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Skipper v/s Atma Ram Properties Private Limited

    Civil Miscellaneous (Main) Appeal No. 226 of 1994
    Decided On, 14 September 1994
    At, High Court of Delhi
    By, THE HONOURABLE MR. JUSTICE DAVINDER GUPTA
    For the Appearing Parties: A.C. Jain, C.P. Wig, Advocates.


Judgment Text
DAVINDER GUPTA, J.


(1) "the defendant in this petition filed under Art. 227 of the Constitution of India has questioned the order passed on 28. 4. 1994 by Shri Vinay Kumar Khanna, Sub Judge, Delhi in an application under Or. 7r. 11 of the Code of Civil Procedure. S


(2) THE facts in brief are that a suit was filed by the plaintiff-respondent for possession and mesne profits against the defendant-petitioner. After the defendant was served, without filing any written statement, an application under Order 7 Rule 11 of the Code of Civil Procedure was made seeking rejection of the plaint on the ground that proper Court fee has not been affixed on the plaint, therefore, plaint is liable to be rejected. It was alleged that it was a suit for possession treating the defendant to be in un authorised and illegal possession as a trespasser. The suit ought to have been valued for the purposes of Court-fee at the market value of the property, which was about Rs. 2 crores. Plaintiff, however, had valued the suit for purposes of Court-fee at one year's rental value at the rate of Rs-327. 11 p. m. This application was strongly opposed by the plaintiff and on 28. 4. 1994 the following order came to be passed, which is under challenge: "defendant has filed the application under Order 7 Rule 11. Heard. Counsel for the Defendant has submitted that the suit is not maintainable and the Counsel for the plaintiff wants to file the reply. The application under Order 7 Rule 11 be taken as written statement. After hearing the following issue arise: Whether the suit is properly. valued for the purpose of Court-fee and jurisdiction? OP Parties. Now to come up for argument on 10. 5. 94. "


(3) THE ground for challenging the order is that the Court erred in treating the application filed under Order 7 Rule 11 to be a written statement. It was not permissible for the Court to have treated the application as a written statement. It is contended that the impugned order, if allowed, to stand will result in depriving the petitioner a chance for filing written statement. Learned Counsel for the plaintiff-respondent has contended that defendant's act in filing the application without filing written statement is a dilatory tactic merely to further delay the proceedings. It ought to have been rejected as not maintainable or in any case issue ought not to have been framed by the Trial Court. In any case the application ought to have been decided on the averments made in the plaint alone.


(4) AFTER having considered the submissions made by the learned Counsel for the parties, I find that the Trial Court was not at all justified in proceeding to pass the aforementioned order on an application filed under Order 7 Rule 11 of the Code and in treating the said application as a written statement. The Court was also not justified in setting down the issue as regards valuation for trial at this stage. The Court is empowered to reject a plaint on any of the grounds enumerated in Rule 11 of Order 7 of the Code of Civil Procedure. It also cannot be disputed that this power of rejection of the plaint can be exercised by the Court at any stage of the proceedings in a suit. When plaint is filed it is the duty of the Court to see whether the plaint contains necessary allegations disclosing a cause of action, whether proper Court-fee has been affixed, whether the plaint has been written upon sufficiently stamped paper etc. When the defendant asks the Court to decide the issue that plaint does not disclose any cause of action, the defendant must be taken to admit for the sake of arguments that the allegations of the plaintiff in his plaint are true in manner and in form. In order to determine whether suit is properly valued or not the Court must confine its attention to the averments made in the 516 plaint and should not look to the other circumstances, which might influence its judgment as to the true value of the relief sought. Trial of the suit can not be delayed by the defendant by merely moving an application under Order 7 Rule 11 and awaiting its result. After the defendant is duly served, as per Rule 1 of Order 8 of the Civil Procedure Code. he must file written statement and an objection can also be taken by the defendant in the written statement that the plaint is liable to be rejected for any of the grounds enumerated in Order 7 Rule 11 Civil Procedure Code. Piece Meal trial of a suit is not permissible.


(5) AS and when an application is made by the defendant for rejection of the plaint on any of the grounds enumerated in Rule 11 of Order 7 or on any other ground available in law, the said application cannot be treated as a written statement. The Court while passing the impugned order has almost closed the right of the defendant to file written statement by treating the application as a written statement. Question as to whether suit has or has not been properly valued has to be decided on the basis of the averments made in the plaint alone.


(6) IN view of the aforementioned position in law, the impugned order cannot be sustained and is liable to be set aside.


(7) CONSE

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QUENTLY the petition is allowed. The impugned order is set aside. The Trial Court is directed to dispose of the application filed under Order 7 Rule 11 of the Code of Civil Procedure, in accordance with law on the basis of the averments made in the plaint alone. It is made clear that the disposal of the application should not delay further progress of the suit in calling upon the defendant to file its written statement failing which the Court ought to proceed in accordance with law. Parties are directed to appear before the Trial Court on September 27, 1994. Petition allowed.
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