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Priyanshu Mehta (BUSINESS)     22 August 2017

7 rule 11 dismissed by lower court

As our 7 rule 11 dismissed by lower court stating following points : 1. The defendent argued that there is no Cause of action shown for bringing the dawa arji but plaintiff argued that defendant has given application at police for not to construct in the land and this can be treated as cause of action. 2. As per the defendant argument that the plaintiff has not paid court fees is hence the application is not maintainable but court can take steps for that but can not dismissed the plaintiff application. 3. As per the defendent argument stating that there is merely or without any evidence house numbers mentioned in house tax parchi receipt and and on this basis court can not dismiss the plaintiff application. 4. As per defendent arguement stating that plaintiff has mention the chaturth disha is not matching with panchnama and gram panchayat dakhla but plaintiff argued that the chatuth disha (fourth side location) are matching with panchnama and grampanchayat dakhla. As per above arguement the defendent's 7 rule 11 application court orders to be dismmised . �----------�_----�----------------------++++ Hello sir this was judgement from lower court. I want to know that can i go for appeal in district court or high court ? * What will be major impact if district court reject the appeal ? * Will the question arise that if the defendent was true the why didnt go for appeal ? * Next hearing is of plaintiff's stay order. Can the judge gives stay order againt dismissed 7 rule 11 application ? Please guide. Thank you


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 6 Replies

Siddharth Srivastava (Advocate)     22 August 2017

Which court has passed the order? The contents of order could not be assessed in absence details of facts of case. You have the right to go in appeal in higher court. All court below high court are lower court. If you donot challenge the order does not adversely affect your case. If you have merit then it is advised to challenge the order. If required consult with details. Sidharth 9811776422

Priyanshu Mehta (BUSINESS)     23 August 2017

Before district court has dismissed the 7 rule 11 and some lawyers here advice that no need to challenge this order...because there is cause of action mentioned

Advocate Bhartesh goyal (advocate)     23 August 2017

Revision u/ s 115 of cpc

lies against the order of dismissal of application u/o 7r 11 cpc and not appeal.Averments mentioned in plaint and documents filed with Plaint are only considered to decide the application.defence taken in W.S and documents in support of W.S are neither considered nor looked into.
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Priyanshu Mehta (BUSINESS)     23 August 2017

Sir,

Can I go for appeal or revision in against dismissed 7 rule 11 to district court ?? the next hearing is on stay of plaintiff.

Plaintiff have two nos of forged house tax receipt given by village sarpanch and one Gram Panchayat paper showing location of four sides of the plot. Can they (plaintiff) get stay without having valid documents ? As we have original purchase deed and we or our grandfather never sold to anyone also never made any deed. As plaintiff wants to grab the land by making subploting and dividing one plot into two on the basis of forged housetax receipts and Gram Panchayat paper. The gram panchayat sarpanch and village talati are with them. They also done panchnama which was wrongly done by court person who came for panchnama.

All this we told to judge our lawer done setting with plaintiff and didnt pleading well so the judge has dismissed our 7 rule 11. Now I want to know what can we do so that we can get stay order ?

I request you to guide us further as we are not from lawyer field too.

 

Priyanshu Mehta (BUSINESS)     24 August 2017

Sir, Can I go for appeal or revision in against dismissed 7 rule 11 to district court ?? the next hearing is on stay of plaintiff. Plaintiff have two nos of forged house tax receipt given by village sarpanch and one Gram Panchayat paper showing location of four sides of the plot. Can they (plaintiff) get stay without having valid documents ? As we have original purchase deed and we or our grandfather never sold to anyone also never made any deed. As plaintiff wants to grab the land by making subploting and dividing one plot into two on the basis of forged housetax receipts and Gram Panchayat paper. The gram panchayat sarpanch and village talati are with them. They also done panchnama which was wrongly done by court person who came for panchnama. All this we told to judge our lawer done setting with plaintiff and didnt pleading well so the judge has dismissed our 7 rule 11. Now I want to know what can we do so that we can get stay order ? I request you to guide us further as we are not from lawyer field too.

Read more at: https://www.lawyersclubindia.com/forum/7-rule-11-dismissed-by-lower-court-153156.asp

Azhagananth (Lawyer)     25 August 2017

You have the right to prefer only C.R.P before High Court as the Order 7 Rule 11 of C.P.C is not appeable order:
 
Also, It is only if the averments in the plaint  has be looked whether the plaint "does not disclose a cause of action or the suit appears to be barred under any law"
 In all other situations the Geuine of the documents, Transaction and others the claims will have to be adjudicated in the course of the trial after hearing both side side only. Refer the Jugdment Para 5:
 
Reported in 2015 SAR (Civil) 385
 
Link: https://indiankanoon.org/doc/17796417/
 
Supreme Court of India
P.V. Guru Raj Reddy & Anr vs P. Neeradha Reddy & Ors on 13 February, 2015
Bench: Ranjan Gogoi, Prafulla C. Pant
                                                                              REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.5254 OF 2006


P.V. GURU RAJ REDDY REP. BY
GPA LAXMI NARAYAN REDDY & ANR.             ...APPELLANTS

                       VERSUS

P. NEERADHA REDDY & ORS. ETC.             ...RESPONDENTS



                               J U D G M E N T

RANJAN GOGOI, J.

1. This appeal seeks to challenge two separate though largely similar orders both dated 26th June, 2003 passed by the High Court of Andhra Pradesh at Hyderabad in Civil Revision Petition Nos.1398 and 1399 of 2003. By the aforesaid orders, the High Court, in reversal of the order of the learned trial judge, has allowed the applications filed by the defendants under Order VII rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the CPC"). Aggrieved, the plaintiffs are before us in this appeal.

2. Original Suit Nos. 71 and 72 of 2002 were filed by the plaintiffs (appellants herein) for declaration of title and possession. The case of the plaintiffs in both the suits were more or less similar. According to the plaintiffs as they were living abroad they had reposed trust and faith in defendants Nos.1 and 2 who are their close relatives (sister and brother-in-law of plaintiff No.1) to purchase immovable property in Hyderabad in the name of the plaintiff No.2. According to the plaintiffs, they had made funds available to the defendants Nos. 1 and 2 for the said purpose and had entirely relied on them.

3. The specific case of the plaintiffs in Original Suit No.71 of 2002 is to the effect that the property belonging to one Professor N.S. Iyengar was identified for purchase and an agreement was drawn up with the said person. According to the plaintiffs, they were informed by the defendants that Professor Iyengar has resiled from the agreement which required filing a suit for specific performance. According to the plaintiffs when they visited Hyderabad in November/December 1999, they could notice some construction activity in the plot belonging to Professor Iyengar. It is at that point of time that they had made enquiries and could come to know that though the suit for specific performance filed by the defendants was decreed, the sale deed was executed in the name of the defendant No.4 who is the brother-in-law of the defendant No.1. It is thereafter that the suit being Original Suit No.71 of 2002 was filed.

4. Insofar as Original Suit No.72 of 2002 is concerned, the plaintiffs' case is that the property belonging to one Professor B. Ramchander Rao was identified for purchase. Though the defendant Nos.1 and 2 informed the plaintiffs that the needful was done, it transpired that the said property was purchased on 31.8.1979 jointly in the name of plaintiff No.2 and the defendant No.3, who is the son of defendant No.1. According to the plaintiffs immediately after they came to know of the said facts, they had issued a legal notice on 20.12.1999 and on receipt of the reply to the said notice which contained an unequivocal denial of the plaintiffs' claim, the suit being Original Suit No.72 of 2002 was filed. Both the suits were filed in July, 2002.

5. Rejection of the plaint under Order VII rule 11 of the CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order VII rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial.

6. In the present case, reading the plaint as a whole and proceeding on the basis that the averments made therein are correct, which is what the Court is required to do, it cannot be said that the said pleadings ex facie discloses that the suit is barred by limitation or is barred under any other provision of law. The claim of the plaintiffs with regard to the knowledge of the essential facts giving rise to the cause of action as pleaded will have to be accepted as correct. At the stage of consideration of the application under Order VII rule 11 the stand of the defendants in the written statement would be altogether irrelevant.

7. In Original Suit No.71 of 2002, the plaintiffs had averred that it is only in November/December 1999 when they came to India that they could come to know that the property of Professor Iyengar was sold to somebody else. Thereafter, they had issued a legal notice on 3.12.1999. The plaintiffs have further averred that it is only from the reply of the said notice that they could come to know of the true facts and the conduct of the defendants in conspiring to cheat the plaintiffs. Thereafter, according to the plaintiffs after obtaining the copy of the decree of specific performance passed in O.S. No.24/1985 and the judgment of the Appeal Court in A.S. 215/87 as well as the judgment of the High Court dated 13.1.1995, the suit in question was filed, inter alia, for:

|      | "a)  For a declaration that the Plaintiff has title  over the |
|      |schedule property and for possession of the suit schedule      |
|      |property from the defendants.                                  |
|      | b)  For cancellation of the judgment and decree passed in O.S.|
|      |24/85 on the file of the Court of the Principal Subordinate    |
|      |Judge, Ranga Reddy District at Saroornagar regarding the       |
|      |schedule property.                                             |
|      | c)   For permanent injunction restraining the defendants,     |
|      |their men and others on their behalf from further alienating   |
|      |the schedule property in favour of any other person.           |
|      | d)   For costs."                                              |


8. Similarly in Original Suit No.72 of 2002, according to the plaintiffs, they could come to know of the sale deed dated 31.8.1979 executed in favour of the plaintiff No.2 and the defendant No.3 only in the year 1999 immediately whereafter they had issued the legal notice dated 20.12.1999. According to the plaintiffs it is only subsequently that they came to know of sale of half of the scheduled property in favour of the defendant No.5. Accordingly they had filed the Original Suit No.72 of 2002 claiming the following reliefs:

|      |                                       |
|"a)   |For a declaration that the schedule    |
|      |property is the property of the 2nd    |
|      |plaintiff and for possession of the    |
|      |suit schedule property from the        |
|      |defendants to the 2nd plaintiff.       |
|b)    |For cancellation of the sale deed, dt. |
|      |31.8.1979 jointly executed in the name |
|      |of the 2nd plaintiff and the 3rd       |
|      |defendant, so far as the 3rd defendant |
|      |is concerned.                          |
|c)    |For cancellation of the sale deed,     |
|      |dated 10.02.1999, executed in the name |
|      |of the 5th defendant.                  |
|d)    |For permanent injunction restraining   |
|      |the defendants, their men and others on|
|      |their behalf from further alienating   |
|      |the schedule property in favour of     |
|      |other persons.                         |
|e)    |For costs."                            |


9. Both the suits were filed in July 2002 which is well within three years of the date of knowledge, as claimed by the plaintiffs, of the fact that the property had not been transferred in the name of plaintiff No.2 by the defendants Nos. 1 and 2. The aforesaid averments made in the plaint will have to be accepted as correct for the purposes of consideration of the application under Order VII rule 11 filed by the defendants Nos. 1 and 2. If that be so, the averments in the plaint would not disclose that either of the suits is barred by limitation so as to justify rejection of the plaint under Order VII rule 11 of the CPC.

10. There is yet another issue framed by the High Court as Question No.3 which is in the following terms:

|"|3. Whether the claims made in the | | |suit, as appearing in the statement in | | |the plaint, are hit by the provisions | | |of the Benami Transactions | | |(Prohibition) Act, 1983?" |

11. While in Civil Revision Petition No.1398 of 2003 the said issue was decided in favour of the plaintiffs, in Civil Revision Petition No.1399 of 2003 the same was decided against the plaintiffs. The finding of the High Court in this regard proceeds on the basis that the plaintiffs had admitted in the plaint that the property purchased in the name of the defendant No.3 belonged to the plaintiffs. Therefore the provisions of Benami Transactions (Prohibition) Act, 1988 would apply. We fail to see how the aforesaid view of the High Court can be sustained. The suits in question were not filed for recovery of any property held in benami by the defendants. Rather, the suit was for declaration of plaintiffs' title and for recovery of possession from the defendants, as already noted.

12. For the aforesaid reasons, the order of the High Court dated 26th June, 2003 has to be reversed. We, accordingly, do so and allow this appeal and direct the learned trial Court to hear and decide both the suits i.e. Original Suit No.71 of 2002 and Original Suit No.72 of 2002 on merits at an early date.

13. The appeal is disposed of in the above terms.

....................................J.

(RANJAN GOGOI) ....................................J.

(PRAFULLA C. PANT) NEW DELHI FEBRUARY 13, 2015.


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