SANTOSH Vs. MURARILAL

JUDGEMENT

(1.) THIS is a revision filed by the defendants under Section 115 of CPC seeking to challenge an order dated 5-4-99 passed by 10th Civil Judge, Class II, Indore in C. O. S. No. 71/97.

(2.) IN a pending suit filed by the respondents/plaintiffs, the petitioners/defendants made an application under Order 7 Rule 11 raising certain objections therein and contending that suit be dismissed at its threshold on the basis of the objections so raised by them in the said application. It is this application which came to be rejected by the learned Trial Judge on the ground that these objections can be raised in the written statement. It is against this order the defendants have come up in revision.

(3.) THIS question has been examined by Their Lordships of Supreme Court in the case of Saleem Bhai and Ors. v. State of Maharashtra and Ors. , reported in (2003) 1 SCC 557. Indeed the law remains no longer res integra and stands settled by following observations :-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 Rule 11 (a) and (d) 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 can not but be procedural irregularity touching the exercise of jurisdiction by the Trial Court. The Trial Court's order, therefore, suffers from non-exercising of the jurisdiction vested in the Court as well as procedural irregularity. The cases are, therefore, remitted to the Trial Court for deciding the application under Order 7 Rule 11, CPC on the basis of the averments in the plaint, after affording an opportunity of being heard to the parties in accordance with law.