APPLICATION UNDER ORDER 7 RULE 11CPC - SHOULD BE DECIDED FIRST

INTRODUCTION:

This blog will cover up those precedents wherein it was opined by the court that when an application under order 7 rule 11 CPC that is rejection of plaint is filed the same should be decided first before proceeding with the trial.

APPLICATION UNDER ORDER 7 RULE 11:

An application under order 7 rule 11 under CPC is filed by the defendant in a suit for the dismissal of the suit. Order 7 rule 11 also envisage the grounds for the dismissal of the suit. The one who is filing such application before court has burden of proof to establish and substantiate such ground for dismissal.

If the aforesaid application is allowed same will be considered as decree as stated under section 2 (2), and the same is appealable as decree under section 96 of CPC. An order for the rejection of plaint conclusively determines the rights of the parties.

In a case where application is dismissed and suit is pending for determination of rights of parties the aggrieved person whose application is dismissed can approach the High court under section 115 of CPC which is revision power of High court.

An application under order 7 rule 11 has to be decided by the court as the power under CPC is mandatory and not discretionary for the rejection of plaint when filing defendant is able to establish that the plaint comes under any of the grounds conferred under order 7 rule 11.

POWER TO DISMISS THE SUIT AT THRESHOLD:

When an application for rejection of plaint is filed and court is persuaded to dismiss the plaint based on the averments made in the plaint then court can exercise the said power at the threshold. Such an application should be decided at first whenever same filed by the defendant. The reason behind the same is that no frivolous litigation is protracted and no judicial time is wasted.

Dahiben vs. Arvindbhai Kalyanji Bhanusali: (2020) 7 SCC 366: Court observed as under:

The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.

STAGE FOR ADJUDICATION OF APPLICATION:

Dahiben vs. Arvindbhai (supra): Court also ascertained the stage for the invoking the power and adjudicating the application under order 7 rule 11:

The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra (2003)1 SCC 557.

Saleem Bhai v. State of Maharashtra (2003)1 SCC 557:

Apex court pertinently observed the stage of exercise of power by the court, further when any such application is filed same should be disposed of first otherwise it will lead to procedural irregularity:

9. A perusal of Order 7 Rule 11 CPC 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 7 Rule 11 CPC 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 7 CPC, 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 7 Rule 11 CPC 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.

R.K. Roja v. U.S. Rayudu, (2016) 14 SCC 275:

8. The procedure adopted by the court is not warranted under law. Without disposing of an application under Order 7 Rule 11 CPC, the court cannot proceed with the trial.