingly, subject to the above exception
granted, the revision is dismissed and the LCR,
which was summoned by this Court is directed to
be returned to the trial Court for proceeding
further.
(Sharad Kumar Sharma, J.)
26.02.2021
Mahinder/
