Whether at the time of disposal of the application u/o 7 rule 11 of CPC only the facts mentioned in the plaint are to be looked into? yes.

 

The law has been settled by  Court in various decisions that while considering an application u/o 7 rule 11 of CPC, the court has to examine the averments in the plaint and the pleas taken by the defendants in its written statements would be irrelevant. Vide C Natrajan v/s Ashim Bai and another,(2007) 14 SCC 183, Ra Prakash Gupta vs Rajiv Kumar Gupta and others (2007) 10 SCC 59, Hardesh Ores (P) Ltd vs Hede and Company, (2007) 5SCC 614, Mayar (H.K) Ltd. And others vs Owners & Parties, Vessel M V Fortune Express and others,(2006) 3SCC 100, Sopan Sukhdeo Sable and others vs Assistant Charity Commissioner and others ,(2004) 3SCC 137, Saleem Bhai and others vs State of Maharashtra and others, (2003) 1 SCC 557]. The above view has been once again reiterated in the recent decision of this curt in The Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman vs M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee,2012(6) JT 149.”

 Their lordship of hon’ble Supreme Court in case The Church of Christ Charitable v/s M/s Ponniamman Educationql 2012(8) SCC 706, is pleased to hold that:­ “the appellant herein, as the first defendant before the trial judge, filed application u/o 7 rule 11 of CPC of the plaint on the ground that it does not show any cause of action against him, at the foremost, it is useful to refer the relevant provision.

It is clear from the above that where the plaint does not RCA: 56/2012 Praveen Kumar vs Nisha Verma 6Of 12 disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the court, insufficiently stamped and not rectified within the time fixed by the court, barred by any law, failed to enclose the required copies and the plaintiff fail to comply with the provisions of Rule 9, the court has no other option except to reject the same. A reading of the above provision also makes it clear that power under order 7 rule 11 of CPC can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trail . This position was explained by this court in Saleem Bhai & ors vs State of Maharashtra and others ,(2003) 1SCC 557, in which , while considering Order 7 rule 11 of CPC, it was held as under:­ “9. A perusal of Order 7 rule 11 of CPC 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 u/o 7 rule 11 of CPC 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.

For the purposes of deciding an application under clauses(a) and (d) of Rule 11 of order 7of CPC, 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 u/o 7 rule 11 of CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court…”.

It is clear that in order to consider order 7 rule 11, the court RCA: 56/2012 Praveen Kumar vs Nisha Verma 7Of 12 has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint.

While scrutinizing the plaint averments, it is the bounden duty of the trial court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words “cause of action” and cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue.”

Their Lordship of hon’ble Supreme Court of India in case D Ramachandran V/s R V Janakiraman and others AIR 1999 SC1128: (1999) 1SCR 983:(1999) 3SCC 267:JT 1999 (2) SC94:(1999)1 SCALE 693 has held that:­ “We do not consider it necessary to refer in detail to any part of the reasoning in the judgment; instead, we proceed to consider the arguments advanced before us on the basis of the pleadings contained in the election petition. It is well settled that in all cases of preliminary objection; the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made int he petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the court has to find out whether those averments disclose a cause of action or triable issue as such. The court can not probe into the facts on the basis of the controversy raised in the counter.

Under order VI, rule 16, the court is enabled to strike out a pleading (a) which may be unnecessary, scandalous, frivolous or RCA: 56/2012 Praveen Kumar vs Nisha Verma 8Of 12 vexatious or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit; or (c)which is otherwise an abuse of the process of the court. We have already pointed out that it is not the case of the first respondent that the pleading in the election petition is vitiated by all or any one of the aforesaid defects mentioned in the rule. Hence striking out parts of the pleading in this case was not at all justified.

On the other hand, Rule 11 enjoins the court to reject the plaint where it does not disclose a cause of action. There is no question of striking out any portion of the pleading under this rule. The application filed by the first respondent in O:A 36/97is on the footing that the averments in the election petition did not contain the material facts giving rise to a triable issue or disclosing a cause of action. On a reading of the petition, we do not find it possible to agree with him. The election petition as such does disclose a cause of action which if unrebutted could void the election and the provisions of O.VII, R.11(a) CPC the court cannot dissect the pleading into several parts and consider whether each one of theme discloses a cause of action. Under the rule, there cannot be a partial rejection of the plaint or petition. See Roop Lal Sathi v. Nachhattar Singh Gill (1982) SCC 487. We are satisfied that the election petition in this case could not have been rejected in limine without a trial.

Tilak Raj Bhagat vs Ranjit Kaur & Ors. 2012 VAD(DELHI) wherein it has been held that it may be worthwhile to mention here that while considering an application under order 7 rule 11 of CPC , the court has to look at the averments made in the plaint by taking the same as correct on its face value as also the documents filed in support thereof. Neither defence of the defendant nor averments made int he application have to be given any weightage. Plaint has to be read as a whole together with the documents filed by the plaintiff.”