KALPESHBHAI DANACHANDBHAI SHAH Vs. ASHVINBHAI LALCHAND SHAH

JUDGEMENT

(1.) This first appeal is at the instance of the original plaintiff and is directed against the order passed by the learned 10 th Additional Senior Civil Judge, Surat, below Exh.1 dtd. 4/2/2021 in the Special Civil Suit No.21 of 2021 by which the Court below rejected the plaint under the provisions of Order 7 Rule 11(d) of the Civil Procedure Code even before issuing summons to the defendants.

(2.) The facts giving rise to this first appeal may be summarized as under:

(3.) Mr. H.J. Karathiya, the learned counsel appearing for the plaintiff vehemently submitted that the Court below committed a serious error in passing the impugned order rejecting the plaint. Mr. Karathiya would submit that the plaint has been rejected relying upon Sec. 41(d) of the Specific Relief Act, 1963 whereas the Court below failed to take into consideration the main relief of declaration sought for in the plaint. According to Mr. Karathiya, the first relief i.e. the declaration with respect to the legality and validity of the instrument would fall within the ambit of Sec. 31 of the Act, 1963. He would argue that even if the second part of the relief as prayed for is barred by Sec. 41(d) of the Act, 1963, the plaint could not have been rejected as a whole. He would argue that Order 7 Rule 11 of the Civil Procedure Code enables the Court to reject the plaint in certain cases. However, what is contemplated by the provisions of Order 7 Rule 11 is that the plaint as a whole is open to rejection. Even if one of the reliefs sought by the plaintiff cannot be rejected under the provisions of Order 7 Rule 11, the plaint as such cannot be rejected. In such circumstances referred to above, Mr. Karathiya, prays that there being merit in his appeal, the same may be allowed and the impugned order be quashed and set aside.