# Smt. Archana Kanaujia & Anr v. Pooja Educational & Social Devp. Trust, Gorakhpur & Ors

- **Citation:** (2021) 10 ILRA 576
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-12-14
- **Case number:** Order on the Recall Application No.2 of 2021
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-archana-kanaujia-anr-v-pooja-educational-social-devp-trust-gorakhpur-ors-46379
- **Pages:** 6

## Headnote

Civil Law - Code of Civil Procedure, 1908 -
In the original suit-an application under
Order XXXIX Rule 1 CPC filed for grant of
interim injunction & anr. application was
filed
for
interim
injunction-during
pendency-defendant
filed
application
under Order 7 rule 11 (D) of C.P.C.-lower
court
rejected
the
Application
of
injunction
without
considering
the
Application under Order VII Rule 11 (D)-
impugned order bad-Court below directed
to pass appropriate orders on Application
under Order 7 Rule 11(d) of CPC and
thereafter any order in application for
interim injunction be passed.

W.P. allowed. (E-9)

List of Cases cited:

## Text

576 INDIAN LAW REPORTS ALLAHABAD SERIES
a solitary rent receipt placed on record to
show that the petitioners ever paid rent for the
shops in dispute to the respondent-landlady.
This Court also finds that there is no material
to show that at any stage in point of time, the
petitioners paid rent to whoever was the
landlord for the time being. Until his death, it
was Sardar Sundar Singh alone who was the
lawful and recorded tenant of the shops in
dispute. His heirs entitled to inherit having
not come forward to claim it, the finding of a
vacancy must logically follow. If the
petitioners' occupation at some point of time
after Sardar Sundar Singh fell ill is to be
taken note of, where they claim to carrying of
business separately in the two shops, the
finding of deemed vacancy is inescapable, as
the petitioners are not members of Sardar
Sundar Singh's family.

36. The impugned orders passed by the
RC & EO and the learned Additional District
Judge are flawless, both in law and equity -
equity this Court says because after all, the
petitioners never contracted a tenancy of the
shops in dispute with the landlady or an
earlier landlord. They have tried to attempt a
backdoor entry to claim their uncle's tenancy,
to which they are not entitled under the law.
They have never paid rent to the respondentlandlady or any earlier landlord, which
decisively tips the scale of equity against the
petitioners.

37. In the result, this petition fails and
stands dismissed with costs. The RC & EO is
free to enforce the impugned order of release
dated 14.12.2018 passed in favour of
respondent no. 3.

38. Let this order be communicated to
the RC & EO/Additional City MagistrateVII, Kanpur Nagar through the District
Magistrate, Kanpur Nagar by the Registrar
(Compliance).
----------
(2021)10ILR A576
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2021

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Matters Under Article - 227 No. 3825 of
2021 (Civil)

Smt. Archana Kanaujia & Anr....Petitioners
Versus
Pooja Educational & Social Devp. Trust,
Gorakhpur & Ors. ...Respondents

Counsel for the Petitioners:
Sri Raj Kumar Pandey

Counsel for the Respondents:
Sri Kamlesh Kumar Mishra, Sri A.P. Tiwari

Civil Law - Code of Civil Procedure, 1908 -
In the original suit-an application under
Order XXXIX Rule 1 CPC filed for grant of
interim injunction & anr. application was
filed
for
interim
injunction-during
pendency-defendant
filed
application
under Order 7 rule 11 (D) of C.P.C.-lower
court
rejected
the
Application
of
injunction
without
considering
the
Application under Order VII Rule 11 (D)-
impugned order bad-Court below directed
to pass appropriate orders on Application
under Order 7 Rule 11(d) of CPC and
thereafter any order in application for
interim injunction be passed.

W.P. allowed. (E-9)

List of Cases cited:

1. Azhar Hussain Vs Rajiv Gandhi reported in
1986 (Supp) SCC 315

2.R.K. Roja Vs Rayudu reported in (2016) 14
SCC 275

(Delivered by Hon'ble Prakash Padia, J.)
10 All. Smt. Archana Kanaujia & Anr. Vs. Pooja Educational & Social Devp. Trust, Gorakhpur & Ors.
577

Order on the Recall Application
No.2 of 2021

1. Civil Misc. Recall Application No.
2 of 2021 has been filed by the contesting
respondent nos. 1 & 2 to recall the order
dated 11.8.2021 passed by this Court in the
present petition.

2. Today when the matter is taken up,
a prayer has been made by Sri Kamlesh
Kumar Mishra, learned counsel appearing
on behalf of the respondent nos. 1 & 2 that
the respondent nos. 1 & 2 do not want to
press the present recall application.

3. The recall application is dismissed
as not pressed.

Order on the Petition

1. The affidavit of service filed in the
Court today is taken on record.

2. It is stated by learned counsel for
the respondent nos. 1 & 2 that he does not
propose to file counter affidavit in the
present petition.

3. Heard learned counsel for the
petitioners and Sri A.P. Tiwari Advocate
along with Sri Kamlesh Kumar Mishra,
learned
counsel
for
the
contesting
respondent nos. 1 & 2.

4. The petitioners have preferred the
present petition under Article 227 of the
Constitution of India inter-alia with the
following prayer :

"(1) Set aside impugned order
dated 12.7.2021 passed by the learned
Civil Judge, Senior Division, Gorakhpur in
Original Suit No. 298 of 2021 (Pooja
Educational and others vs. Rajesh Kumar
Raina and others) only to the extent it
observes that the application '49Ga' jointly
filed by the petitioner no. 1/defendant no. 2
and respondent no. 3/defendant no. 3 under
Order 7 Rule 11(d) of C.P.C. shall be
heard and decided after hearing and
disposal of interim injunction application
'7C'
filed
on
behalf
of
the
respondents/plaintiffs under Order 39 Rule
1 of C.P.C. on the next date fixed in the
case."

5. Facts in brief as contained in the
petition are that an Original Suit No.298 of
2021 (Pooja Educational and others Vs.
Rajesh Kumar Raina and others) has been
filed by Pooja Educational and Social
Development Trust and others in the Court
of Civil Judge (S.D.) Gorakhpur. In the
aforesaid suit, an application under Order
XXXIX Rule 1 CPC being Application
No.7 C for grant of interim injunction was
also filed on 13.04.2021. Subsequently,
another application was also filed on
22.6.2021 for grant of interim injunction
till the disposal of application No.7C.
During the pendency of the aforesaid
application,
defendants
preferred
an
application as provided under Order 7 Rule
11 (D) of C.P.C. stating therein that the suit
is barred by Order VII Rule (IV-A)) as per
Suit Valuation Act as well as Court Fees
Act. The aforesaid application was marked
as
Paper
No.49
Ga.
The
aforesaid
application was rejected by the Trial Court
vide
judgement
and
order
dated
12.07.2021.
Aggrieved
against
the
aforesaid
order,
the
petitioners
have
preferred the present petition.

6. It is argued by learned counsel for
the defendants/petitioners that once an
application has been preferred under Order
VII Rule 11 (D) C.P.C. it is settled law that
the court should decide the said application
578 INDIAN LAW REPORTS ALLAHABAD SERIES
first and only thereafter to proceed with the
injunction application. Learned counsel for
the petitioners relied upon a Division
Bench judgement of this Court in the case
of Arun Kumar Tiwari Vs. Deep Sharma
(First Appeal From Order No.3481 of
2004) decided on 15.2.2006. In support of
his argument, learned counsel for the
petitioners relied upon paragraph 11 of the
aforesaid judgement, the same is quoted
below:-

"11. It was contended that that in
view of the spirit of the aforesaid provision
it was very much necessary for the court to
have first decided the matter of court fees (
when it had been raised ) and then it should
have considered the injunction application.
It was further submitted that it is virtually a
dummy suit which has been filed at the
instance of previous owners of the house by
the plaintiff tenants because otherwise
there was no necessity for the plaintiff
tenants to challenge the sale deed executed
by defendant no.1 in favour of defendant
no. 5. He pointed out that no service could
yet be effected upon the previous owners
(defendants no. 1 to 4 ) inspite of the fact
that the suit was filed in the year 2003 and
the only purpose of the suit filed by the
tenant is to raise the un-necessary dispute
of ownership of the property among the
defendants inter se so that the matter may
not be considered and decided early, and
the plaintiff tenants may be able to continue
in the disputed rooms for a long period.
There appears some force in these
contentions of the defendant appellant."

7. On the other hand, it is argued Sri
A.P. Tiwari, learned counsel for the
respondent Nos.1 and 2 that order passed
by the court below is absolutely perfect and
valid and does not call for any interference
by this Court. He further argued that there
is no illegality or irregularity cause by the
Court below while directing that the
application No.7C should be decided first.

8. Heard learned counsel for the
parties and perused the record.

9. From perusal of the record, it is
clear that during the pendency of the suit in
which injunction application was filed, an
application under Order VII Rule 11(D)
C.P.C. was also filed by the defendants.

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
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
10 All. Smt. Archana Kanaujia & Anr. Vs. Pooja Educational & Social Devp. Trust, Gorakhpur & Ors.
579
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."
(emphasis supplied)

11. The aforesaid proposition of law
has been reiterated by the Hon'ble Apex
Court in the case of R.K. Roja Vs. Rayudu
reported in (2016) 14 SCC 275. In the
aforesaid
judgement,
following
observations were made by the Hon'ble
Apex Court :-

"5. 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
580 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

6. In Saleem Bhai v. State of
Maharashtra, (2003) 1 SCC 557, this Court
has also held that: (SCC p. 560, para 9)

"9. ... a direction to file the written
statement without deciding the application
under Order 7 Rule 11 cannot but be a
procedural
irregularity
touching
the
exercise of jurisdiction by the trial court."

However, we may hasten to add
that the liberty to file an application for
rejection under Order 7 Rule 11 CPC
cannot be made as a ruse for retrieving the
lost
opportunity
to
file
the
written
statement.

7. Apparently, in the present case,
it is seen that Annexure P-4, affidavit dated
15-3-2015, with a prayer ... "to dismiss the
present election petition under Order 7
Rule 11 CPC...", was filed within thirty
days of the receipt of the summons in the
election petition. However, the court was
not inclined to consider the same in the
absence of a formal application, and thus,
Annexure P-5, Application No. EA No. 222
of 2016 was filed on 22-2-2016 leading to
the
impugned
order,
posting
the
application for consideration at the time of
final hearing.

8. 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." (emphasis supplied)

12. From the discussion made above
as well as the decisions as stated above, it
is clear that the court below has committed
a manifest and grave error of law. A
litigation which is vexatious or is otherwise
contended to be barred by law cannot be
permitted to proceed to a full length trial.
This would clearly be contrary to the
legislative intendment underlying under
Order VII Rule 11. Adoption of a course of
action as has been done by the court below
in the facts of the present case would
clearly do injustice to a valuable right
conferred upon a defendant by the
aforementioned provision.

13. Considering the facts and
circumstances of the case and also in the
interest of justice, the Court is of the
opinion that the order passed by the court
below dated 12.7.2021 is liable to be set
aside and is hereby set aside. The court
10 All. Punit Yadav Vs. State of U.P. & Anr.
581
below is directed to pass appropriate orders
on the application filed under Order 7 Rule
11(d)
of
C.P.C.
most
expeditiously,
preferably within a period of three months
from the date of presentation of a copy of
this order. It is made clear that the court
below shall pass an order on the application
for interim injunction only after order is
passed on the application filed under Order
7 Rule 11(d) of C.P.C.

14. The petition is allowed with the
aforesaid directions.
----------
(2021)10ILR A581
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.09.2021

BEFORE

THE HON'BLE RAJEEV MISRA, J

Criminal Revision No. 987 of 2021

Punit Yadav ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Rajiv Lochan Shukla, Sri Abhishek
Narayan Pandey

Counsel for the Opposite Parties:
A.G.A., Sri Mool Chandra Maurya, Sri Anil
Srivastava (Senior Adv.)

Criminal
Law
-
Code
of
Criminal
Procedure,
1973
-
Section
319
-
Revisionist
summoned
to
face the
trial-summoning
order
impugnedRevisionist
was
named
in
FIR-not
chargesheeted-complicity
of
Revisionist
in
crime
stands
established-he damaged teh car-eye
witness-two Pws deposed Revisionist's
pressence-summoning order legal.

Revision dismissed. (E-9)
List of Cases cited:

1. Hardeep Singh Vs St. of Punj.& ors., (2014) 3
SCC 92,

2. S. Mohammed Ispahani Vs Yogendra Chandak
& ors., (2017) 16 SCC 226

3. Brijendra Singh & ors. Vs St. of Raj., (2017)
SCC 706.

4. Dharam Pal & ors. Vs St. of Har. & anr.,
(2014) 3 SCC 306 (Constitution Bench)

5. Hardeep Singh Vs St. of Punj. & ors., (2014)
3 SCC 92 (Constitution Bench)

6. Babubhai Bhimabhai Bokhiria & anr. Vs St.of
Guj. & ors., (2014) 5 SCC 568

7. Jogendra Yadav & ors. Vs St. of Bihar & anr.,
(2015) 9 SCc 244

8. Brijendra Singh & ors. Vs St.of Raj., (2017)
SCC 706

9. S Mohammed Ispahani Vs Yogendra Chandak
& ors., (2017) 16 SCC 226

10. Deepu @ Deepak Vs Sta. of M.P., (2019) 2
SCC 393

11. Dev Wati & ors. Vs St. of Har. & anr. (2019)
4 SCC 329

12. Periyasamai & ors. Vs S.Nallasamy, (2019) 4
SCC 342

13. Sunil Kumar Gupta & ors. Vs St. of U.P. &
ors., (2019) 4 SCC 556

14. Rajesh & ors. Vs St of Har, (2019) 6 SCC
368

15. Sukhpal Singh Khaira Vs St of Punj, (2019) 6
SCC 638

16. Mani Pushpak Joshi Vs St of Uttarakhand &
anr., (2019) 9 SCC 805

17. Sugreev Kumar Vs St of Punj & ors., (2019)
SCC Online Sc 390