ANIL KUMAR SHRIVASTAVA Vs. MUKESH CHAND SAXENA

JUDGEMENT

(1.) BY this writ petition, the petitioner has challenged the order dated 12.09.2012 passed by the trial Court n Civil Suit No. 40/2012 whereby it dismissed the application under Order 7 Rule 11 CPC preferred by the petitioner-defendant No.4.

(2.) THE brief facts of the case is that plaintiff respondent filed a civil suit for permanent injunction against the petitioner-defendant No.4 before the trial Court mentioning therein that the petitioner defendant No.4 has submitted a false affidavit before the respondent defendant No.2 to 4 to get a house or plot allotted to the petitioner defendant No.4. The petitioner had been allotted a plot No.72 in Arogya Nagar, Kota and submitted a false affidavit stating therein that he is having no house or plot. Thereafter, an application under Order 7 Rule 11 CPC had been filed by the petitioner-defendant No.4, which too had been rejected by the trial Court holding that whether the plaintiff is entitled to claim any relief against the defendant No.4 or not, could not be decided at that stage of the suit.

(3.) MR . Ved Prakash learned counsel for the defendant revisionist strenuously argued that the trial Court had fallen in error in disallowing the application of the defendant filed under Order 7 Rule 11 read with Section 151 CPC. He argued that Order 7 Rule 11 lays down an independent remedy available to the defendant to challenge the maintainability of the suit, irrespective of his right to contest the same on merits. He further argued that the language of Order 7 Rule 11 clearly implies and cast a duty on the court to reject the plaint when the same is hit by any of the infirmities provided in the clauses of Order 7 Rule 11 even without intervention of the defendant. He further stressed that the trial court has committed grave error in law in not appreciating that it is not a formal reading of the plaint but a meaningful reading which is required to be undertaken by the court to see whether the plaint discloses a real cause of action or by clever drafting merely an illusion of a cause of action is created. He submits that the plaint averments, taken as a whole does not disclose any cause of action and the plaint is manifestly, vexatious and meritless in the sense of not disclosing a clear right to sue and hence is liable to be rejected.