# Shriram Educational and Charitable Trust Registered Office &Anr v. Alok Swaroop & Ors

- **Citation:** (2019) 1 ILRA 1295
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-23
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shriram-educational-and-charitable-trust-registered-office-anr-v-alok-swaroop-44452
- **Pages:** 13

## Headnote

A. C.P.C. Order 7 Rule 11 and Section 115
- Application - Injunction of Plaint-
challenged to maintainability of Suit
where the Plaint is challenged on the
ground
that
the
Suit
being
not
maintainable, 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 the
case. The averments made in pleadings
are wholly immaterial while considering
the prayer of the defendant for rejection
of the Plaint. Even when, if the allegations
shows that the Suit is barred by any law,
the power under Order VII Rule 12 of
C.P.C. can be exercised as the Court will
rip in the bad at the therehold- therefore,
it is found and manifest error of law or
facts by the Court below while rejecting
the application.
 (Para 13, 22, 25, 27, 33, 328, 34, 35)

Case Law: -

1.Surya Dev Rai Versus Ram Chander Rai,
2003 S.C. 3044

## Text

_Characters 0–39,924 of 43,204. This is a partial read: ask again with offset=39924 for what follows._

1 All. Shriram Educational and Charitable Trust Registered Office & Anr. Vs. Alok Swaroop & Ors. 1295
Fatehpur
informing
this
Court
that
whether or not a non judicial enquiry as
has time and again been circulated by the
High Court in relation to loss of judicial
records, conducted and if so, its result. It
is also directed that after receipt of report
from the District Judge, Fatehpur, the
Registrar General of this Court shall place
the
matter
before
Hon'ble
the
Administrative
Judge
concerned
for
appropriate orders, in case of non
compliance of the various Circulars of
this Court regarding loss of record.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2019

BEFORE
THE HON'BLE AJIT KUMAR, J.

MISC PETITION NO. 4968 of 2019 (CIVIL)

(Matters Under Article 227)

Shriram Educational and Charitable
Trust Registered Office &Anr.
 ...Petitioners
Versus
Alok Swaroop & Ors. ...Respondents

Counsel for the Petitioners:
Ms. Shreya Gupta, Sri Ravi Anand
Agarwal, Sri Rakesh Pande.

Counsel for the Respondents:
Sri Bipin Lal Srivastava, Sri S.K. Varma.

A. C.P.C. Order 7 Rule 11 and Section 115
- Application - Injunction of Plaint-
challenged to maintainability of Suit
where the Plaint is challenged on the
ground
that
the
Suit
being
not
maintainable, 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 the
case. The averments made in pleadings
are wholly immaterial while considering
the prayer of the defendant for rejection
of the Plaint. Even when, if the allegations
shows that the Suit is barred by any law,
the power under Order VII Rule 12 of
C.P.C. can be exercised as the Court will
rip in the bad at the therehold- therefore,
it is found and manifest error of law or
facts by the Court below while rejecting
the application.
 (Para 13, 22, 25, 27, 33, 328, 34, 35)

Case Law: -

1.Surya Dev Rai Versus Ram Chander Rai,
2003 S.C. 3044

2. Durga Prasad Versus Naveen Chandra and
others J.T. 1996 (3) S.C. 564

3. U.P. Rajkiya Nirman Nigam Ltd. Versus M/S
C&C constructions and anothers, 2019 (132)
ALR 389

4. Smt. Shivpatti Devi and others Versus
Yudhishthir Dhar Dubey and others, 2016(2)
JCLR 386 (All)

5. Baldevdas Shivlal and another Versus
Filmistan Distributors (India) Pvt. Ltd. and
others 1969 (2) SCC 201

6. Abdul Gagur and another Versus State of
Uttarakhand and others, 2008 (10) SCC 97

7. Saleem Bhai and others Versus State of
Maharashtra and others 2003 (1) SCC 557

8. Madanuri Sri Rama Chandra Murthy Versus
Syed Jalal, 2017 (13) SCC 174

9. Central Provident Fund Commissioner, New
Delhi and others Versus Lala J.R. Education
Society and others 2016 (14) SCC 679 (E-2)

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Rakesh Pande, learned
Senior Counsel assisted by Ms. Shreya
Gupta, learned counsel for the petitioner
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
and Sri S.K. Varma, learned Senior
Counsel assisted by Sri Bipin Lal
Srivastava,
learned
counsel
for
the
contesting
respondents
and
learned
Standing Counsel for the State.

2. By invoking the power of
superintendence of this Court under
Article 227 of the Constitution of India,
the petitioner has questioned the propriety
and legality of the order passed by the
Additional Civil Judge (Senior Division),
Court No.4, Muzaffarnagar dated 13th
May, 2019 in rejecting the application of
the petitioner bearing Paper No.- 43-C
filed under Order VII Rule 11 of the Code
of Civil Procedure, 1908 (hereinafter
referred to as 'C.P.C.').

3. Briefly stated the facts of the case
are that the contesting respondents and the
petitioner entered into the some agreement
whereunder the premises in question were
leased out on rent to be paid as per the
terms and agreement reached between the
parties. It appears that there arose some
dispute regarding dues of rent and
consequently arrears which the plaintiffsrespondents claimed to have remained
unpaid for long compelling them to
institute a suit seeking a relief for recovery
of dues in terms of rent as well as interest
thereupon for delayed payment. The suit
was instituted on 16th October, 2018 and
was registered as O.S. No.- 575 of 2018.
From the perusal of relief clause of plaint it
transpires that a sum of Rs.22,51,565/- was
claimed towards arrears of rent accrued
between 1st April, 2017 and 30th June,
2017 and also 1st April, 2016 and 31st
August, 2016 and further a sum of
Rs.11,96,970/- was claimed as interest
thereupon. It transpires that subsequently
the
contesting
respondents
came
to
institute another suit bearing O.S. No.- 670
of 2018 that was registered on 7th
December, 2018 and this time a sum of
Rs.16,44,940/- were claimed towards the
arrears of rent and further a sum of
Rs.5,82,987/- were claimed towards the
interest for the period between 1st July,
2017 and 31st October, 2017. Both the
suits were filed as summary suits under
Order XXXVII read with Section 151 of
C.P.C.

4. The petitioners who were
defendant in both the suits filed an
application under Order VII Rule 11 of
C.P.C. in O.S. No.- 674 of 2018 taking
the plea that suit was clearly barred by
law in terms of the Order XXXVII Rule 2
sub-rule 1-B of C.P.C. in the first instance
and further the second suit would be
barred for the relief which could have
been claimed under the first suit and the
petitioner having chosen not to seek such
relief in the said earlier suit, the suit was
barred under Order 2 Rule 2 of C.P.C. in
the light of the U.P. amendment.

5. The argument advanced by the
learned counsel for the petitioner is that
the
suit
under
Order
XXXVII
is
maintainable in the event any of the
conditions prescribed for under Rule 2 are
met and according to him, Rule 2 (I) is
attracted in the present case as the claim is
sought to be set up on the basis of the
written lease agreement reached between
the
parties.
In
order
to
correctly
appreciate
the
controversy,
learned
counsel for the petitioner has drawn the
attention of the Court towards paragraph 8
of the plaint in which it has been stated
that there was a lease agreement reached
between the parties on 29th June, 2010
and
according
to
which
either
Rs.1,00,000/- or an amount equivalent to
30% of the receipts obtained in the name
1 All. Shriram Educational and Charitable Trust Registered Office & Anr. Vs. Alok Swaroop & Ors. 1297
of tuition fee/ admission fee etc., whichever
higher, was to be paid as lease rent but at the
same time, vide paragraph 12 of the plaint
the amount of dues towards the lease rent
were sought to be enhanced and claimed on
the basis of the some admission made by the
present petitioner in Writ-C No.- 15061 of
2018 and, therefore, it is argued that this
stand taken in the plaint cannot be a ground
to institute a suit for recovery of rent and
arrears as a summary suit under order
XXXVII of C.P.C. He further argued that
this paragraph coming in the plaint has been
made the basis of the relief ultimately
claimed in the suit.

6. On the point of Order 2 Rule 2 of
C.P.C., Mr. Pande has sought to urge that
in view of the earlier suit filed by the
present plaintiff-defendant registered as
O.S. No. 575 of 2018, wherein the claim
was set up for arrears of rent of different
stages, would have covered the stage for
which the decree for recovery of rent in
the present suit has been prayed for but
the plaintiff having not done so, it would
amount to relinquishment of claim on the
part of the plaintiffs and therefore, the suit
was clearly barred by Order 2 Rule 2 of
C.P.C. He submits that there is an
admission of the plaintiffs themselves, as
has come to be recorded in the order, that
the claim for the dues towards the rent in
the second suit was from 1st July, 2017 to
31st October, 2017 whcih included the
period of 1st April, 2017 till 30th June,
2017 claimed in the earlier suit and,
therefore, it is argued that the period
would have been included in the earlier
suit filed on 16th October, 2018.

7. Thus, according to him and in
view of the submissions so advanced and
the pleadings raised by the respondentplaintiff in the plaint, the plaint in the suit
bearing O.S. No.- 670 of 2018 was liable
to be rejected.

8. Per contra, Sri S.K. Varma,
learned Senior Advocate has vehemently
urged that the present petition under
Article 227 of the Constitution, was not
maintainable as the proceedings under
Order VII Rule 11 of C.P.C. are
independent proceedings and dismissal of
the application in the said order amounts
to termination finally of the proceedings
relating to the maintainability of the suit
and, therefore, the revision would lie in
court below and not the petition under
Article 227 of the Constitution.

9. Learned Counsel for the petitioner
for this purpose has placed heavy reliance
upon the judgment of the Apex Court in
the case of Surya Dev Rai v. Ram
Chander Rai, 2003 SC 3044 and the
judgment of the Apex Court in the case of
Durga Prasad v. Naveen Chandra and
others, JT 1996 (3) SC 564.

10. Besides above, Sri Varma
argued that ground of challenge to plaint
are basically institutional in nature and the
suit otherwise not being barred taking the
plaint in its entirety, Order VII Rule 11
application was rightly rejected.

11. Countering the above argument
of preliminary objection raised by the
learned
Senior
Counsel,
Sri
Pande
appearing for the petitioners has placed
reliance upon two judgments of this
Court: firstly, in the case of U.P. Rajkiya
Nirman Nigam Ltd. v. M/s. C & C
Constructions and another, 2019 (132)
ALR 389 and the judgment in the case of
Smt. Shivpatti Devi and others v.
Yudhishthir Dhar Dubey and others,
2016 (2) JCLR 386 (All).
1298 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Having heard learned counsel
for the parties and their respective
arguments advanced across the Bar and
having
gone through the pleadings
available on record from the judgments
cited by the parties, I would like to deal
first with preliminary objection raised by
Sri Varma, learned Senior Counsel.

13. The judgment cited by the
learned counsel for the petitioners, in the
case of U.P. Rajkiya Nirman Nigam
(supra), chiefly deals with the powers of
High Court under Section 115 of C.P.C.
and Article 226 of the Constitution. The
question with regard to the argument
advanced as preliminary objection, in my
considered opinion, has not been dealt
with in the said judgment. So far the
jurisdiction in terms of judicial discretion
under Article 227 of the Constitution even
while the power lies with Court sitting in
revision, I would come to deal with a little
later. Insofar as the judgment in case of
Smt.
Shivpatti
Devi
(supra)
is
concerned, in the said case the Court
declines to interfere in civil revision on
the ground that the question raised in the
application under Order VII Rule 11 of
C.P.C. involved mix question of fact and
law which could not have been decided at
the preliminary stage and, therefore, it
was held that there was no failure of
justice if the impugned order was to
sustain and if the order sustained it would
not dispose of finally any suit or
proceedings.

Durga Prasad (supra)

14. From a bare reading of the
aforesaid judgment it is clear that the
Court refused to interfere in the revision
petition in the said case in exercise of
power in the revision itself on merits
instead of holding that revision was not
maintainable and, therefore, the judgment
is also of no help to the petitioner.

15. Coming to the judgment cited by
Sri Varma, learned Senior Counsel, in the
case of Durga Prasad (supra), the Court
in the said case dealt with order against
the dismissal of the order 9 Rule 13
application. The writ petition was filed
instead of revision petition and the Court
held that the order was not appealable
under Order 43 Rule 1 read with Section
104 of C.P.C. but still a revision would be
maintainable. Vide paragraph 3 of the
said judgment the Apex Court held thus:-

"3. On the last occasion when
the matter had come up for admission, we
had asked the learned counsel as to how
the writ petition is maintainable in the
circumstances.
The
learned
counsel
sought for and the matter was adjourned.
Thus it has come up today. The
appellant's counsel contended that three
remedies are open to the appellant under
the CPC, namely, right of appeal under
Section 96 or appeal under Order 43 read
with Section 104 or a revision under
Section 115 CPC. In view of the fact that
the matter does not come within the four
corners of any of the three remedies, the
appellant is left with no other remedy
except approaching the High Court under
Article 226. It is true that the impugned
order is not appealable one either under
Section 96 or under Order 43 Rule 1 read
with Section 104 CPC. But still a revision
would be maintainable and whether the
order could be revised or not is a matter
to be considered by the High Court on
merits. But instead of availing of that
remedy,
the
appellant
has
invoked
jurisdiction under Article 226 which is not
warranted and the procedure prescribed
under C.P.C. cannot be bye-passed by
1 All. Shriram Educational and Charitable Trust Registered Office & Anr. Vs. Alok Swaroop & Ors. 1299
availing of the remedy not maintainable
under
Article
226.
Under
these
circumstances, we decline to interfere
with the order. It is open to the appellant
to avail of such remedy as is open under
law."

16. The next judgment cited is the
case of Surya Dev Rai (supra), Sri
Varma, learned Senior Counsel, has
placed heavy reliance on paragraph 38 of
the said judgment which is reproduced
hereunder:-

"38.
Such
like
matters
frequently arise before the High Courts.
We sum up our conclusions in a nutshell,
even at the risk of repetition and state the
same as hereunder:-

(1) Amendment by Act No.46 of
1999 with effect from 01.07.2002 in
Section 115 of Code of Civil Procedure
cannot and does not affect in any manner
the jurisdiction of the High Court under
Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed
by the courts subordinate to the High
Court, against which remedy of revision
has
been
excluded
by
the
CPC
Amendment Act No. 46 of 1999 are
nevertheless open to challenge in, and
continue to be subject to, certiorari and
supervisory jurisdiction of the High
Court.

(3) Certiorari, under Article 226
of
the
Constitution,
is
issued
for
correcting gross errors of jurisdiction,
i.e., when a subordinate court is found to
have acted (i) without jurisdiction - by
assuming jurisdiction where there exists
none, or (ii) in excess of its jurisdiction -
by overstepping or crossing the limits of
jurisdiction, or (iii) acting in flagrant
disregard of law or the rules of procedure
or acting in violation of principles of
natural
justice
where
there
is
no
procedure
specified,
and
thereby
occasioning failure of justice.

(4)
Supervisory
jurisdiction
under Article 227 of the Constitution is
exercised for keeping the subordinate
courts within the bounds of their
jurisdiction. When the subordinate Court
has assumed a jurisdiction which it does
not have or has failed to exercise a
jurisdiction which it does have or the
jurisdiction though available is being
exercised by the Court in a manner not
permitted by law and failure of justice or
grave injustice has occasioned thereby,
the High Court may step in to exercise its
supervisory jurisdiction.

(5) Be it a writ of certiorari or
the exercise of supervisory jurisdiction,
none is available to correct mere errors
of fact or of law unless the following
requirements are satisfied : (i) the error is
manifest and apparent on the face of the
proceedings such as when it is based on
clear ignorance or utter disregard of the
provisions of law, and (iii) a grave
injustice or gross failure of justice has
occasioned thereby.

(6) A patent error is an error which
is self-evident, i.e., which can be perceived or
demonstrated without involving into any
lengthy or complicated argument or a longdrawn process of reasoning. Where two
inferences are reasonably possible and the
subordinate court has chosen to take one view
the error cannot be called gross or patent.

(7) The power to issue a writ of
certiorari and the supervisory jurisdiction are
1300 INDIAN LAW REPORTS ALLAHABAD SERIES
to be exercised sparingly and only in
appropriate
cases
where
the
judicial
conscience of the High Court dictates it to act
lest a gross failure of justice or grave injustice
should
occasion.
Care,
caution
and
circumspection need to be exercised, when
any of the above said two jurisdictions is
sought to be invoked during the pendency of
any suit or proceedings in a subordinate court
and the error though calling for correction is
yet capable of being corrected at the
conclusion of the proceedings in an appeal or
revision
preferred
there
against
and
entertaining a petition invoking certiorari or
supervisory jurisdiction of High Court would
obstruct the smooth flow and/or early disposal
of the suit or proceedings. The High Court
may feel inclined to intervene where the error
is such, as, if not corrected at that very
moment, may become incapable of correction
at a later stage and refusal to intervene would
result in travesty of justice or where such
refusal itself would result in prolonging of the
lis.

(8) The High Court in exercise
of certiorari or supervisory jurisdiction
will not covert itself into a Court of
Appeal and indulge in re-appreciation or
evaluation of evidence or correct errors
in drawing inferences or correct errors of
mere formal or technical character.

(9) In practice, the parameters
for exercising jurisdiction to issue a writ
of certiorari and those calling for exercise
of supervisory jurisdiction are almost
similar and the width of jurisdiction
exercised by the High Courts in India
unlike
English
courts
has
almost
obliterated the distinction between the
two
jurisdictions.
While
exercising
jurisdiction to issue a writ of certiorari
the High Court may annul or set aside the
act,
order
or
proceedings
of
the
subordinate courts but cannot substitute
its own decision in place thereof. In
exercise of supervisory jurisdiction the
High Court may not only give suitable
directions so as to guide the subordinate
court as to the manner in which it would
act or proceed thereafter or afresh, the
High Court may in appropriate cases
itself make an order in supersession or
substitution
of
the
order
of
the
subordinate court as the court should
have made in the facts and circumstances
of the case."

17. Placing emphasis upon point
No.-9 in the conclusive paragraph 39 of
the judgment, Sri Varma, submitted that
the power of superintendence of the High
Court has to be very sparingly exercised
and the court would always relegating for
remedy of revision, if available in law. I
find that the Apex Court has laid
emphasis on the point that the exercise of
jurisdiction under Articles 226 and 227 of
the Constitution cannot be tight down in a
straight jacket formula. The Apex Court
observed that no rigid rules can be
prescribed for rendering the High Court in
a state of dilemma; it observed that there
may be cases were a stitch in time would
save nine. It was left open for the High
Court to exercise the discretion as per its
own judicial conscience.

18. Considering the cope and ambit
of Section 115 of C.P.C. the Apex Court
in the case of Baldevdas Shivlal and
another
v.
Filmistan
Distributors
(India) Pvt. Ltd and others; 1969 (2)
SCC 201 held that expression 'case' does
not connote to entirely of the matter in
dispute in an action and if it is interpreted
as an entire proceedings and not a part of
the
proceedings,
would
impose
an
unwarranted restrictions on the exercise
1 All. Shriram Educational and Charitable Trust Registered Office & Anr. Vs. Alok Swaroop & Ors. 1301
of power of superintendence. Seeking for
the Bench Justice J.L. Shah (as His
Lordship then was) observed "A case
may be said to be decided, if the court
adjudicates for the purpose of suit same
right or obligation of the parties in
contrary ..........."

19. Learned Senior Advocate Sri
Pande has sought to distinguish settled
authorities with U.P. amendment to
Section 115 of C.P.C. where words are
'suit or other proceedings finally decided'.

20. In order to deal with this above
argument one has to understand what is
suit and what could be 'other proceedings'
in the in intendment of the state
legislature.

21. Suit is an action to set up a claim
and instituted for adjudication thereof. A
suit proceeding has many stages: like
registration of plaint as an action and
rejection to its maintainability; framing of
issues; leading of evidence, calling for
reports and contesting issues of fact etc.
The argument is that if application is
allowed under Order VII Rule 11
rejecting
the
plaint
it
amounts
to
termination of the suit itself and such an
order is revisable but rejection of
application would not fall in the category
of termination of 'other proceedings'. This
argument does not appeal to reason.
'Other proceedings' would certainly mean
proceedings where suit is on with
registration of suit and issuance of
summons.

22. Now in order to test the present case
in the light of the legal position discussed
above it is first necessary to examine as to
what is the nature of the order if passed in
terminating the proceedings either way, under
Order VII Rule 11 of C.P.C. In order to
appreciate the legal position, the provisions as
contained under Order VII Rule 11 of C.P.C.
are reproduced hereunder:-

"11. 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 written upon
paper insufficiently stamped, and the plaintiff,
on being required by the Court to supply the
requisite stamp-paper within a time to be fixed
by the Court, failed 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-papers 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-papers, 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."

23. From the bare reading of the
aforesaid provisions it clearly transpires
that where the plaint is challenged on the
ground
that
the
suit
being
not
1302 INDIAN LAW REPORTS ALLAHABAD SERIES
maintainable, it turns out to be an
independent
point
in
issue
at
the
preliminary
stage
to
deal
with
maintainability of the suit. Once an
application under Order VII Rule 11 of
C.P.C. comes to be allowed, the suit
proceedings
automatically
stands
terminated and the point stands decided in
favour of the defendant raising objection.
Why one should be forced to undergo a
long hectic and burdensome procedure
under civil law, if the very plaint at the
threshold deserves rejection. Keeping this
object in mind the Legislature conceived a
proceeding under Order VII Rule 11 in
C.P.C. before taking off a suit proceeding.

24. Thus, for the purposes of plaint case,
every suit proceedings stands terminated with
the rejection of the plaint and the order attains
finality in respect of the plaintiff, who wants
to pursue the suit seeking appropriate relief as
claimed for. However, in case if the
application under Order VII Rule 11 is
rejected then for the purposes of defendant the
point stands finally determined and the plea of
maintainability of the suit comes to be rejected
against him. In either of the situation, the order
amounts to a case to determine terminating in
the proceedings of that stage in terms of U.P.
amendment with the Central Act and,
therefore, the revision under Section 115
C.P.C., would be maintainable.

25. So what the testing anvil is that a
proceeding if instituted on a miscellaneous
application should be concluded with its
disposal by an order after due adjudication.
Such proceedings would amount to the word
and expression 'other proceedings'. In view of
the above what I have held in foregoing
paragraphs of this judgment, emerges out to
be legal position that an order rejecting
application under Order VII Rule 11 of
C.P.C., is therefore, held to be an order
revisable under Section 115 of C.P.C.

26. The judgment in Surya Dev Rai
(supra) is also a complete answer to the
question
of
exercise
of
power
of
superintendence under Article 227 even
while
the
remedy
of
revision
is
availability. Invoking jurisdiction of this
Court under Article 227 should not be left
open to exercise the option to apply for
such relief ordinarily but where the Court
finds sending back for revision would
only amount to killing time and this Court
can examine the exercise of jurisdiction
by a Court sub-ordinate to it, on legal
pleas, this Court can always exercise
jurisdiction of superintendence. In the
case like the present one where the issue
is of maintainability of suit and plaint is to
be tested on yardstick of clauses provided
for under Order VII Rule 11 C.P.C., this
Court looking to the plaint case easily
examine whether jurisdiction has been
properly exercised by the trial court and if
upheld
would
not
result
in
any
miscarriage of justice. So, the issue I had
earlier referred to be dealt with later,
stands
answered
in
favour
of
the
petitioner for maintainability of this
petition.

27. In view of the above, in my
considered opinion, while the revision
would be maintainable against the order
passed under Order VII Rule 11 of
C.P.C.,
in
the
given
facts
and
circumstances of the present case, it
would be a futile exercise to remit the
matter to avail alternative remedy of
revision besides sheer wastage of time. It
would be cumbersome for the petitioner
to relegate him to the remedy of revision
in the facts and circumstances of the case.
Accordingly, I proceed to consider and
1 All. Shriram Educational and Charitable Trust Registered Office & Anr. Vs. Alok Swaroop & Ors. 1303
decide this petition under Article 227 of
the Constitution.

28. Insofar as the application under
Order VII Rule 11 of C.P.C. is concerned,
litigant has to bear in mind that objection
can be of two categories: one institutional
objection; and the other one relating to
the maintainability of the suit itself as
being barred by law.

29. So far as the first category of
objection is concerned, it permits the trial
of the suit as it relates to the issues
involved in the suit where a point needed
determination as a point involving mixed
question of law and facts and so far
second category of the objection is
concerned, it goes to the very root of the
matter and if the Court, from a bare
reading of plaint, can come to conclude
that not only the plaint does not disclose
any cause of action but also the suit is
barred by any law and its continuance
would hit the very jurisdiction of court, it
would reject the plaint at the very
threshold.

30. In the case in hand the suit has
been instituted for recovery of arrears of
rent and interest thereupon and the plea
taken in the plaint is that in spite of the
agreement reached between the parties,
the defendant-petitioner fails to pay the
rent and thus arrears have accrued. From
the entire pleadings as have come to be
raiseed in the plaint which has been
entertained and the suit has been instituted
as a summary suit, I find that the plea
taken is that the defendants are arrears of
rent. The defendants-petitioners have not
denied agreement between the parties and
their status as a lease holder under the
lease agreement. This being the fact
situation, the question would be how the
arrears have accrued and whether the
claim set up is right or wrong. This, in the
considered opinion of the Court, is a pure
question of fact emerging out of an
agreement and conduct of affairs by the
parties. The question whether plea taken
in paragraph 12 is legally sustainable or
not and would result in the claim not
arising
out
of
agreement
and
so
consequently resulting it being held not
maintainable for the relief claim, is a
mixed question of law and fact. Similarly,
the question whether the earlier suit and
the pleadings raised therein amounted to
relinquishment of the rights for the period
recovery of rent having not been claimed
in the said suit and, therefore, subsequent
suit would be clearly barred under Order
2 Rule 2 of C.P.C. is also a mixed
question of fact and law and needed to be
adjudicated upon. At this stage, this Court
may not ignore that statute does not bar a
suit of this kind where arrears of rent and
interest
thereupon
are
claimed
by
landlord/ lessor from the tenant/ lessee but
the question whether such a suit would be
maintainable under Order XXXVII or not
considering the plea taken in the plaint
and defence set up against it and whether
such a suit is also barred by Order 2 Rule
2 of C.P.C. considering the claim made in
the earlier suit by the same plaintiff
against the same defendant, is all to be
determined by the trial court after framing
the issues and, therefore, in the considered
opinion of the Court, these are the
institutional objections and required to be
adjudicated upon after the issues are
framed and the parties lead evidence.

31. The argument advanced by Sri
Rakesh Pande, learned Senior Counsel
appearing for the petitioner that there has
been concealment of the material fact
regarding earlier filing of the suit and
1304 INDIAN LAW REPORTS ALLAHABAD SERIES
there have been mis-statements of fact in
the plaint regarding obligation upon the
petitioner to pay the rent and its amount
would be taken into account while
considering an application under Order
VII Rule 11 of C.P.C., cannot be
accepted. The legal position as has
emerged from the series of judgment of
the Apex Court is that the Court has to
examine only the plaint i.e. the pleadings
raised and the relief claimed for. In the
case of Abdul Gafur and another v.
State of Uttarakhand and others; 2008
(10) SCC 97 vide paragraphs 16, 17, 18
and 19 the Apex Court has held thus:-

"16. Section 9 of the Code
provides that civil court shall have
jurisdiction to try all suits of a civil nature
excepting the suits of which their
cognizance
is
either
expressly
or
impliedly barred. To put it differently, as
per Section 9 of the Code, in all types of
civil disputes, civil courts have inherent
jurisdiction
unless
a
part
of
that
jurisdiction is carved out from such
jurisdiction, expressly or by necessary
implication by any statutory provision
and conferred on (1977) 4 SCC 467 other
Tribunal or Authority. Thus, the law
confers on every person an inherent right
to bring a suit of civil nature of one's
choice, at one's peril, howsoever frivolous
the claim may be, unless it is barred by a
statute.

17. In Smt. Ganga Bai Vs. Vijay
Kumar &Ors.4, this Court had observed
as under:

"15. ....... There is an inherent
right in every person to bring suit of a
civil nature and unless the suit is barred
by statute one may, at ones peril, bring a
suit of one's choice. It is no answer to a
suit, howsoever frivolous the claim, that
the law confers no such right to sue. A
suit for its maintainability requires no
authority of law and it is enough that no
statute bars the suit."

18.
In
Dhannalal
Vs.
Kalawatibai &Ors.5 relying on the aforeextracted observation in Ganga Bai's case
(supra), this Court had held as follows:

"23. The plaintiff is dominus litis,
that is, master of, or having dominion over,
the case. He is the person who has carriage
and control of an action. In case of conflict of
jurisdiction the choice ought to lie with (1974)
2 SCC 393 (2002) 6 SCC 16 the plaintiff to
choose the forum best suited to him unless
there be a rule of law excluding access to a
forum of plaintiff's choice or permitting
recourse to a forum will be opposed to public
policy or will be an abuse of the process of
law."

19. It is trite that the rule of
pleadings postulate that a plaint must
contain material facts. When the plaint
read as a whole does not disclose
material facts giving rise to a cause of
action which can be entertained by a
civil court, it may be rejected in terms of
Order 7, Rule 11 of the Code. Similarly,
a plea of bar to jurisdiction of a civil
court has to be considered having regard
to the contentions raised in the plaint.
For
the
said
purpose,
averments
disclosing cause of action and the reliefs
sought for therein must be considered in
their entirety and the court would not be
justified in determining the question, one
way or the other, only having regard to
the reliefs claimed de'hors the factual
averments made in the plaint. (See:
Church of North India Vs. Lavajibhai
Ratanjibhai &Ors.6) (2005) 10 SCC 760."
1 All. Shriram Educational and Charitable Trust Registered Office & Anr. Vs. Alok Swaroop & Ors. 1305
 (emphasis added)

32. In the case of Saleem Bhai and
others v. State of Maharashtra and
others; 2003 (1) SCC 557 vide paragraph
9 the Apex Court has held thus:-

"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 suitbefore 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 non-exercising of
the jurisdiction vested in the court as well
as procedural irregularity. The High
Court, however, did not advert to these
aspects."

33. In the case of Madanuri Sri Rama
Chandra Murthy v. Syed Jalal, 2017 (13)
SCC 174 vide paragraph 7 the Apex Court
has observed thus:-

"7. 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 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."
 (emphasis added)

34. Further, I find support in my
observations regarding the present case
being one of the cases where only
institutional grounds have been taken and
needed determination/ adjudication by the
Court in the suit, from the judgment by
1306 INDIAN LAW REPORTS ALLAHABAD SERIES
the Apex Court in the case of Central
Provident Fund Commissioner, New
Delhi and others v. Lala J.R. Education
Society and others; 2016 (14) SCC 679
in which while considering on the merit
of the application under Order VII Rule
11 of C.P.C. the Court observed that the
plaint has to be seen and nothing else.
Vide paragraphs 3, 4 and 5 of the said
judgment the Court has held thus:-

"3. On an application filed
under Order VII, Rule 11, CPC, the Civil
Court can only see the pleadings in the
plaint and not anything else including
written statement.

4. The main grievance urged in
the plaint is that the procedure under the
Act has not been followed and, therefore,
the appellants are entitled to file a suit. If
that be so, the plaintiff is entitled to file a
suit, as held by this Court in the case of
Dhulabhai and Others Vs. The State of
Madhya Pradesh and Anr. reported in
(1968) 3 SCR 662.
5. According to the appellants, the
respondents have suppressed crucial facts
in the plaint, which if seen, the suit is only
to be dismissed at the threshold. Rejection
of a plaint on institutional grounds is
different from dismissal of a suit at pretrial
stage
on
the
ground
of
maintainability. For dismissal on a
preliminary issue, the Court is entitled
and liable to look into the entire
documents including those furnished by
the defendant."

35. Thus, applying the above law to
the facts of the present case, I do not find
any manifest error of law or facts in the
order passed by the court below while
rejecting the application under Order VII
Rule 11 of C.P.C. Equally, I do not find
any flaw in exercise of jurisdiction of the
trial judge in passing the order impugned
nor, I find any likelihood of miscarriage
of justice if suit is tried on merits
including the issue of maintainability or
institution of suit. I, therefore, decline to
interfere with the order passed by the trial
judge rejecting application under Order
VII Rule 11 C.P.C.

36. Since the crucial question of
maintainability of plaint case under Order
XXXVII of C.P.C. and maintainability of
the second suit on the ground of Order 2
Rule 2 has come to be raised, in my
considered opinion, those points can be
considered and disposed of as preliminary
issues as far as O.S. No.- 670 of 2018 is
concerned.

37. Learned counsels appearing for
the plaintiffs-respondents also does not
dispute the above question being decided
afresh as preliminary issues.

38. Accordingly, I dispose of this
petition with the following directions:-

(A). Either of the parties shall
appear before the court below and shall
place before the trial court a misc.
application along with certified copy of
this order praying for framing of those
two issues as observed hereinabove and
the court below shall frame those two
issues as preliminary issues and shall first
decide the same before proceedings
further in the suit on merits.

(B).