CASE DETAILS:
| Bench P. S. Narsimha J. Sudhanshu Dhulia J. | Case no. (2023) SCC online SC 1407 | Acts/law CPC order 7 rule 11 |
Introduction:
In the present case KUM GEETHA D/O LATE KRISHNA AND OTHERS v/s NANJUNDASWAMY AND OTHERS an appeal has been filed before the division bench of the apex court wherein assailing the order of the High Court as the said impugned order of high court was erroneous concerning application of rejection of plaint under order 7 rule11 and secondly by rejection of plaint partially.
Facts:
Plaintiff and defendants are the members of Joint Hindu family property (JHFP) owning the properties marked in the schedule A & B of the plaint. It is pertinent to consider that he Karta of the family used to mortgage the family property by executing a nominal sale deed and the possession of JHFP was never partitioned. Plaintiff on finding that the defendant is reluctant for the partition of property and thereafter the plaintiff instituted a suit for partition and separate possession.
Issues:
- What is the correct application of the principle underlying the “rejection of plaint” under order 7 rule 11 of CPC?
- Whether the plaint can be rejected in part?
Contentions:
It was contended by the plaintiff that the concerned property is a joint family property, same was never partitioned and defendant resisted the same therefore plaintiff filed the suit for his claim his right in the concerned suit properties
Defendant filed an application for the rejection of the said plaint by filing an application under 7 rule 11.
Trial court:
Learned trail court was pleased to dismiss the application of defendant under orde 7 rule 11. The said order was challenged before the high court by filing a civil revision petition under section 115 of CPC.
High Court:
Learned high court was pleased to set aside the order of trial court in the revision petition and held as under:
- That the concerned suit land was sold in 1919 via registered sale deed to the defendants and plaintiff only contended that land was reconveyed back to joint family property;
- Plaintiff neither challenged the sale deed of 1919 nor claimed for the declaration.
High court allowed the application under order 7 rule 11 in part concerning the Schedule property A only.
Ration and Finding:
Hon’ble Apex Court relied on Dahiben vs. Arvindbhai Kalyanji Bhanusali (gajra) (2020) 7 SCC 366 and held as under in paragraph no. 7:
“…In simple terms, the true test is first to read the plaint meaningfully and as a whole, taking it to be true. Upon such reading, if the plaint discloses a cause of action, then the application under Order VII Rule 11 of the CPC must fail. To put it negatively, where it does not disclose a cause of action, the plaint shall be rejected…” (read case brief)
Supreme court further held that whether there was a nominal sale deed exist or not that is to be decided based on the averments made in the plaint and document adduced and the same is the matter of trial additionally plaintiff has burden to substantiate the same.
Error in High court order:
It was held that the high court erroneously looked into merits of the case and pre- adjudged the legality of the sale deed which is a matter of trial. High court wrongly anticipated the validity of the sale deed in the revision petition.
Supreme court succinctly undo the order of the high court which allowed the application under order 7 rule11 and restore the suit with respect to the property mentioned in schedule A. Apex court inferred that the High court has prejudicially applied the principle of the application for rejection of plaint under order 7 rule 11. High court can not get into merits of the case in a revision petition where court is considering an application for the rejection of plaint which was dismissed by the trial court.
Rejection of plaint in part:
Court further relied in Madhav Prasad Aggarwal v. Axis Bank Ltd. (2019) 7 SCC 158: wherein the court adjudicated that it is impermissible to rejection the plaint qua any particular portion of the relief claimed in plaint and plaint can rejected as a whole and not in part.
In view of the aforesaid judgment court observed that high court committed error in partially rejecting the plaint in part concerning the property mentioned in schedule A. Such approach is outlawed under order 7 rule 11 of CPC. Court further directed the trial court to conclude the suit expeditiously.
KUM GEETHA, D/O LATE KRISHNA….. Full judgement