# Shri Om Prakash Upadhya v. Shri Vijay Kumar

- **Citation:** (2024) 7 ILRA 896
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-31
- **Case number:** Matters Under Article 227 No. 8286 of 2024
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-om-prakash-upadhya-v-shri-vijay-kumar-52335
- **Pages:** 7

## Headnote

Civil Law - Application for rejection of
Plaint-
Order
VII
Rule
11
of
CPC-
Dismissed by the Civil Judge- Revision
against this order also dismissed- Both of
these orders under challenge in the
present petition- plea of suit appear from
the statement in the plaint to be barred by
any law- Application under Order VII Rule
11 does not reveal that the suit is barred
by law- Plea of Order IX Rule 9
available when facts brought to the
knowledge of court by means of written
statement- Sections 37 and 41 of the
Specific Relief Act, 1963- No bar in
filing fresh suit in case there is no
possession
over
the
property
in
dispute- Application under Order VII
Rulee 11 of CPC to be decided- Only the
plaint has to been seen- no such bar of
law
can
be
ascertained
from
the
allegations
levelled
in
the
plaint-
impugned
orders
upheld-
Petition
dismissed. (Paras 11, 13, 14, 16 and
20)

HELD:
The above quoted provision provides that
decree against the plaintiff by default bars
fresh suit. There is no dispute on the point
that in case a suit is instituted, another suit
for the same cause of action is not
maintainable, but without putting all these
facts in defence by way of filing written
statement, the same cannot be seen from
application Under Order VII Rule 11 CPC.
From the perusal of the plaint, it does not
transpire that another suit filed earlier was for
the same cause of action and dismissed in
default, therefore, plea of Order IX Rule 9
cannot be seen at this stage without filing of
written
statement
by
the
petitionerdefendant. (Para 11)

From the perusal of Section 37 & 41of the
Act, 1963 it does not transpire that there is
any provision or any bar for filing fresh suit in
case there is no possession over the property
in dispute. (Para 13)

From the perusal of the aforesaid judgment, it is
apparently
clear
that
while
deciding
the
application under Order VII Rule 11 CPC, only
plaint has to be seen and in case allegation
made in the plaint are taken to be correct as a
whole on their face value and it shows that suit
is barred by any law, only then application for
rejection of plaint under Order VII Rule 11 CPC
can be entertained. (Para 16)

The Hon'ble Apex Court repeatedly taken the
view that while deciding application under Order
VII Rule 11 CPC only averment made in the
plaint has to be seen and any defence cannot be
taken into consideration. (Para 20)

Petition dismissed. (E-14)

List of Cases cited:

## Text

896 INDIAN LAW REPORTS ALLAHABAD SERIES
followed recently in the judgment of
Hon'ble Supreme Court in the case of Ajay
Singh
and
others
versus
State
of
Chattisgarh and others reported in AIR
2017 SC 310. The relevant paragraph no.
21 has been quoted hereinbelow:-

 '21.
In
Achutananda
Baidya
MANU/SC/0498/1997 (199705 SCC 76 a
two-Judge Bench while dealing with the
Prafullya
Kumar
Gayen
power
of
superintendence of the High Court Under
Article 227 has opined that the power of
superintendence of the High Court Under
Article 227 of the Constitution is not
confined to administrative superintendence
only but such power includes within its
sweep the power of judicial review. The
power and duty of the High Court Under
Article 227 is essentially to ensure that the
courts and tribunals, inferior to High
Court, have done what they were required
to do. Law is well settled by various
decisions of this Court that the High Court
can interfere Under Article 227 of the
Constitution
in
cases
of
erroneous
assumption
or
acting
beyond
its
jurisdiction, refusal to exercise jurisdiction,
error of law apparent on record as
distinguished from a mere mistake of law,
arbitrary
or
capricious
exercise
of
authority or discretion, a patent error in
procedure, arriving at a finding which is
perverse or based on no material, or
resulting in manifest injustice.'

33. From the above mentioned
judgments, it is clear that the power of
High Court under Article 227 is not
merely an administrative power but also
has power of judicial review and in the
present case as discussed above, that after
the expiry of 45 days period, the DCDRC
cannot accept the written statement in
gross violation of
specific
statutory
provision of the Act and by accepting the
written statement by recalling its earlier
order is nothing but erroneous assumption
or acting beyond its jurisdiction and
amounts to error of law apparent on record
and exercise of such power is arbitrary or
capricious exercise by the authority and
patent error in procedure. The State
Commission also failed to appreciate the
legal position as discussed above and
dismissed the appeal merely on expressing
satisfaction that the written statement was
accepted by imposing cost. There was
total failure on the part of the State
Commission
to
appreciate
the
legal
position.

34. In view of the discussion
made above, the writ petition is allowed.

35. The impugned orders dated
21.10.2022 and 15.10.2022 are hereby
quashed.

36. The District Consumer Forum
will hear the matter ignoring the written
statement filed by the respondents. The
respondents shall however participate in
the
further
proceedings
before
the
DCDRC.
----------
(2024) 7 ILRA 896
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.07.2024

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 8286 of 2024

Shri Om Prakash Upadhya ...Petitioner
Versus
Shri Vijay Kumar ...Respondent

Counsel for the Petitioner:
7 All. Shri Om Prakash Upadhya Vs. Shri Vijay Kumar
897
Sri Ayush Jain

Counsel for the Respondent:
Sri Ram Prakash Srivastava

Civil Law - Application for rejection of
Plaint-
Order
VII
Rule
11
of
CPC-
Dismissed by the Civil Judge- Revision
against this order also dismissed- Both of
these orders under challenge in the
present petition- plea of suit appear from
the statement in the plaint to be barred by
any law- Application under Order VII Rule
11 does not reveal that the suit is barred
by law- Plea of Order IX Rule 9
available when facts brought to the
knowledge of court by means of written
statement- Sections 37 and 41 of the
Specific Relief Act, 1963- No bar in
filing fresh suit in case there is no
possession
over
the
property
in
dispute- Application under Order VII
Rulee 11 of CPC to be decided- Only the
plaint has to been seen- no such bar of
law
can
be
ascertained
from
the
allegations
levelled
in
the
plaint-
impugned
orders
upheld-
Petition
dismissed. (Paras 11, 13, 14, 16 and
20)

HELD:
The above quoted provision provides that
decree against the plaintiff by default bars
fresh suit. There is no dispute on the point
that in case a suit is instituted, another suit
for the same cause of action is not
maintainable, but without putting all these
facts in defence by way of filing written
statement, the same cannot be seen from
application Under Order VII Rule 11 CPC.
From the perusal of the plaint, it does not
transpire that another suit filed earlier was for
the same cause of action and dismissed in
default, therefore, plea of Order IX Rule 9
cannot be seen at this stage without filing of
written
statement
by
the
petitionerdefendant. (Para 11)

From the perusal of Section 37 & 41of the
Act, 1963 it does not transpire that there is
any provision or any bar for filing fresh suit in
case there is no possession over the property
in dispute. (Para 13)

From the perusal of the aforesaid judgment, it is
apparently
clear
that
while
deciding
the
application under Order VII Rule 11 CPC, only
plaint has to be seen and in case allegation
made in the plaint are taken to be correct as a
whole on their face value and it shows that suit
is barred by any law, only then application for
rejection of plaint under Order VII Rule 11 CPC
can be entertained. (Para 16)

The Hon'ble Apex Court repeatedly taken the
view that while deciding application under Order
VII Rule 11 CPC only averment made in the
plaint has to be seen and any defence cannot be
taken into consideration. (Para 20)

Petition dismissed. (E-14)

List of Cases cited:

1. Madanuri Sri Rama Chandra Murthy Vs Syed
Jalal: 2017(13) SCC 174

2. G. Nagaraj, Anr Vs B.P. Mruthunjayanna &
Ors.: 2023 LiveLaw(SC)31

3. St. ofWest Bengal Vs U.O.I.passed in Original
Suit No.4 of 2021, delivered on 10.07.2024

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

1 . Heard Sri Pramod Jain, learned
Senior Counsel, assisted by Sri Ayush Jain
and Sri Ram Prakash Srivastava, learned
counsel for the petitioner.

2. Present petition has been
followed with the following prayer:

 "(a) To set-aside the impugned
judgment and order dated 21.04.2022
passed
by
Additional
Judge
(Senior
Division) Court No. 4, Meerut and the
impugned judgement and order dated
06.01.2024 passed by Additional District
Judge, Court No. 16, Meerut and allow the
898 INDIAN LAW REPORTS ALLAHABAD SERIES
application dated 06.11.2017 filed by the
defendant-petitioner under order 7 Rule 11
of the Code of Civil Procedure, 1908."

3.

Learned
Senior
Counsel
submitted that respondent-plaintiff has filed
Original Suit No. 784 of 1999, upon which
petitioner has filed application under Order
VII Rule 11, CPC on the ground that suit is
barred by law, which was rejected vide
impugned judgment and order dated
21.04.2022.
Against
order
dated
21.04.2022, petitioner-defendant filed Civil
Revision No. 21 of 2022, which was also
dismissed vide second impugned order
dated 06.01.2024.

4. He next submitted that earlier
the very same respondent-plaintiff has filed
Original Suit No. 276 of 1992 (Virendra
and Others Vs. Om Prakash Upadhya),
which was dismissed in default vide order
dated 13.07.1992. After dismissal of the
Suit No. 276 of 1992, respondent-plaintiff
filed application under Order IX Rule 9
CPC, being Misc. Case No. 116 of 1992 to
recall the order dated 13.07.1992, which
was also dismissed in default vide order
dated 22.02.1994. He next submitted that to
recall
the
order
dated
22.02.1994
respondent-plaintiff has filed application
under Section 151 CPC, being Misc. Case
No. 25 of 1994, which was ultimately
dismissed in default vide order dated
12.09.2003.
He
next
submitted
that
respondent-plaintiff has never challenged
the aforesaid orders before the higher court,
therefore the aforesaid orders have attained
finality.

5. He next submitted that for the
very same cause of action, respondentplaintiff has filed Original Suit No. 784 of
1999, upon which petitioner-defendant has
filed application under Order VII Rule 11
CPC on the ground that suit is barred under
the provision of Order IX Rule 9 CPC. He
next submitted that in the Original Suit No.
784 of 1999, it is admitted that petitionerdefendant is not having the possession over
the property in dispute, therefore, under
Section 37 & 41 of Specific Relief Act,
1963 (hereinafter, referred to as, 'Act,
1963'), no relief may be granted to him. He
lastly submitted that without considering
the aforesaid facts, application of petitioner
under Order VII Rule 11 CPC has been
rejected
vide
impugned
order
dated
21.04.2022. He firmly submitted that in
light of Order IX Rule 9 CPC, once the suit
is already dismissed, this suit is not
maintainable, therefore, it is required on the
part of the Additional Civil Judge(S.D.),
Court No. 4, Meerut to allow the application
of petitioner under Order VII Rule 11 CPC
and reject the Original Suit No. 784 of 1999.
Additional District Judge has also rejected the
revision without considering aforesaid facts.
In support of his contention, learned Senior
Counsel placed reliance upon the judgment of
Apex Court in the matters of Madanuri Sri
Rama Chandra Murthy Vs. Syed Jalal:
2017(13)SCC 174 and G. Nagaraj, Anr Vs.
B.P.
Mruthunjayanna
&
Ors.:
2023
LiveLaw(SC)311 and State of West Bengal
vs. Union of India passed in Original Suit
No.4 of 2021, delivered on 10.07.2024.

6.

I
have
considered
the
submission advanced by learned Senior
Counsel, perused the record and provision
of law and judgments relied upon.

7. Petitioner-defendant has filed
application under Order VII Rule 11(d)
CPC, which is being quoted hereinbelow:

 "11. Rejection of plaint.- The
plaint shall be rejected in the following
cases:-
7 All. Shri Om Prakash Upadhya Vs. Shri Vijay Kumar
899
 (a)..........................................
........................................................

 (b)..........................................
.......................................................

 (c)..........................................
......................................................

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

 (e)..........................................
........................................................

 (f)..........................................
........................................................"

8. From the perusal of the
aforesaid provision, it is required to see as
to whether, from the averment made in the
plaint, suit appears to be barred by any law
or not.

9. In the plaint, respondentplaintiff has stated that he is the owner of
the property in question having symbolic
possession. He has also given the reference
of Suit No. 276 of 1992, which is shown to
be pending for adjudication. Therefore,
from the perusal of the averment made in
the plaint, it cannot be said that this suit is
barred by any law, unless defence so raised
by the petitioner-defendant is taken into
consideration.

10. I have also perused the order
IX Rule 9 CPC, which is being quoted
hereinbelow:

 "9. Decree against plaintiff by
default bars fresh suit.-(1) Where a suit is
wholly or partly dismissed under rule 8, the
plaintiff shall be precluded from bringing a
fresh suit in respect of the same cause of
action. But he may apply for an order to set
the dismissal aside, and if he satisfies the
Court that there was sufficient cause for his
non-appearance when the suit was called
on for hearing, the Court shall make an
order setting aside the dismissal upon such
terms as to costs or otherwise as it thinks
fit, and shall appoint a day for proceeding
with the suit.

 (2) No order shall be made under
this rule unless notice of the application
has been served on the opposite party."

11. The above quoted provision
provides that decree against the plaintiff by
default bars fresh suit. There is no dispute
on the point that in case a suit is instituted,
another suit for the same cause of action is
not maintainable, but without putting all
these facts in defence by way of filing
written statement, the same cannot be seen
from application Under Order VII Rule 11
CPC. From the perusal of the plaint, it does
not transpire that another suit filed earlier
was for the same cause of action and
dismissed in default, therefore, plea of
Order IX Rule 9 cannot be seen at this
stage without filing of written statement by
the petitioner-defendant.

12. Now, I am coming to another
argument
about
the
possession
of
respondent-plaintiff over the property in
dispute as well as provision of Section 37
and 41 of the Act, 1963. Section 37 and 41
of the Act, 1963 are being quoted
hereinbelow:

 "37. Temporary and perpetual
injunctions.-(1) Temporary injunctions
are such as are to continue until a specific
time, or until the further order of the court,
and they may be granted at any stage of a
900 INDIAN LAW REPORTS ALLAHABAD SERIES
suit, and are regulated by the Code of Civil
Procedure, 1908 (5 of 1908).

 (2) A perpetual injunction can
only be granted by the decree made at the
hearing and upon the merits of the suit; the
defendant is thereby perpetually enjoined
from the assertion of a right, or from the
commission of an act, which would be
contrary to the rights of the plaintiff.

 41. Injunction when refused.-
An injunction cannot be granted- (a) to
restrain any person from prosecuting a
judicial
proceeding
pending
at
the
institution of the suit in which the
injunction is sought, unless such restraint is
necessary to prevent a multiplicity of
proceedings; (b) to restrain any person
from
instituting
or
prosecuting
any
proceeding in a court not subordinate to
that from which the injunction is sought;
(c) to restrain any person from applying to
any legislative body; (d) to restrain any
person from instituting or prosecuting any
proceeding in a criminal matter; (e) to
prevent the breach of a contract the
performance of which would not be
specifically enforced; (f) to prevent, on the
ground of nuisance, an act of which it is
not reasonably clear that it will be a
nuisance; (g) to prevent a continuing
breach
in
which
the
plaintiff
has
acquiesced; (h) when equally efficacious
relief can certainly be obtained by any
other usual mode of proceeding except in
case of breach of trust; 1 [(ha) if it would
impede or delay the progress or completion
of any infrastructure project or interfere
with the continued provision of relevant
facility related thereto or services being the
subject matter of such project.] (i) when the
conduct of the plaintiff or his agents has
been such as to disentitle him to be the
assistance of the court; (j) when the
plaintiff has no personal interest in the
matter."

13. From the perusal of Section 37
& 41of the Act, 1963 it does not transpire
that there is any provision or any bar for
filing fresh suit in case there is no
possession over the property in dispute.

14. In the plaint, title over the
property in dispute is claimed along with
symbolic possession, therefore, in light of
Section 37 & 41of the Act, 1963, it cannot
be said to be a bar under the provision of
said sections.

15. I have also perused judgment
and order of Hon'ble Apex Court in the
matter of Madanuri Sri Rama Chandra
Murthy(Supra). Relevant paragraph of the
said judgment is being quoted hereinbelow:

 "8. The plaint can be rejected
under Order VII Rule 11 if conditions
enumerated in the said provision are
fulfilled. It is needless to observe that the
power under Order VII Rule 11, CPC can
be exercised by the Court at any stage of
the suit. The relevant facts which need to be
looked into for deciding the application are
the averments of the plaint only. If on an
entire and meaningful reading of the plaint,
it is found that the suit is manifestly
vexatious and meritless in the sense of not
disclosing any right to sue, the court should
exercise power under Order VII Rule 11,
CPC. Since the power conferred on the
Court to terminate civil action at the
threshold
is
drastic,
the
conditions
enumerated under Order VII Rule 11 of
CPC to the exercise of power of rejection
of plaint have to be strictly adhered to. The
averments of the plaint have to be read as a
whole to find out whether the averments
disclose a cause of action or whether the
7 All. Shri Om Prakash Upadhya Vs. Shri Vijay Kumar
901
suit is barred by any law. It is needless to
observe that the question as to whether the
suit is barred by any law, would always
depend upon the facts and circumstances of
each case. The averments in the written
statement as well as the contentions of the
defendant are wholly immaterial while
considering the prayer of the defendant for
rejection of the plaint. Even when, the
allegations made in the plaint are taken to
be correct as a whole on their face value, if
they show that the suit is barred by any
law, or do not disclose cause of action, the
application for rejection of plaint can be
entertained and the power under Order VII
Rule 11 of CPC can be exercised. If clever
drafting of the plaint has created the
illusion of a cause of action, the court will
nip it in the bud at the earliest so that
bogus litigation will end at the earlier
stage. "

16. From the perusal of the
aforesaid judgment, it is apparently clear
that while deciding the application under
Order VII Rule 11 CPC, only plaint has to
be seen and in case allegation made in the
plaint are taken to be correct as a whole on
their face value and it shows that suit is
barred by any law, only then application for
rejection of plaint under Order VII Rule 11
CPC can be entertained.

17. In the present case, from the
perusal of plaint, it does not transpire that it
is barred by any law.

18. I have also considered
judgment of Hon'ble Apex Court in the
matter of G. Nagaraj(Supra). Relevant
paragraph of the said judgment is being
quoted hereinbelow:

 "6. The law is well settled. For
dealing with an application under Rule
11 of Order VII CPC, only the
averments made in the plaint and the
documents produced along with the
plaint are required to be seen. The
defence of the defendants cannot be
even looked into. When the ground
pleaded for rejection of the plaint is the
absence of cause of action, the Court
has to examine the plaint and see
whether any cause of action has been
disclosed in the plaint."

19. There is recent judgment of
Apex Court in the matter of State of West
Bengal vs. Union of India passed in
Original Suit No.4 of 2021 in which Court
has discussed about the Order 7 Rule 11 of
CPC. Relevant paragraph of the said
judgments are quoted below:-

 "22. For appreciating the rival
submissions, it will be relevant to refer to
Order XXVI Rule 6 of the SC Rules, which
reads thus:

"Order XXVI

Plaints

 ............

 6. The plaint shall be rejected:-

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

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

 23. It can thus be seen that a
plaint is liable to be rejected where it does
not disclose a cause of action or where the
suit appears from the statement in the
plaint to be barred by any law.
902 INDIAN LAW REPORTS ALLAHABAD SERIES
 24. As such, it could be seen that
the provisions in Order XXVI Rule 6 (a)
and (b) are analogous to the provisions in
clauses (a) and (d) of Order VII Rule 11 of
the CPC.

 25. It is a settled position of law
that, for considering objections under
Order VII Rule 11 (a) and (d) of the CPC,
what needs to be looked into is only the
averments made in the plaint. It is well
settled that if the averments made in
theplaint are germane then the pleas
taken by the defendant inthe written
statement would be wholly irrelevant at
this stage. Reference in this respect could
be made to the judgments of this Court in
the cases of Saleem Bhai and Others v.
State of Maharashtra and Others14,
Sopan Sukhdeo Sable and Others v.
Assistant Charity Commissioner and
Others15, Bhau Ram v. Janak Singh and
Others16 and Chhotanben and Another v.
Kirtibhai Jalkrushnabhai Thakkar and
Others17.

 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).

 27. It is further settled that the
averments made in the plaint have to be
read as a whole and not in isolation.
Reference in this respect could be made
to the judgment of this Court in the case
of
Kirtibhai
Jalkrushnabhai
Thakkar
(supra)."
20. The Hon'ble Apex Court
repeatedly taken the view that while
deciding application under Order VII Rule
11 CPC only averment made in the plaint
has to be seen and any defence cannot be
taken into consideration.

21. In the present case, in light of
discussion
made
hereinabove,
it
is
apparently clear that from the perusal of
averment made in the plaint there cannot be
said to be bar of any provision of law for
filing this suit, therefore I found no
illegality or infirmity in the impugned
orders dated 21.04.2022 & 06.01.2024.

22. Petition lacks merit and
accordingly dismissed.

23. No order as to costs.
----------
(2024) 7 ILRA 902
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.07.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Matters Under Article 227 No. 11249 of 2019

Abdul Hasan ...Petitioner
Versus
First A.D.J., Pratapgarh & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Shailesh Kumar Srivastava

Counsel for the Respondents:
Sri Akshat Kumar, Sri Ankit Pande, Sri
Malkhan
Singh,
Sri
Sanjay
Kumar
Srivastava

(A) The Constitution of India, 1950 -
Article 227 - Supervisory jurisdiction - The