# Bhagwan Shrikrishna Virajman, at Katra Keshav Dev Khewat No. 255 & Ors. Plaintiffs v. U.P. Sunni Central Waqf Board, Lucknow & Ors. Defendants

- **Citation:** (2023) 12 ILRA 191
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-14
- **Case number:** Original Suit No. 1 of 2023
- **Bench:** Mayank Kumar Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwan-shrikrishna-virajman-at-katra-keshav-dev-khewat-no-255-ors-plaintiffs-v-49546
- **Pages:** 22

## Headnote

Civil Law---The Code of Civil Procedure,
1908-Order VII Rule 11 & Order XXVI Rule
9 & 10--- Whether an application for rejection
of plaint should be decided prior to the
application for appointment of commission---
Held--- Application under Order VII Rule 11 of
the Code can only be decided once the plaintiffs
filed their objections against it. Merely because
an application for rejection of plaint is filed on
the date of hearing and prayer is made that it is
decided first in order does not necessarily mean
that such request be accepted in the facts of
this case There is no, express or implied, bar in
the Code prohibiting the court from deciding an
application, otherwise ripe for hearing, only
because an application for rejection of plaint is
pending--- In the proceedings for appointment
of commission by the Court, the defendants can
participate. Moreover, if they feel aggrieved by
the report of the commission, they have an
opportunity to file their objections. The report
filed by the commissioner is always subject to
evidence of the parties and is admissible in
evidence. The commissioners are competent
witness and they may be called for evidence
during the trial, if desired by any party to the
suit. The other party will always have an
opportunity to cross examine them---Prayer for
appointment of commission by the plaintiffs
192 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot be refused on the ground that it is filed
after delay of almost three years--- the
application moved by plaintiffs under Order
XXVI Rule 9 & 10 read with section 151 of the
Code deserved to be allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,915 of 74,456. This is a partial read: ask again with offset=39915 for what follows._

12 All. Bhagwan Shrikrishna Virajman, at Katra Keshav Dev Khewat No. 255 & Ors. Vs. U.P.
 Sunni Central Waqf Board, Lucknow & Ors.
191
resentment and dissatisfaction to those
who are waiting for justice from before.
It should be exercised only when it comes
to the notice of this Court that Judge in
seisin of the case is purposely avoiding to
dispose of the suit for any oblique
motive, which may defeat the justice. An
order for expeditious disposal in a routine
manner can not be countenanced.

4. We hasten to add that even in
such kind of cases, ordinarily this Court
would relegate the petitioner to the remedy
before the Court in seisin of the lis to take
appropriate decision, as it is that Court
which can consider the matter in totality of
the circumstances."

10. In view of the above, this Court is
not inclined to grant the relief prayed for by
the petitioner at this stage. However, the
Court finds that the petitioner has already
moved the Court below by moving an
application
(Paper
No.
16-C)
for
expeditious disposal of the suit proceedings
taking into consideration that the petitioner
is a Senior Citizen of 79 years of age. In the
opinion of the Court the petitioner can be
disposed off by requiring the Court to pass
suitable orders thereon.

11. Accordingly, the petition is
disposed off by requiring the Civil Judge
(Junior Division), 6th Mathura, seized with
the Application for expeditious disposal
(16-C) to consider and pass appropriate
orders thereon on the next date fixed in the
suit or within a reasonable time.
----------
(2023) 12 ILRA 191
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2023

BEFORE

THE HON'BLE MAYANK KUMAR JAIN, J.
Original Suit No. 1 of 2023

Bhagwan Shrikrishna Virajman, at Katra
Keshav Dev Khewat No. 255 & Ors.
 ...Plaintiffs
Versus
U.P. Sunni Central Waqf Board, Lucknow &
Ors. ...Defendants

Counsel for the Plaintiffs:
Sri Devki Nandan Sharma, Sri Prabhash
Pandey, Sri Pradeep Kumar Sharma, Sri
Vishnu Shanker Jain, Sri Shaurya Krishan,
Ms. Reena N. Singh, Sri Hari Shanker Jain
(Sr. Advocate)

Counsel for the Defendants:
Sri Nasiruzzaman, Sri Gulrez Khan, Sri
Mahmood Pracha, Sri Hare Ram, Sri
Kamlesh Narayan Pandey, Sri Birendra
Prasad Maurya, Sri Punit Kumar Gupta

Civil Law---The Code of Civil Procedure,
1908-Order VII Rule 11 & Order XXVI Rule
9 & 10--- Whether an application for rejection
of plaint should be decided prior to the
application for appointment of commission---
Held--- Application under Order VII Rule 11 of
the Code can only be decided once the plaintiffs
filed their objections against it. Merely because
an application for rejection of plaint is filed on
the date of hearing and prayer is made that it is
decided first in order does not necessarily mean
that such request be accepted in the facts of
this case There is no, express or implied, bar in
the Code prohibiting the court from deciding an
application, otherwise ripe for hearing, only
because an application for rejection of plaint is
pending--- In the proceedings for appointment
of commission by the Court, the defendants can
participate. Moreover, if they feel aggrieved by
the report of the commission, they have an
opportunity to file their objections. The report
filed by the commissioner is always subject to
evidence of the parties and is admissible in
evidence. The commissioners are competent
witness and they may be called for evidence
during the trial, if desired by any party to the
suit. The other party will always have an
opportunity to cross examine them---Prayer for
appointment of commission by the plaintiffs
192 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot be refused on the ground that it is filed
after delay of almost three years--- the
application moved by plaintiffs under Order
XXVI Rule 9 & 10 read with section 151 of the
Code deserved to be allowed. (E-15)

List of Cases cited:

1. R.K. Roja Vs U.S. Rayudu, AIR 2016 SC 3282

2. Smt. Archana Kanaujia & anr.Vs Pooja
Educational and Social Development Trust &
ors., 2021 (9) ADJ 549

3. Saleem Bhai Vs St. of Maharashtra (2003) 1
SCC 557

4. Dahiben Vs Arvindbhai Kalyanji Bhanusali
(Gajra) Dead Through Legal Representatives &
ors., (2020) 7 SCC 366

5. Kum. Geetha, D/o Late Krishna & Ors.
VsNanjundaswamy (Civil Appeal No.7413 of
2023 arising out of S.L.P. (C) No.8147 of 2016

6. Debendranath Nandi Vs Natha Bhuiyan, AIR
1973 Ori

7. C/M Anjuman Intezamia Masajid Varanasi Vs
Rakhi Singh & ors., 2022 SCC Online All 396

8.
MATTER
UNDER
ARTICLE
227
NO.4984/2023, Sri Krishna Janam Bhumi Mukti
Nirman
Trust
Vs
Shahi
Masjid
Idgah
Management Committee and 8 others

9. Anwar Batcha & anr. Vs S. Mahuedoom, 2014
SCC Online Mad. 642

(Delivered by Hon'ble Mayank Kumar
Jain, J.)

1. Heard Sri Hari Shanker Jain,
learned Senior Counsel through video
conferencing, Sri Vishnu Shanker Jain
assisted by Sri Shaurya Krishan, Advocate,
Sri Prabhash Pandey, Pradeep Kumar
Sharma, learned counsel for the plaintiffs.
Ms. Reena N. Singh, learned counsel for
the plaintiffs in Original Suit No.7/2023.

2. Heard Sri Punit Kumar Gupta,
learned counsel for defendant no.1. Sri
Nasiruzzaman and Sri Mahmood Pracha
learned counsel for defendant no.2. Sri
Hare Ram, Advocate for defendant no.3.
Sri Kamalesh Narayan Panday and Sri
Birendra Prasad Maurya, Advocates for
defendant no. 4.

3. Heard learned counsel for the
parties at length on the following issues:-

a) Whether an application for
rejection of plaint should be decided prior
to the application for appointment of
commission .

b) Application for appointment of
commission under Order XXVI Rule 9 &
10 of the Code of Civil Procedure 1908
(Application No.130C)

4. With reference to the facts of
the case, it is stated by plaintiffs in their
plaint that:-

(a) Lord Shri Krishna is the
incarnation of Lord Vishnu. He took birth
in human form on the day of Ashtami in
Krishna Paksh in the month of Bhadrapad
about 5132 years ago in Dwaparyug in the
prison of Mathura, the place known as
'Katra Keshav Dev', in Virishni Kingdom
ruled by King Kans. Every inch of land of
Katra Keshav Dev is sacred for the
devotees of Lord Krishna. Lord Krishna is
world wide worshipped by devotees and
followers of Vedic Sanatan Dharma.

(b) In the year 1618, Raja Veer
Singh Bundela of Orchha built/renovated a
temple at the birth place of Lord Shri
Krishna at Katra Keshav Dev, Mathura.

(c) During the year 1669-70,
Aurangzeb, the Mughal Ruler, partially
demolished the temple of Lord Krishna at
Katra Keshav Dev and forcibly raised a
12 All. Bhagwan Shrikrishna Virajman, at Katra Keshav Dev Khewat No. 255 & Ors. Vs. U.P.
 Sunni Central Waqf Board, Lucknow & Ors.
193
construction which was named as 'Idgah
Mosque'.

(d) After winning the battle of
Goverdhan, Marathas became the ruler of
entire area of Agra and Mathura. They
removed the structure of the Mosque and
restored/renovated the birth place temple of
Lord Shri Krishna at Katra Keshav Dev.
They also declared the land of Agra and
Mathura as Nazool land.

(e) The East Indian Company
under Lord lake conquered the area of
Mathura and Agra by defeating Maratha
ruler Scindia Army in the year 1803 and
became the ruler of this area since then.
The British Government continued to treat
the land of Agra and Mathura as Nazool
land.

(f) The British Government put
the land measuring 13.37 acres of Katra
Keshav Dev for auction sale through public
auction in the year 1815. Raja Patnimal of
Benaras purchased this land and became
the owner and in possession over this
property.

Number of cases were filed by
Muslims questioning the auction sale,
ownership and possession of Raja Patnimal
but all were dismissed.

(g) In the settlement map of 1860,
the compound was described as Katra
Keshav Dev.

(h) In different court proceedings,
six decrees were passed in favour of Raja
Narsingh Das, the descendant of Raja
Patnimal in respect of property of Katra
Keshav Dev.

(i) The spot was compared
through a survey map in 1903, and it was
numbered as 321. A temple of Ganga Ji
was there.

(j) In 1911, the property of Raja
Patnimal came under court of ward and the
compound of Katra Keshav Dev was
administered by the Collector of Mathura.

(k) In a Civil Suit No. 76 of 1920
which was filed by the Muslims, it held that
the disputed land did not belong to the
Mosque
and
Hindu
defendant
were
building a temple upon the site of
previously existing temple. This suit was
dismissed. Against this judgement and
order, First Appeal No. 236 of 1921 was
also dismissed.

(l) Thereafter in Civil Suit No.
517 of 1928 filed by Rai Kishan Das the
heir of Raja Patnimal, a dispute was raised
whether the plaintiff was the owner of the
land and the material lying thereupon. The
suit was decreed by the Trial Court and the
judgment was affirmed by the First
Appellate Court in favour of the plaintiff.
The second appeal no. 691 of 1932 was
dismissed. It was held that Raja Patnimal
and his heirs were rightful owner of 13.37
acres of land of Katra Keshav Dev and
Muslims had no right over any part of the
said land.

(m) On 08.02.1944, Rai Kishan
Das and Rai Anand Das, legal heirs of Raja
Patnimal, executed the sale deed of 13.37
acres land of Katra Keshav Dev in favour
of Mahamana Pandit Madan Mohan
Malviya, Goswami Ganesh Dutt and
Bhikenlal Ji Aattrey for a consideration of
Rs.13,400/-. This consideration which was
paid by Sri Jugal Kishore Birla. Pursuant to
execution of sale deed, the purchasers came
into the possession of entire land of Katra
Keshav Dev.

(n) Suit No. 4 of 1946 was filed
on
behalf
of
Masjid
Idgah
against
Mahamana Pandit Madan Mohan Malviya
and others questioning the sale deed and
claiming the right of pre- emption. The suit
was dismissed on the basis of compromise
holding
that
the
judgement
dated
02.12.1935 passed by the Hon'ble High
Court in second appeal no. 691 of 1932
would be binding on the parties.
194 INDIAN LAW REPORTS ALLAHABAD SERIES

(o) Shri Jugal Kishore Birla in
order to construct a glorious temple at
Katra Keshav Dev glorifying the birthplace
of Lord Shri Krishna created a trust in the
name of 'Shree Krishna Janambhoomi
Trust' on 21.02.1951 through trust deed
registered on 09.03.1951. The entire
property of 13.37 acres of Katra Keshav
Dev was vested in the trust. He dedicated
the entire land to deity Lord Shri Krishna
Virajman with the object to construct a
grand temple.

(p) The said trust failed to
perform its duty to secure, preserve and
protect the trust property. It became defunct
from 1958.

(q) On 01.05.1958, a society
known as 'Shri Krishna Janam Sthan Seva
Sangh' was formed and after 1977 the word
'Sangh' was substituted with the word
'Sansthan'.

(r) The society was different
entity from the trust. It had no power or
jurisdiction to act on behalf of the trust.
The trust had no authority to transfer,
delegate or entrust any work to the society
to perform.

(s) Civil Suit No. 361 of 1951
was filed by Muslims against Sri Krishna
Janambhoomi Trust claiming cause of
action on the basis of sale deed executed by
alleged Trust Masjid Idgah in their favour.
The suit was dismissed and it was held that
the sale deed was executed without any
authority and same was illegal.

(t) Suit No. 43 of 1967 titled as
Shri Krishna Janam Sthan Sewa Sangh
Mathura also known as Shri Krishna
Janambhoomi Trust was filed which was
verified by Shri Bhagwan Das Bhargava as
Joint Secretary of Shri Krishna Janam
Sthan Sewa Sangh.

The said suit was not filed by
'Shri Krishna Janambhoomi Trust' but it
was filed by the society namely 'Shri
Krishna
Janam
Sthan
Sewa
Sangh
Mathura'. The prayer was to remove the
super structure raised by Masjid Idgah
Trust and others.

(u) On 12.10.1968 a compromise
was entered between Shri Krishna Janam
Sthan Seva Sangh Mathura and Trust
alleged Shahi Masjid Idgah, Mathura. The
compromise was presented on 17.10.1968
and was registered on 22.11.1968 by SubRegistrar Mathura. The compromise was
filed in the court of Civil Judge Mathura in
Civil Suit No. 43 of 1967. This suit was
decreed on the basis of compromise on
20.07.1973.

(v) Shri Krishna Janam Sthan
Sewa Sangh had no propriety or ownership
right in the property of Katra Keshav Dev
which stood vested in the deity and the
Trust. Shri Krishna Janam Sthan Sewa
Sangh had no power or authority to file the
Suit No. 43 of 1967. Thus, the compromise
entered into between Shri Krishna Janam
Sthan Sewa Sangh and Trust alleged Shahi
Masjid Idgah is illegal and void ab initio
and the same is not binding on the deities
and the devotees.

(w) An application numbered as
Misc. Case No. 234 of 1993 was filed
under Section 92 of the CPC before learned
District Judge, Mathura to institute suit
inter alia praying to remove defendant no.
1 to 6 from trusteeship. The application for
permission was rejected by the learned
District Judge on 06.05.1994. First Appeal
No. 199 of 1996 was also dismissed on
23.09.1997 by the Hon'ble Allahabad High
Court holding that the entire property of
Katra Keshav Dev vested in Trust and Shri
Krishna Janam Sthan Sewa Sansthan could
not represent the Trust.

5. The instant suit registered as
Original Suit No. 353 of 2020 titled as
Bhagwan Shri Krishna Virajman at Katra
12 All. Bhagwan Shrikrishna Virajman, at Katra Keshav Dev Khewat No. 255 & Ors. Vs. U.P.
 Sunni Central Waqf Board, Lucknow & Ors.
195
Keshav Dev and Others Vs. U.P. Sunni
Central Waqf Board through Chairman and
others, is now transferred to this Court and
is registered as Original Suit No. 01 of
2023. The reliefs claimed by plaintiffs are
that :-

(a) decree the suit in favour of
plaintiffs against the defendants cancelling
the judgment and decree dated 20.07.1973
and
judgement
and
decree
dated
07.11.1974 passed in Civil Suit No. 43 of
1967 by Civil Judge, Mathura;

(b) declare that the judgment and
decree dated 20.07.1973, judgment and
decree dated 07.11.1974 passed in Civil
Suit No.43 of 1967 by Civil Judge,
Mathura is not binding on the plaintiffs;

(c) decree the suit for declaration
declaring that land measuring 13.37 acres
of Katra Keshav Dev, shown by letters A B
C D in the site plan, vest in the deity Lord
Shri Krishna Virajman;

(d) decree the suit for mandatory
injunction in favour of the plaintiffs and
against the defendant no.1 and 2 directing
them to remove the construction raised by
them encroaching upon the land shown by
letters E B G F in the site plan within the
area of Katra Keshav Dev, Mathura and to
hand over vacant possession to Shri
Krishna Janambhoomi Trust within the
time provided by this Hon'ble Court;

(e) decree the suit for prohibitory
injunction restraining defendant no.1 and 2,
their workers, supporters, men, attorneys
and every person acting under them from
entering into premises of 13.37 acres land
of Katra Keshav Dev City District
Mathura;

Disposal of issue no. a)

6. Defendant No. 1 and 2 have filed
separate applications under Order VII Rule
11(D) read with Section 151 of the Civil
Procedure Code (hereinafter referred to as
'Code'). The learned counsel for defendant
no.1 and 2 have submitted that the suit of
the plaintiffs is barred by law under
provisions of various statutes which are set
out as under:-

(a) Section 3(A) of the Code;
 (b) Section 3, 4, 6 and 7 of Places
of Worship (Special Provisions) Act, 1991;

(c) Section 6, 85 &108A of The
Waqf Act, 1995;

(d) Section 58 of the Limitation
Act, 1963; and

(e) Section 34 of the Specific
Relief Act, 1963.

In view of the above, it is argued that
the plaint deserves to be rejected.

7. Copies of the aforesaid applications
were provided to learned counsel for the
plaintiffs and as prayed by them they were
accorded an opportunity to file their
objections.

8. The learned counsel for the
defendant No. 1 and 2 argued that once an
application is filed under Order VII Rule 11
of the Code, it should be decided first. The
object of this provision is to reduce the
burden of the Courts which are already
overburdened. Apart from this, another
object of this provision is to save the time
of the Court. The provision of Order VII
Rule 11 of the Code imposes a bar upon the
Court to not proceed further without
deciding upon the issues raised by the
defendant by way of an application.

9. In order to support his arguments,
learned counsel for the defendant no.1 and
2 placed heavy reliance upon the judgment
of the Hon'ble Apex Court passed in R.K.
Roja v. U.S. Rayudu, AIR 2016 SC 3282.
196 INDIAN LAW REPORTS ALLAHABAD SERIES
It is submitted that the observation made by
the
Hon'ble
Apex
Court
are
fully
applicable in the present proceedings. The
following paragraphs of the said judgment
are referred:-

"6. Once an application is filed
under Order 7 Rule 11 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 v. State of
Maharashtra [Saleem Bhai v. State of
Maharashtra, (2003) 1 SCC 557] ). But
once an application for rejection is filed,
the court has to dispose of the same before
proceeding with the trial court. To quote
the relevant portion from para 20 of Sopan
Sukhdeo Sable case [Sopan Sukhdeo Sable
v. Charity Commr., (2004) 3 SCC 137] :
(SCC pp. 148-49)

"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."

9. The procedure adopted by the
court is not warranted under law. Without
disposing of an application under Order 7
Rule 11 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."

10. Reliance is also placed on the
judgment of Smt. Archana Kanaujia and
Anr. Vs. Pooja Educational and Social
Development Trust and Others, 2021 (9)
ADJ 549. The learned counsel for the
defendant no. 1 and 2 submitted that the
powers conferred under Order VII Rule 11
obviate the Courts from taking a full fledge
trial when the plaint does not disclose cause
of action or is otherwise barred by any law.
Following paragraphs are referred:-

"10. The power conferred by
Order VII Rule 11 is primarily to ensure
that a suit which discloses no cause of
action or is otherwise barred in law is
brought to an end at the threshold. This
obviates the courts from undertaking a full
fledged trial and then ultimately coming to
a conclusion either that the plaint discloses
no cause of action or that the jurisdiction
of the court stands ousted by law. The
legislative policy underlying Order VII
Rule 11 was pithily explained by the
Supreme Court in Azhar Hussain Vs. Rajiv
Gandhi reported in 1986 (Supp) SCC 315
in the following terms:-

"12. Learned counsel for the
petitioner has next argued that in any event
the powers to reject an election petition
summarily under the provisions of the Code
of Civil Procedure should not be exercised
at
the
threshold.
In
substance,
the
argument is that the court must proceed
with the trial, record the evidence, and only
after the trial of the election petition is
concluded that the powers under the Code
12 All. Bhagwan Shrikrishna Virajman, at Katra Keshav Dev Khewat No. 255 & Ors. Vs. U.P.
 Sunni Central Waqf Board, Lucknow & Ors.
197
of
Civil
Procedure
for
dealing
appropriately with the defective petition
which does not disclose cause of action
should be exercised. With respect to the
learned counsel, it is an argument which it
is difficult to comprehend. The whole
purpose of conferment of such powers is to
ensure
that
a
litigation
which
is
meaningless and bound to prove abortive
should not be permitted to occupy the time
of the court and exercise the mind of the
respondent. The sword of Damocles need
not be kept hanging over his head
unnecessarily without point or purpose.
Even in an ordinary civil litigation the
court readily exercises the power to reject
a plaint if it does not disclose any cause of
action. Or the power to direct the
concerned party to strike out unnecessary,
scandalous, frivolous or vexatious parts of
the pleadings. Or such pleadings which are
likely to cause embarrassment or delay the
fair trial of the action or which is otherwise
an abuse of the process of law. An order
directing a party to strike out a part of the
pleading would result in the termination of
the case arising in the context of the said
pleading. The courts in exercise of the
powers under the Code of Civil Procedure
can also treat any point going to the root of
the matter such as one pertaining to
jurisdiction
or
maintainability
as
a
preliminary point and can dismiss a suit
without proceeding to record evidence and
hear elaborate arguments in the context of
such evidence, if the court is satisfied that
the action would terminate in view of the
merits of the preliminary point of objection.
The contention that even if the election
petition is liable to be dismissed ultimately
it should be so dismissed only after
recording
evidence
is
a
thoroughly
misconceived and untenable argument. The
powers in this behalf are meant to be
exercised to serve the purpose for which
the same have been conferred on the
competent court so that the litigation comes
to an end at the earliest and the concerned
litigants are relieved of the psychological
burden of the litigation so as to be free to
follow
their
ordinary
pursuits
and
discharge their duties. And so that they can
adjust their affairs on the footing that the
litigation will not make demands on their
time or resources, will not impede their
future work, and they are free to undertake
and fulfil other commitments. Such being
the position in regard to matter pertaining
to ordinary civil litigation, there is greater
reason for taking the same view in regard
to matters pertaining to elections. ........To
wind up the dialogue, to contend that the
powers to dismiss or reject an election
petition or pass appropriate orders should
not be exercised except at the stage of final
judgment after recording the evidence even
if the facts of the case warrant exercise of
such powers, at the threshold, is to contend
that the legislature conferred these powers
without point or purpose, and we must
close our mental eye to the presence of the
powers which should be treated as nonexistent. The court cannot accede to such a
proposition. The submission urged by the
learned counsel for the petitioner in this
behalf must therefore be firmly repelled."

11. Learned counsel for the defendant
no. 1 and 2 further referred the judgment of
Dahiben
Vs.
Arvindbhai
Kalyanji
Bhanusali (Gajra) Dead Through Legal
Representatives and Others, (2020) 7 SCC
366 and has referred following paragraphs;-

"23.15. The provision of order 7
rule 11 is mandatory in nature. It states
that the plaint "shall" be rejected if any of
the grounds specified in clause (a) to (e)
are made out. If the court finds that the
plaint does not disclose a cause of action
198 INDIAN LAW REPORTS ALLAHABAD SERIES
or that the suit is barred by any law the
court has no option but to reject the plaint.

30. The present suit filed by the
Plaintiffs is clearly an abuse of the process
of the court, and bereft of any merit. The
Trial Court has rightly exercised the power
under Order VII Rule 11 CPC, by allowing
the application filed by Respondent Nos. 2
& 3, which was affirmed by the High
Court."

12. Sri Punit Kumar Gupta, learned
counsel appearing on behalf of the
defendant no.1 argued that in the matter of
C/M
Anjuman
Intezamia
Masajid
Varanasi, the Hon'ble Apex Court ordered
transfer of civil suit from the Court of Civil
Judge (Senior Division) to the Court of
District Judge, Varanasi and the court
concerned was directed to decide the
application under Order VII Rule 11 on
priority.

13. Per contra, Learned counsel for
the plaintiffs Sri Hari Shanker Jain assisted
by Sri Vishnu Shanker Jain vehemently
opposed the argument advanced by learned
counsel for defendant no.1 and 2 and
submitted that an application under Order
VII Rule 11 of the Code can be decided at
any stage before the trial. The plaint cannot
be
be
rejected
merely
because
an
application for rejection of plaint is filed by
the defendant without accounting for the
objections of the plaintiff.

14. To buttress his argument on
the issue that the suit of plaintiffs is barred
by certain laws, the learned counsel had
referred to the provision contained in the
Order 14 of the Code. It is submitted that
Rule 5 of the said Order empowers the
Court to frame issue on the basis of
pleadings of the parties and to decide it.
Whether the plaint is barred by certain
laws, it can only be decided after framing a
preliminary issue by the Court. The issue as
to whether the suit is barred by law is a
mixed question of fact and law. The
plaintiffs are yet to file their objections
against
this
application.
Therefore,
application for rejection of plaint cannot be
decided without taking into consideration
the objections of the plaintiffs and without
giving an opportunity of being heard.

15. To bolster his submissions, the
learned counsel for the plaintiffs stated that
the proceedings of issue of commission and
rejection
of
plaint
are
independent
proceedings. The application for rejection
of plaint is to be decided before proceeding
with the trial. The trial has not yet
commenced. Therefore, it is the sole
discretion of the trial Judge to decide the
application independently at any stage
before proceeding with the trial. It is also
submitted there is no straight jacket
formula which has to be followed to decide
the application for rejection of plaint before
the disposal of the application for issue of
commission. The Court has to take decision
by itself and no body can compel the court
to decide the application according to the
wishes of particular party.

16. In support of his arguments, the
learned counsel for the plaintiffs relied
upon the following judgments:

(a) Saleem Bhai Vs. State of
Maharashtra (2003) 1 SCC 557

(b) Dahiben Vs. Arvindbhai
Kalyanji
Bhanusali
(Gajra)
Dead
Through Legal Representatives and
Others, (2020) 7 SCC 366

(c) Kum. Geetha, D/o Late
Krishna & Ors. Vs.Nanjundaswamy
(Civil Appeal No.7413 of 2023 arising out
of S.L.P. (C) No.8147 of 2016
12 All. Bhagwan Shrikrishna Virajman, at Katra Keshav Dev Khewat No. 255 & Ors. Vs. U.P.
 Sunni Central Waqf Board, Lucknow & Ors.
199

(d) C/M Anjuman Intezamia
Masajid Varanasi Vs. Rakhi Singh and
Others, 2022 SCC Online All 396

17. Heavy reliance is placed upon the
judgment of Saleem Bhai (supra) by the
learned counsel for the plaintiffs and it is
submitted that trial court can exercise the
power under Order VII Rule 11 of the Code
at any stage of the suit even at any time
before the conclusion of the trial. The
following paragraph of the judgment is
referred:-

"9. A perusal of Order VII Rule
11 C.P.C. makes it clear that the relevant
facts which need to be looked into for
deciding an application thereunder are the
averments in the plaint. The trial court can
exercise the power under Order VII Rule
11 C.P.C. 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
clauses (a) and (d) of Rule 11 of Order VII
C.P.C. 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 VII Rule 11 C.P.C. cannot but be
procedural
irregularity
touching
the
exercise of jurisdiction by the trial court.
The order, therefore, suffers from nonexercising of the jurisdiction vested in the
court as well as procedural irregularity.
The High Court, however, did not advert to
these aspects."

18. Learned counsel for the plaintiffs
further argued that in Dahiben Vs.
Arvindbhai Kalyanji Bhanusali (Gajra)
Dead Through Legal Representatives and
Others (supra) the law laid down by the
Hon'ble Supreme Court in Saleem Bhai
case (supra) has been followed. The
learned counsel has referred the following
paragraph:-

23.14. The power under Order
VII Rule 11 CPC may be exercised by the
Court at any stage of the suit, either before
registering the plaint, or after issuing
summons to the defendant, or before
conclusion of the trial, as held by this
Court in the judgment of Saleem Bhai v.
State of Maharashtra. The plea that once
issues are framed, the matter must
necessarily go to trial was repelled by this
Court in Azhar Hussain (supra).

19. Reliance is placed by learned
counsel for the plaintiffs by referring the
following paragraph of the case in Kum.
Geetha, D/o Late Krishna & Ors. Vs.
Nanjundaswamy (supra) that:-

 "23.14 The power under Order 7
Rule 11 CPC may be exercised by the court
at any stage of the suit, either before
registering the plaint, or after issuing
summons to the defendant, or before
conclusion of the trial, as held by this
Court in the judgment of Saleem Bhai v.
State of Maharashtra [Saleem Bhai v. State
of Maharashtra, (2003) 1 SCC 557] . The
plea that once issues are framed, the matter
must necessarily go to trial was repelled by
this Court in Azhar Hussain case [Azhar
Hussain v. Rajiv Gandhi, 1986 Supp SCC
315.
Followed
in
Manvendrasinhji
Ranjitsinhji Jadeja v. Vijaykunverba, 1998
SCC OnLine Guj 281 : (1998) 2 GLH
823]."

20. A straight forward argument is
made by the learned counsel for the
plaintiffs that the plaint is to be read
200 INDIAN LAW REPORTS ALLAHABAD SERIES
meaningfully as a whole. Upon such
reading if the plaint discloses a cause of
action then the application for rejection of
the plaint must be dismissed.

21. Sri Vishnu Shanker Jain,
learned
counsel
for
the
plaintiffs
vehemently argued that in a similar matter
relating
to
C/M
Anjuman
Intezamia
Masajid Varanasi, this issue came up
before this Court in C/M Anjuman
Intezamia Masajid Varanasi Vs. Rakhi
Singh and Others (supra). He referred the
following
paragraph
to
support
his
argument:-

"23. The challenge to the order
dated 05.04.2022 is also not well-founded,
because
it
is
well-known
that
an
application under Order VII Rule 11 of the
Code can be considered at any stage of the
suit if the grounds disclosed by Order VII
Rule 11 to reject a plaint are made out.
The issue of a commission prior to orders
on a motion under Order VII Rule 11 of
the Code is no more than a matter of
priority in the discretion of the Trial
Court. The learned Trial Judge has not
declined to decide the motion under Order
VII Rule 11 of the Code, but merely said
that the applications bearing paper Nos. 13
and 28 would be decided first in order. This
is not a matter that this Court can be
invited to interfere with, in the exercise of
its jurisdiction under Article 227 of the
Constitution."

22. Placing heavy reliance upon the
above observation of the Court, Learned
counsel Sri Vishnu Shankar Jain submitted
that in the present case also the court is not
declining for hearing and disposing of the
application of the defendants 1 and 2. Their
application would be heard once the
objections against it are brought on record
by
the
plaintiffs.
He
firmly
but
submissively urged that the application for
rejection of the plaint does not raise any
impediment to decide his application to
appoint the commission.

23. He further submitted that so far as
the argument of learned counsel for
defendant no.1 and 2 referring to paragraph
23.15 of Dahiben (supra) is concerned, it
is a general principle that has to be
followed by the Court while deciding the
application under Order VII Rule 11of the
Code. He argued that so far as the argument
advanced by learned counsel Sri Punit
Kumar Gupta that the Hon'ble Apex Court
directed the District Judge, Varansi to
decide the application under Order VII
Rule 11 of the Code on priority basis is
concerned, in the case, by that time the
report of Advocate Commissioner was
already available on record. Therefore,
these arguments do not support the case of
the defendant no.1 and 2 in the present
matter.

Conclusion

24. Order VII Rule 11 of the Code
provides as under:-

"Rejection of Plaint- The plaint
shall be rejected in the following cases;-

(a) Where it does not disclose a
cause of action;

(b) Where the relief claimed is
undervalued, and the plaintiff, on being
required by the court to correct the
valuation within a time to be fixed by the
court, fails to do so;

(c) where the relief claimed is
properly valued, but the plaint is returned
upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to
12 All. Bhagwan Shrikrishna Virajman, at Katra Keshav Dev Khewat No. 255 & Ors. Vs. U.P.
 Sunni Central Waqf Board, Lucknow & Ors.
201
supply the requisite stamp-paper within a
time to be fixed by the Court, fails to do so;

(d) where the suit appears from
the statement in the plaint to be barred by
any law;

(e) where it is not filed in
duplicate;]

(f) where the plaintiff fails to
comply with the provisions of rule 9:

[Provided that the time fixed by
the Court for the correction of the
valuation or supplying of the requisite
stamp-paper shall not be extended unless
the Court, for reasons to be recorded, is
satisfied that the plaintiff was prevented by
any cause of an exceptional nature from
correcting the valuation or supplying the
requisite stamp-paper, as the case may be,
within the time fixed by the Court and that
refusal to extend such time would cause
grave injustice to the plaintiff.]"

25. This Court does not find any
substance in the submissions made by
learned counsel for the defendant nos. 1
and 2 that the application for rejection of
plaint should be decided first in order.
Admittedly, the application for rejection of
plaint was filed by the defendant no.1 and 2
on the date when the suit was fixed for
hearing and disposal of the application filed
by the plaintiffs for appointment of
commission. An opportunity was accorded
to learned counsel for the plaintiffs to file
their objections against this application.
Priority does not mean that the application of
the defendant no. 1 and 2 for rejection of plaint
should be decided without filing of the
objections against it on behalf of the plaintiffs.
The
application
for
appointment
of
commission, which is pending since prior to
the filing of application for rejection of plaint,
cannot be ignored. The defendant no.1 and 2
have already filed their objections against the
application for appointment of commission.
Trial is yet to be commenced. Only the
defendant no.1 has filed its written statement
on the earlier occasion. As of now, the
application of defendant for rejection of plaint
is not ready. On the contrary, the application
filed for appointment of commission is ready
for adjudication

26. The judgment of Hon'ble Apex
Court passed in Saleem Bhai (supra) is
followed subsequently in the cases Dahiben
case (supra) and in Kum. Geeta (supra). In
these
cases
the
Hon'ble
Apex
Court
consistently held that the power under Order
VII Rule 11 of the Code may be exercised by
the Court at any stage of suit either before
registering the plaint or after issuing summons
to the defendant or before conclusion of the
trial.

27. It is worth reiterating that the
application under Order VII Rule 11 of the
Code can only be decided once the plaintiffs
filed their objections against it. Merely
because an application for rejection of plaint is
filed on the date of hearing and prayer is made
that it is decided first in order does not
necessarily mean that such request be accepted
in the facts of this case There is no, express or
implied, bar in the Code prohibiting the court
from deciding an application, otherwise ripe
for hearing, only because an application for
rejection of plaint is pending. Moreover, the
argument advanced by learned counsel for the
defendant no.1 and 2 is not supported with any
judicial pronouncement.

28. Suffice to mention here that
similar issue was dealt by this Court in
C/M
Anjuman
Intezamia
Masajid
Varanasi
Vs.
Rakhi
Singh
Others
(supra). This Court observed that;-

"The issue of a Commission
prior to orders of motion under Order 7
202 INDIAN LAW REPORTS ALLAHABAD SERIES
Rule 11 of the Code is no more than a
matter of priority in the discretion of the
trial Court. The learned trial Court has
not declined to decide the motion under
Order 7 Rule 11 of the Code, but merely
said that the applications bearing paper
no.13C and 28C would be decided first in
order."

29. In the present matter also the
application for rejection of the plaint shall
be disposed off after filing of the objection
by the plaintiffs and after giving an
opportunity of hearing to parties in
accordance with the law.

30. This Court is reminded about the
procedure being followed in the trial Court
as a matter of policy. When a civil suit is
presented before the Court, an application
is often filed for appointment of Advocate
or Court Amin as commissioner. In such
application, a prayer is made to appoint an
Advocate or Court Amin as commissioner
to effect the service of suit upon defendant,
to inspect the disputed property, to carry
out the measurement of the property by
meets and bounds, to prepare site plan of
the property in suit and to submit its report.
Generally, such application, is considered
without
waiting
for
appearance
of
defendant. This is so as appointment of
commission will not effect the merit of the
case and will not prejudice the right of the
parties to the suit.

31. The limited observation made in
R.K. Roja Vs. U.S. Rayudu and Arn.
(supra) is concerned, the Hon'ble Apex
Court held that once an application is filed
under Order VII Rule 11 of the Code, the
Court has to dispose off the same before
proceeding with the trial. Admittedly, the
trial has not yet commenced in the present
suit. The defendant's, therefore, do not get
any strength for the proposition urged by
them on the strength of this judgement

32. This court is of the view that no
straight jacket formula can otherwise be
adopted or followed for prioritising which
application should be decided first in order.
It
depends
upon
the
fact
and
the
circumstances of the individual case.
Moreover, there is no provision in the Code
which directs the court to give priority to
one application over the other. The
proceedings
for
appointment
of
commission and rejection of plaint are
entirely independent proceedings.

33. In view of the above discussions
and the observation made by the Hon'ble
Apex Court and by this Court, as referred
to above, this Court is of the opinion that
the contentions of the learned counsel for
the defendant no.1 and 2 that their
application for rejection of plaint must be
decided first in order before the disposal of
the
application
for
appointment
of
Commission cannot be accepted.