R K ROJA Vs. U S RAYUDU & ANR

Code Of Civil Procedure, 1908 (CPC)

Section 11 - Res judicata

Tags Res Judicata Election

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 5540 of 2016, Judgment Date: Jul 04, 2016

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5540 OF 2016
(Arising out of S.L.P.(C) No. 15474 of 2016)

R. K. ROJA ... APPELLANT (S)

VERSUS

U. S. RAYUDU AND ANOTHER ... RESPONDENT (S)

J U D G M E N T

KURIAN, J.:

Leave granted.

The appellant has two grievances - (i) The Court has not disposed of an
application filed by her under Order VII Rule 11 of The Code of Civil
Procedure, 1908 (hereinafter referred to as ‘the Code’) for rejection of
the Election Petition and the same has been posted along with the main
petition and (ii) She is denied an opportunity to file written statement.
The first respondent herein filed an Election Petition challenging the
election of the appellant to the 289 Nagiri Assembly Constituency.
Appellant was declared elected on 16.05.2014. The election petition is
dated 30.06.2014. On receipt of notice in the Election Petition, the
appellant filed Annexure-P/4-application for rejection of the Petition,
under Order VII Rule 11 of the CPC by way of a counter affidavit. It
appears that the court declined to consider the same on the ground that
there was no formal application and hence proceeded with the trial. At that
stage, appellant filed Annexure-P/5-formal application for rejection of the
Election Petition on the ground that the Election Petition did not disclose
any cause of action. That application as per the impugned order dated
27.04.2016 was posted along with the main petition, and thus, the appeal.
The High Court has taken the view that the same “was not filed at the
earliest opportunity” and that appellant was not diligent in prosecuting
the application. Therefore, the court took the view that … “this
application filed by the first respondent shall be decided at the time of
final hearing …”.
We are afraid that the stand taken by the High Court in the impugned order
cannot be appreciated. An application under Order VII Rule 11 of the CPC
can be filed at any stage, as held by this Court in Sopan Sukhdeo Sable and
others v. Assistant Charity Commissioner and others[1] … “The trial court
can exercise the power 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. …”. The only restriction is that the consideration
of the application for rejection should not be on the basis of the
allegations made by the defendant in his written statement or on the basis
of the allegations in the application for rejection of the plaint. The
court has to consider only the plaint as a whole, and in case, the entire
plaint comes under the situations covered by Order VII Rule 11 (a) to (f)
of the CPC, the same has to be rejected.
Once an application is filed under Order VII Rule 11 of the CPC, the court
has to dispose of the same before proceeding with the trial. There is no
point or sense in proceeding with the trial of the case, in case the plaint
(Election Petition in the present case) is only to be rejected at the
threshold. Therefore, the defendant is entitled to file the application for
rejection before filing his written statement. In case, the application is
rejected, the defendant is entitled to file his written statement
thereafter (See Saleem Bhai and others v. State of Maharashtra and
others[2]). But once an application for rejection is filed, the court has
to dispose of the same before proceeding with the trial court. To quote
relevant portion from paragraph-20 of Sopan Sukhdeo Sable case (supra):

“20. … Rule 11 of Order 7 lays down an independent remedy made available to
the defendant to challenge the maintainability of the suit itself,
irrespective of his right to contest the same on merits. The law ostensibly
does not contemplate at any stage when the objections can be raised, and
also does not say in express terms about the filing of a written statement.
Instead, the word “shall” is used, clearly implying thereby that it casts a
duty on the court to perform its obligations in rejecting the plaint when
the same is hit by any of the infirmities provided in the four clauses of
Rule 11, even without intervention of the defendant. …”

In Saleem Bhai case (supra), this Court has also held that … “A direction
to file the written statement without deciding the application under Order
VII Rule 11 cannot but be a procedural irregularity touching the exercise
of jurisdiction of the trial court.” However, we may hasten to add that
the liberty to file an application for rejection under Order VII Rule 11 of
the CPC cannot be made as a ruse for retrieving the lost opportunity to
file the written statement.
Apparently, in the present case, it is seen that Annexure-P/4-Affidavit
dated 15.03.2015, with a prayer … “to dismiss the present Election Petition
under Order VII Rule 11 of the CPC…”, was filed within thirty days of the
receipt of the summons in the Election Petition. However, the court was not
inclined to consider the same in the absence of a formal application, and
thus, Annexure-P/5-Application No. E.A. No. 222 of 2016 was filed on
22.02.2016 leading to the impugned order, posting the application for
consideration at the time of final hearing.
The procedure adopted by the court is not warranted under law. Without
disposing of an application under Order VII Rule 11 of the CPC, the court
cannot proceed with the trial. In that view of the matter, the impugned
order is only to be set aside. Ordered accordingly.
However, the concern expressed by the High Court with regard to the alleged
attempt on the part of the appellant for delaying the trial of the Election
Petition cannot be brushed aside. Therefore, we have heard the learned
Senior Counsel appearing for the appellant on the application under Order
VII Rule 11 of the CPC. We are satisfied that the said Application does not
come within the purview of any of the situations under Order VII Rule 11
(a) to (f) of the CPC. Therefore, the application is rejected. In the
peculiar facts of this case which we have narrated above, the appellant is
given an opportunity to file written statement in the Election Petition
within two weeks from today.
Since the Election Petition has been pending before the High Court since
2014, we request the High Court to dispose of the same before the end of
this year.
The appeal is disposed of accordingly.

........................................J.
(KURIAN JOSEPH)

......………………………………J.
(ROHINTON FALI NARIMAN)
New Delhi;
July 4, 2016.

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[1] (2004) 3 SCC 137
[2] (2003) 1 SCC 557

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REPORTABLE

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