# Punjab National Bank Revisionist v. Ikram Khan & Ors. Opp. Parties

- **Citation:** (2024) 8 ILRA 422
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-30
- **Case number:** Civil Revision No. 96 of 2024
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/punjab-national-bank-revisionist-v-ikram-khan-ors-opp-parties-52364
- **Pages:** 7

## Headnote

Law
-
Civil
Procedure
Code,1908 - O. I R. 10 & O. VII R. 11(a)
- Rejection of plaint - No cause of
action
was
shown
against
few
defendant - Remedy available to such
defendant - Held, where there is no
other cause of action against one of the
defendants, but there is cause of action
against other defendants, application
under
Order
VII
Rule
11
is
not
maintainable and suit shall proceed -
Revisionist-defendant is having remedy
to move application to strike out its
name from the array of defendants as
its name has been joined improperly as
neither there is any cause of action
shown nor relief has been claimed
against the revisionist-defendant. (Para
13, 16 and 22)

Revision dismissed. (E-1)

List of Cases cited:

## Text

422 INDIAN LAW REPORTS ALLAHABAD SERIES
of Section 7 (iv-a) of Act, 1870, it is having
money value and court fee is liable to be
paid.
23. Another issue was as to
whether while deciding the application
under Order VII Rule 11 of CPC, defence
was taken care of by the Magistrate or not.
From the perusal of application as well as
impugned order, it is apparently clear that
so far as defence is involved, the court has
not accepted the same, but partly allowed
the application only on the ground of
insufficiency of court fee, which is strictly
in accordance with Order VII Rule 11(C) of
CPC. Therefore, I found no infirmity in the
impugned order on this point also.

24. Not only this, even if there is no
application under Order VII Rule 11 of
CPC, it is required on the part of Court to
see the ingredients of Order VII Rule 11 of
CPC and if it is found, plaint may be
rejected.

25. Apex Court has also taken
similar view in the matter of State of West
Bengal (Supra),. Relevant paragraph is
quoted below:-

"26. In view of the word 'shall'
used in the provisions, a duty is cast on the
court to examine as to whether the plaint is
hit by any of the infirmities provided in the
six clauses of Order VII Rule 11 of the
CPC. A duty is cast on the court to reject
the plaint even without the intervention of
the defendant. Reference in this respect
could be made to the judgment of this
Court in the case of Sopan Sukhdeo Sable
(supra)."

26. Therefore, in the light of law as
well as facts discussed here-in above, I
found no infirmity or illegality in the
impugned order.
27. Writ petition lacks merit and is
accordingly dismissed. No order as to
costs.
----------
(2024) 8 ILRA 422
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2024

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Civil Revision No. 96 of 2024

Punjab National Bank ...Revisionist
Versus
Ikram Khan & Ors. ...Opp. Parties

Counsel for the Revisionist:
Ashok Shankar Bhatnagar

Counsel for the Opp. Parties:
Tarun Agarwal

A.
Civil
Law
-
Civil
Procedure
Code,1908 - O. I R. 10 & O. VII R. 11(a)
- Rejection of plaint - No cause of
action
was
shown
against
few
defendant - Remedy available to such
defendant - Held, where there is no
other cause of action against one of the
defendants, but there is cause of action
against other defendants, application
under
Order
VII
Rule
11
is
not
maintainable and suit shall proceed -
Revisionist-defendant is having remedy
to move application to strike out its
name from the array of defendants as
its name has been joined improperly as
neither there is any cause of action
shown nor relief has been claimed
against the revisionist-defendant. (Para
13, 16 and 22)

Revision dismissed. (E-1)

List of Cases cited:

1. I.T.C. Ltd. Vs Debts Recovery Appellate
Tribunal & ors.; AIR 1998 SC 634
8 All. Punjab National Bank Vs. Ikram Khan & Ors.
423
2. Nandalal N. Verma And Co. Ltd. Vs Alliance
Mills (Leasee) Pvt. Ltd.; (1994)2 CALLT 82 (HC)

3. M. V. "Sea Success I" Vs Liverpool And
London Steamship; 2002(2) BomCR 537.

4. Madhav Prasad Aggarwal & anr. Vs Axis Bank
Ltd. & anr.; 2019 0 Supreme (SC) 870

5. Sejal Glass Ltd. Vs Navilan Merchants Pvt.
Ltd.; 2017 0 Supreme (SC) 1029

6. Balwant Singh Vs The St. Bank of India &
ors.; AIR 1976 Punjab and Haryana 316 (FB)

(Delivered by Hon'ble Neeraj Tiwari, J.)

1.

Heard
Sri
Ashok
Shankar
Bhatnagar,
learned
counsel
for
the
revisionist and Sri Tarun Agarwal, learned
counsel for the opposite party No. 1.

2. Present revision has been filed with
the following prayer:

"Hon'ble court may pleased to
allowed this revision and set aside the
judgment and order dated 16.05.2024 and
its formal order dated 11.05.2024 passed
by Civil Judge(S.D.), Aligarh in O.S. No.
308 of 2023 Ikram Khan Vs. Smt. Amreena
and ors. With costs throughout and may
further be pleased to pass any other order
or orders, grant any other relief or reliefs
and give directions which this Hon'ble
Court may deem fit and proper under the
facts and circumstances on the following
amongst other grounds."

3. Learned counsel for the revisionist
submitted that opposite party No. 1plaintiff has filed Original Suit No. 308 of
2023 and from the perusal of the aforesaid
plaint, no cause of action is made out
against revisionist-defendant No. 5 IInd set,
therefore, revisionist-defendant has filed
application under Order VII Rule 11(a)
CPC to reject the plaint, which was
dismissed vide impugned order dated
16.05.2024. He firmly submitted that once
it is undisputed from the plaint that not a
single word has been written against the
revisionist-defendant,
therefore,
it
is
required for the court to reject the plaint, so
far as it relates to revisionist-defendant. He
next submitted that application under Order
VII Rule 11(a) CPC has been filed on the
ground that no cause of action has arose for
filing of suit against revisionist-defendant
and on this ground alone, plaint is liable to
be rejected, but the court below has not
returned any finding on this point and
dismissed the application under Order VII
Rule 11(a) CPC by the order impugned. In
support of his contention, learned counsel
for the revisionist-defendant has placed
reliance upon the judgment of Hon'ble
Apex Court in the matter of I.T.C. Limited
Vs. Debts Recovery Appellate Tribunal
and others: AIR 1998 SC 634, judgment of
Calcutta High Court in the matter of
Nandalal N. Verma And Co. Ltd. Vs.
Alliance
Mills(Leasee)
Pvt.
Ltd.:
(1994)2CALLT82(HC) and judgment of
Bombay High Court in the matter of M.V.
"Sea Success I" Vs. Liverpool And
London Steamship: 2002(2) BOMCR537.

4. Per contra, Sri Tarun Agarwal,
learned counsel for the opposite party No. 1
vehemently opposed the submission so
made by the learned counsel for the
revisionist-defendant and submitted that
first of all application under Order VII Rule
11(a) CPC has not been filed for rejecting
the plaint only in respect of revisionistdefendant, but it is for rejection of the
whole plaint. He also pointed out that plaint
may not be rejected in particular for one of
the defendants only, either the plaint may
be rejected as a whole or may not be
rejected at all. In support of his contention,
424 INDIAN LAW REPORTS ALLAHABAD SERIES
he placed reliance upon the judgment of
Hon'ble Apex court in the matters of
Madhav Prasad Aggarwal & Anr. Vs. Axis
Bank Ltd. & Anr.: 2019 0 Supreme(SC)
870,
Sejal
Glass
Ltd.
vs.
Navilan
Merchants Pvt. Ltd.: 2017 0 Supreme(SC)
1029, judgment of Full Bench of Punjab
and Haryana High Court in the matter of
Balwant Singh Vs. The State Bank of
India and others: AIR 1976 PUNJAB &
HARYANA 316 FULL BENCH.

5.

I
have
considered
the
submissions advanced by the learned
counsel for the parties and perused the
record as well as judgments relied upon.

6. From the perusal of the plaint, it
is found that there is no allegations against
the revisionist-defendant (Punjab National
Bank) and in light of there being no
allegation, revisionist has filed application
under Order VII Rule 11(a) CPC to reject
the plaint. For ready reference Order VII
Rule
11(a)
CPC
is
being
quoted
hereinbelow:

"11. Rejection of plaint.- The
plaint shall be rejected in the following
cases:-

(a) where it does not disclose a
cause of action;"

7. Learned Judge while deciding the
application has rejected the same on the
ground that from the perusal of the plaint,
there appears to be cause of action against
the revisionist-defendant and rejected the
application vide order dated 16.05.2024. In
the impugned order, court has not returned
any finding as to whether, in case there is
no cause of action against the revisionistdefendant set as shown in the plaint, as to
how plaint would continue.

8. To decide this issue as the facts are
undisputed, I have also gone through
judgments relied upon the by the learned
counsel for the parties.

9. Learned counsel for the revisionistdefendant has placed reliance upon the
judgment of Apex Court in the matter of
I.T.C. Limited(Supra). Relevant paragraph
of the aforesaid judgment is being quoted
hereinbelow:

"29. For the aforesaid reasons,
we hold that there is no cause of action
even from the plaint allegations, against
the appellant. Appeal allowed and the
plaint if rejected under Order 7, Rule 11(a)
as against the appellant-5th defendant.
Appeal is allowed accordingly to that
extent. There will be no order as to costs."

10. In the aforesaid case, bank has
filed a suit with the allegation of fraud
upon the defendant No. 5. Against the said
suit, defendant No. 5 has filed application
under Order VII Rule 11 CPC to reject the
suit as there is no fraud played by him,
which was dismissed. Against that, appeal
was preferred before the DRAT, which was
dismissed and writ petition filed against
that order has also been dismissed. The
matter went up to Apex Court and the Apex
Court has considered that no fraud as
alleged has been played by the defendant
No. 5 and accordingly rejected the plaint so
far as it relates to defendant No. 5.

11. In fact this was not the issue
before the Apex Court that as to whether
plaint as a whole or in particular may be
rejected or not and Apex Court based
upon facts of the case as rejected the
plaint so far as it related to defendant No.
5.
8 All. Punjab National Bank Vs. Ikram Khan & Ors.
425

12. Learned counsel for the opposite
party No. 1 has also placed reliance upon
the judgments of full Bench of Punjab and
Haryana High Court in the matter of
Balwant Singh(Supra) in which the issue
was as to whether a plaint does not disclose
a cause of action in respect of the part of
the claim against some of the defendants is
liable to be rejected in its entirety. Relevant
paragraph of the aforesaid judgment is
being quoted hereinbelow:

"4. The short question that
requires determination in this case is,
whether a plaint which does not disclose a
cause of action in respect of the part of the
claim against some of the defendants is
liable to be rejected in its entirety.

11. As a result of the above
discussion, I hold that the plea raised by
the petitioner is untenable and the contrary
view is neither sound nor just and is not
warranted by the language of the statute.
Consequently, my answer to the question
posed is that the provisions of Order 7,
Rule 11 (a) of the Code of Civil Procedure,
would be attracted only in a case where by
reason of the plea that a plaint does not
disclose a cause of action, the plaintiff is to
be wholly non-suited, but this rule would
have no applicability to cases where a
plaint discloses & cause of action in
respect of the part of the claim against
some of the defendants, as in that event the
names of the defendants against whom
there is no cause of action or the suit is
barred by law, have to be struck off and the
suit has to proceed against the remaining
defendants. The case would now go back to
the learned Single Judge for disposal on
merits."

13. After considering the law as well
as judgments, it was held by the Full Bench
of Punjab and Haryana High Court that the
plaint does not discloses the cause of action
and the plaintiff is to be wholly non suited,
but in case a plaint discloses a cause of
action in respect of part of claim against
five defendants in that event, the names of
defendants against whom there is no cause
of action may be struck of.

14. In 2017 the same issue came
before the Apex Court in the matter of
Sejal Glass Ltd.(Supra). In this case, the
facts of the case are deposed in paragraph 4
of the judgment and the same is being
quoted hereinbelow:

"4.
An
application
dated
08.07.2016 was filed by the Defendant(s)
under Order VII Rule 11 stating that the
plaint disclosed no cause of action. By the
impugned judgment dated 07.09.2016, it
has been held that the plaint is to be
bifurcated - it discloses no cause of action
against the Directors i.e. Defendant Nos. 2
to 4 but the suit is to continue against the
Defendant No.1-Company. It has further
been held that the defendant, in any case, is
barred from filing a written statement in
the suit as he has taken inordinate time to
do so."

15. In the aforesaid case, Apex Court
after considering the provisions in detail
has replied in its paragraph 10, 11 & 13.
The Court has taken a very clear cut view
that plaint as a whole must be rejected and
not in part. Paragraph 10, 11 & 13 are
being quoted hereinbelow:

"10. We are afraid that this is a
misreading of the Madras High Court
judgment. It was only on the peculiar facts
of that case that want of Section 80 CPC
against one defendant led to the rejection
of the plaint as a whole, as no cause of
action would remain against the other
426 INDIAN LAW REPORTS ALLAHABAD SERIES
defendants. This cannot elevate itself into a
rule of law, that once a part of a plaint
cannot proceed, the other part also cannot
proceed, and the plaint as a whole must be
rejected under Order VII Rule 11. In all
such cases, if the plaint survives against
certain
defendants
and/or
properties,
Order VII Rule 11 will have no application
at all, and the suit as a whole must then
proceed to trial.

11. If only a portion of the plaint,
as opposed to the plaint as a whole is to be
struck out, Order VI Rule 16 of the CPC
would apply. Order VI Rule 16 states as
follows:-

"16. Striking out pleadings.- The
Court may at any stage of the proceedings
order to be struck out or amended any
matter in any pleading-

a) which may be unnecessary,
scandalous, frivolous or vexatious, or

b) which may tend to prejudice,
embarrass or delay the fair trial of the suit,
or

c) which is otherwise an abuse of
the process of the Court."
 It is clear that Order VI Rule 16
would not apply in the facts of the present
case. There is no plea or averment to the
effect that, as against the Directors,
pleadings should be struck out on the
ground
that
they
are
unnecessary,
scandalous, frivolous, vexatious or that
they may otherwise tend to prejudice,
embarrass or delay the fair trial of the suit
or that it is otherwise an abuse of the
process of the Court.

13. The Court is vested with a
discretion under this order to deal with an
issue of law, which it may try as a
preliminary issue if it relates to the
jurisdiction of the Court, or is a bar to the
suit created for the time being in force.
Obviously, this provision would apply after
issues are struck i.e. after a written
statement is filed. This provision again
cannot come to the rescue of learned
counsel for the respondent."

16. From the perusal of the judgment
of Apex Court in the matter of Sejal Glass
Ltd.(Supra) it is absolutely clear that in
case there is no cause of action against one
defendant, but plaint survives against
certain defendants, application under Order
VII Rule 11(a) CPC would have no
application and suit as a whole must have
been then proceeded to trial. The Apex
Court is of the view that in such facts,
where there is no other cause of action
against one of the defendants, but there is
cause of action against other defendants,
application under Order VII Rule 11 is not
maintainable and suit shall proceed.

17. Again the similar matter was
before the Apex Court in the matter of
Madhav Prasad Aggarwal(Supra) and the
Court has clearly held that plaint is to be
rejected as a whole and not in part.
Relevant paragraph of the said judgment
are being quoted hereinbelow:

"11. We do not deem it necessary
to elaborate on all other arguments as we
are inclined to accept the objection of the
appellant(s) that the relief of rejection of
plaint in exercise of powers under Order 7
Rule 11(d) of CPC cannot be pursued only
in respect of one of the defendant(s). In
other words, the plaint has to be rejected as
a whole or not at all, in exercise of power
Order 7 Rule 11 (d) of CPC. Indeed, the
learned Single Judge rejected this objection
raised by the appellant(s) by relying on the
decision of the Division Bench of the same
High Court. However, we find that the
decision of this Court in the case of Sejal
Glass Limited(supra) is directly on the
point. In that case, an application was filed
8 All. Punjab National Bank Vs. Ikram Khan & Ors.
427
by the defendant(s) under Order 7 Rule
11(d) of CPC stating that the plaint
disclosed no cause of action. The civil
court held that the plaint is to be bifurcated
as it did not disclose any cause of action
against the director's defendant(s) 2 to 4
therein. On that basis, the High Court had
opined that the suit can continue against
defendant
No.1company
alone.
The
question considered by this Court was
whether such a course is open to the civil
court in exercise of powers under Order 7
Rule 11(d) of CPC. The Court answered
the said question in the negative by
adverting to several decisions on the point
which had consistently held that the plaint
can either be rejected as a whole or not at
all. The Court held that it is not permissible
to reject plaint qua any particular portion
of a plaint including against some of the
defendant(s) and continue the same against
the others. In no uncertain terms the Court
has held that if the plaint survives against
certain defendant(s) and/or properties,
Order 7 Rule 11(d) of CPC will have no
application at all, and the suit as a whole
must then proceed to trial."

13. Indubitably, the plaint can
and must be rejected in exerciseof powers
under Order 7 Rule 11(d) of CPC on
account of noncompliance of mandatory
requirements or being replete with any
institutional deficiency at the time of
presentation of the plaint, ascribable to
clauses (a) to (f) of Rule 11 of Order 7 of
CPC. In other words, the plaint as
presented must proceed as a whole or can
be rejected as a whole but not in part. In
that sense, the relief claimed by respondent
No.1 in the notice of motion(s) which
commended to the High Court, is clearly a
jurisdictional error. The fact that one or
some of the reliefs claimed against
respondent No.1 in the concerned suit is
barred by Section 34 of 2002 Act or
otherwise, such objection can be raised by
invoking other remedies including under
Order 6 Rule 16 of CPC at the appropriate
stage. That can be considered by the Court
on its own merits and in accordance with
law. Although, the High Court has
examined those matters in the impugned
judgment the same, in our opinion, should
stand effaced and we order accordingly.

15. A fortiori, these appeals must
succeed on the sole ground that the
principal relief claimed in the notice of
motion filed by respondent No.1 to reject
the plaint only qua the said respondent and
which commended to the High Court, is
replete with jurisdictional error. Such a
relief "cannot be entertained" in exercise
of power under Order 7 Rule 11(d) of CPC.
That power is limited to rejection of the
plaint as a whole or not at all.

18. Apex Court in the matter of
Madhav
Prasad
Aggarwal(Supra)
following the judgment in Sejal Glass
Ltd.(Supra) has taken the very same view.
In fact, the firm view taken by the Apex
Court in Sejal Glass Ltd.(Supra) has been
reiterated in this judgment and the Court
has taken the view that in such eventuality,
suit will proceed and it cannot be rejected
in part only for one defendant.

19. Now, coming to the the facts of
the present case. It is undisputed that in the
plaint filed by the plaintiff-opposite party
No. 1, there is cause of action against other
defendants, i.e. defendant Nos. 1 to 4 Ist
set, therefore, by the application under
Order VII Rule 11(a) CPC filed by the
revisionist-defendant No. 5 IInd set, plaint
cannot be rejected and the plaint shall
proceed as a whole, because it would
injustice to the plaintiff so far as the plaint
relates to claim against defendants Ist set
i.e. defendant Nos. 1 to 4.
428 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Now, there is one more legal issue
as to whether revisionist-defendant is
having any remedy available under the law
or not, in case there is no allegation against
him in the plaint.

21. I have perused the Order I Rule 10
CPC that will come in the rescue of
revisionist-defendant,
which
is
being
quoted hereinbelow:

"10. Suit in name of wrong
plaintiff.-(1) Where a suit has been
instituted in the name of the wrong person
as plaintiff or where it is doubtful whether
it has been instituted in the name of the
right plaintiff, the Court may at any stage
of the suit, if satisfied that the suit has been
instituted through a bona fide mistake, and
that it is necessary for the determination of
the real matter in dispute so to do, order
any other person to be substituted or added
as plaintiff upon such terms as the Court
thinks just.

(2) Court may strike out or add
parties.-The Court may at any stage of the
proceedings, either upon or without the
application of either party, and on such
terms as may appear to the Court to be
just, order that the name of any party
improperly joined, whether as plaintiff or
defendant, be struck out, and that the name
of any person who ought to have been
joined, whether as plaintiff or defendant, or
whose presence before the Court may be
necessary in order to enable the Court
effectually and completely to adjudicate
upon and settle all the questions involved in
the suit, be added

...................................................
.........................................................
.........................................................
.........................................................
........................................................"

22. Order I Rule 10(2) CPC provides
that court may at any stage of the proceedings
either upon or without the application of
either party may strike out name, in case any
party is joined improperly, whether it is
plaintiff or the defendant. Meaning thereby
that revisionist-defendant is having remedy to
move application to strike out its name from
the array of defendants in Original Suit No.
308 of 2023 as its name has been joined
improperly as neither there is any cause of
action shown nor relief has been claimed
against the revisionist-defendant.

23. Therefore, in view of the law
discussed as above, I find no illegality or
infirmity in the impugned order dated
16.05.2024.

24. Petition lacks merit and is
accordingly dismissed.

25. No order as to costs.
----------
(2024) 8 ILRA 428
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.08.2024

BEFORE

THE HON'BLE IRSHAD ALI, J.

Contempt Application (Civil) No. 562 of 2016

Prashant Chandra ...Applicant
Versus
Harish Gidwani Deputy Commissioner Of
Income Tax Range 2 ...Opp. Party

Counsel for the Applicant:
Mudit Agarwal, Anand Prakash Sinha,
Radhika Singh

Counsel for the Opp. Party:
Neeraj
Chitravanshi,
Kushagra
Dikshit,
Manish Mishra