Saleem Bhai v State of Maharashtra (2003)

Order VII Rule 11 is the defendant's shortest route out of a bad suit. Two questions decide every problem on it, and this case answers both:

1. What may the court look at? Only the averments in the plaint. 2. When may the court act? At any stage of the suit — and, crucially, without first requiring the defendant to file a written statement.

The second holding is the reason the case is set. A trial court which orders the defendant to file a written statement and postpones the Rule 11 application has not merely made a wrong order; it has failed to exercise the jurisdiction vested in it.

The plaintiffs filed suits in February 2002 in which they claimed, among other things, a declaration that a chain of earlier decisions — a judgment and decree of the III Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit No. 147 of 1967; the judgment and decree of the IV Additional District Judge, Nagpur in Regular Civil Appeal No. 16 of 1987; the judgment and decree of the Bombay High Court at Nagpur in Second Appeal No. 132 of 1992 approving them; the order of the Supreme Court in a special leave petition and in a review petition; and orders in revenue proceedings — were illegal, non-existent, null and void, passed without jurisdiction, and therefore not binding on the plaintiffs.

The appellant was the eighth defendant. He applied under Order VII Rule 11 to have the suits dismissed, contending before the Supreme Court that the plaints were liable to be rejected under clauses (a) and (d) — no cause of action, and a suit barred by law, the bars relied on being res judicata and lis pendens. The plaintiffs meanwhile applied under Order VIII Rule 10 for judgment because the appellant had filed no written statement, and the appellant applied under s. 151 asking the court to decide his Rule 11 application first.

By order of 8 December 2001 the trial judge dismissed the Order VIII Rule 10 application and the s. 151 application, and, on the Rule 11 application, directed the appellant to file his written statement. The High Court of Madhya Pradesh at Indore confirmed that order on 7 May 2002, reiterating the direction to file the written statement and observing that the trial court should frame issues of law and fact arising out of the pleadings and record a finding on the preliminary issue before trying the suit on facts.

Should an application under Order VII Rule 11 be decided on the allegations in the plaint alone, so that the filing of a written statement by the contesting defendant is irrelevant and unnecessary?

Yes. The common order was set aside and the cases remitted to the trial court to decide the Order VII Rule 11 application on the basis of the averments in the plaint, after affording the parties an opportunity of being heard.

The material is the plaint. A perusal of Order VII Rule 11 makes it clear that the relevant facts to be looked into on such an application are the averments in the plaint. For deciding an application under clauses (a) and (d) the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.

The stage is any stage. The trial court may exercise the power under Order VII Rule 11 at any stage of the suit — before registering the plaint, or after issuing summons to the defendant, at any time before the conclusion of the trial.

The characterisation of the error. A direction to file the written statement without deciding the Rule 11 application is a procedural irregularity touching the exercise of jurisdiction. The order therefore suffered from both non-exercise of the jurisdiction vested in the court and procedural irregularity, and the High Court had not adverted to these aspects.

For any Order VII Rule 11 problem, structure the answer in four steps.

One. Set out all six grounds in Rule 11 — no cause of action; undervaluation not corrected within the time fixed; insufficient stamp not supplied within the time fixed; the suit appearing from the statement in the plaint to be barred by any law; the plaint not filed in duplicate; and non-compliance with Rule 9 — noting that clauses (e) and (f) came in with effect from 1 July 2002.

Two. State the material and the stage, on this case's authority.

Three. Note the words of clause (d): the suit must appear from the statement in the plaint to be barred. That is why the defendant's version cannot be looked at. A bar which depends on facts the defendant must prove is a matter for trial, not for Rule 11.

Four. State the consequences: under s. 2(2) the rejection of a plaint is deemed to be a decree, so an appeal lies; under Order VII Rule 12 the judge must record an order with reasons; and under Order VII Rule 13 rejection does not of its own force preclude a fresh plaint on the same cause of action.

The order the trial court made was not simply an adjournment of the Rule 11 application. By directing a written statement it converted the summary enquiry on the plaint into a contested trial on pleadings — exactly the delay that Rule 11 exists to avoid. That is why the Supreme Court treated it as a failure to exercise jurisdiction rather than as a mere irregularity of procedure.

Note also the contrast with Order VII Rule 10. Rule 10 returns the plaint to be presented to the proper court because of a want of jurisdiction; Rule 11 rejects it on one of the six listed grounds and operates as a decree. Problems often supply facts for one and invite the language of the other.