BHAU RAMversusJANAK SINGH & ORS.

                         [2012] 6 S.C.R. 1018


A                              BHAU RAM
                                    v.
                        JANAK SINGH & ORS.
                   (Civil Appeal No. 5343 of 2012)
                             JULY 20, 2012
B
           [P. SATHASIVAM AND RANJAN GOGOi, JJ.]

         CODE OF CIVIL PROCEDURE, 1908:

c        0. 7, r. 11 rlw s. 151 - Application for rejection of plaint -
    Held: While considering an application under 0. 7, r. 11, the
    court has to examine the averments· in the plaint; and the
    pleas taken by the defendant in the written statement would
    be irrelevant - High Gourt is fully justified in confirming the
0   decision of the appellate court remitting the matter to trial court
    for consideration of all the issues.

         In respect of the suit land, the application of the
    tenant for proprietary rights uls 11 of the Himachal
    Pradesh Abolition of Big Landed Estates and Land
E   Reforms Act, 1953, was ultimately allowed by the High
    Court in the second appeal filed by the appellant, who,
    after the death of the widow of the tenant, being their
    nephew, was substituted in the proceedings. The SLP of
    the purchaser, who had meanwhi.le purchased the suit
F   land from the owner thereof, was dismissed by the
    Supreme Court. Involving the same issue, one 'AS' who
    had earlier unsuccessfully filed an application for
    substitution after the death of the widow of the tenant
    claiming under a will, filed suit no. 424/1 of 99/97. The said
G   suit was dismissed for default, but was subsequently
    restored. He again filed suit no. 10/1 of 2004 for
    possession of the suit land. The appellant filed an
    application under 0. 7 r.11 read with s.151 CPC for
    rejection of the plaint which was allowed by the trial court
H                                1018
        BHAU RAM v. JANAK SINGH & ORS.                  1019


on the ground that the plaint was barred under the              A
provisions of 0. 9, rr. 8 and 9 and 0. 23, rr.1(3) and 4(b)
CPC. The suit filed by 'AS' was dismissed, but the appeal
filed by him was allowed on the ground that the trial court
had taken the pleas from the written statement which was
not permissible under 0. 7, r.11 CPC. By the impugned           8
order, the High Court dismissed the second appeal filed
by the appellant.

     Dismissing the appeal, the Court

     HELD: 1.1. The questions of law, as raised in the          C
second appeal, before the High Court are no longer
needed to be decided in view of the settled law that while
deciding the application under 0. 7, r.11, the.court has to
examine the averments in the plaint and the pleas taken
by the defendant in the written statement would be              o
irrelevant. This aspect has been rightly dealt with by the
High Court. [para 8-9] [1024-G-H; 1025-A, D-E]

       C. Natrajan vs. Ashim Bai and Another 2007 (11) SCR
  33 = (2007) 14 SCC 183, Ram Pi'akash Gupta vs. Rajiv          E
                                                =
  Kumar Gupta and Others, 2007 (10 ) SCR 520 (2007) 10
  SCC 59, Hardesh Ores (P) Ltd. vs. Hede and Company 2007
  (6 ) SCR 608 = (2007) 5 SCC 614, Mayar (H.K.) Ltd. and
. Others vs. Owners & Parties, Vessel M. V. Fortune Express
  and others, 2006 (1) SCR 860 = (2006) 3 SCC 100, Sopan
  Sukhdeo Sable and Others vs. Assistant Charity                F
  Commissioner and Others, 2004 (1) SCR 1004 = (2004) 3
 SCC 137, Saleem Bhai and Others vs. State of Maharashtra
 and Others 2002 (5) Suppl. SCR 491    = (2003) 1 SCC 557;
  The Church of Christ Charitable Trust & Educational
 Charitable Society, represented by its Chairman vs. Mis        G
 Ponniamman Educational Trust represented by its
 Chairperson/Managing Trustee, 2012 (6) JT 149 - relied on

    1.2. It is significant to note that Suit No. 424/1 of 99/
                                                                H
    1020    SUPREME COURT REPORTS               [2012] 6 S.C.R.


A 97 which was dismissed for default had been restored by
  the trial court even at the time of filing of the application
  by the defendant under 0. 7, r.11 CPC and the said
  proceedings are going on. In view of the same, the
  provisions of 0.9, rr. 8 and 9 CPC are not applicable to
8 the said suit. Even otherwise, the relief sought in the suit
  (which was earlier dismissed for default) and in the
  instant suit are with regard to different properties. For the
  same reasons, the provisions of 0.23, rr. 1 (3) and 4 (b)
  of CPC are not applicable. [para 7) [1024-E-G]

C        1.3. The High Court is fully justified in confirming the
    decision of the appellate court remitting the matter to the
    trial court for consideration of all the issues. The trial
    court is directed to decide the suit in its entirety
    considering all the issues. [para 10) [1025-F]
D
                         Case Law Reference:
        2007 (11) SCR 33            relied on           para 8
        2007 (10) SCR 520           relied on           para 8
E       2007. (6) SCR 608           relied on           para 8
        ·2006 (1) SCR 860           relied on           para 8
        2004 (1) SCR 1004           relied on           para 8

F       2002 (5) Suppl. SCR 491 relied on               para 8
        2012 (6) JT 149             relied on           para 8
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    5343 of 2012.
G
        From the Judgment & Order dated 20.9.2010 of the High
    Court of Himachal Pradesh at Shimla in RSA No. 501 of 2009.

        Radhika Gautam, Mahesh Agarwal, Rishi Agrawala,
    Abhinav Agrawal, E.C. Agrawala for the Appellant.
H
        BHAU RAM v. JANAK SINGH & ORS.                   1021


    Sudhir Chandra, T.V. Ratnam, Munawwar Naseem,                A
Bhagabati Prasad Padhy for the Respondents.
    The Judgment of the Court was delivered by
    P. SATHASIVAM, J. 1. Leave granted.
                                                                 B
    2. This appeal is directed against the final judgment and
order dated 20.09.2010 passed by the High Court of Himachal
Pradesh at Shimla in R.S.A. No. 501 of 2009 whereby the High
Court dismissed the appeal filed by the appellant herein.
    3. Brief facts:                                              c
     (a) One Shanker Lal owned and possessed several lands
in District Shimla including the land in question. Originally the
land in question was owned by Smt. Lari Mohansingh @
Macina Wati and was in occupation of Shankar Lal as a tenant.
After coming into force of the Himachal Pradesh Abolition of D
Big Landed Estates and Land Reforms Act, 1953, Shanker Lal,
moved an application on 21.01.1957, for proprietary rights
under Section 11 of the said Act before the Compensation
Officer, Mahesu. In the meantime, Macina Wati sold the suit land
to Panu Ram (defendant No.2) on 22.10.1960. Defendant No.2 E
purchased the said land as benami in the name of his wife
Kamla Devi (defendant No.1), who was a minor at that time.
After the sale of suit land, defendant No.1 through defendant
No.2 was substituted as respondents in place of Macina Wati
in the application pending before the Compensation Officer. F
During the pendency of the application, Shanker Lal died on
07.06.1960 and after his death, his wife Reshmoo Devi was
substituted as his legal representative. Vide his order dated
31.08.1964, the Compensation Officer allowed the application
and granted proprietary rights to Reshmoo Devi.                   G
     (b) Against the said order, Kam la Devi (defendant No.1)
preferred an appeal before the District Judge, Mahesu, who,
by his order dated 14.12.1966, dismissed the same.

   (c) During the pendency of the proceedings before the
                                                                 H
Compensation Officer, one Raghunath Singh Thakur of Marina
    1022     SUPREME COURT REPORTS                 [2012] 6 S.C.R.


A Hotel, Shimla filed a Civil Suit No. 80/1 of 1962 in the Court of
  Sub-Judge, Mahesu against Madna Wati and Kamla Devi
  alleging that the suit land along with other land property was
  mortgaged with him by Madna Wati and, therefore, she had no
  rights to sell or transfer the suit land. The said suit was decreed
B in favour of Raghunath Singh. Aggrieved by the said order, they
  filed an appeal before the Judicial Commissioner, Himachal
  Pradesh at Shimla and Reshmoo Devi also preferred an
  appeal before the Judicial Commissioner, Shimla. Both the
  appeals were transferred to. the High Court of Himachal
c Pradesh. The High Court allowed the appeal preferred by
  Reshmoo Devi and set aside the order of the sub-Judge
  Mahesu to the extent it affected her rights and further directed
  her to seek remedy against Kamla Devi by a separate suit.
       (d) During the pendency of the appeal before the High
D Court, since the possession was forcibly taken from Reshmoo
  Devi, she filed a suit for recovery of possession being Suit No.
  61 /1 of 1976 before the Sub-Judge (I), Shima which was
  decreed in her favour on 25.03.1985.
       (e) Aggrieved by that judgment, Kamla Devi filed an appeal
E before the sub-Judge, 1st Class, Shimla. During the pendency
  of the appeal, Reshmoo Devi died on 25.09.1985. An
  application under Order XXll Rule 4 of the Code of Civil
  Procedure, 1908 (in short "CPC") was filed by the sister of
  Reshmoo Devi for bringing her on record as legal
F representative (L.R.). However, another application was filed
  by Hira Singh and Attar Singh that they may be brought on
  record as L.Rs of Reshmoo Devi on the basis of a Will.
       (f) Challenging the said Will, Bhau Ram, the appellant
G herein, who was the nephew of Reshmoo Devi, filed an
  application to implead himself as LR. of Reshmoo Devi. By
  order dated 29.11.1986, sub-Judge 1st Class, Shimla held that
  Bhau Ram, the appellant herein, being the son of real brother
  of Shankar Lal, husband of Reshmoo Devi is the only legal
H representative.
        BHAU RAM v. JANAK SINGH & ORS.                      1023
              [P. SATHASIVAM, J.]

     (g) The appeal filed by Kamla Devi & Ors. was registered        A
as Civil Appeal No. 118-S/13 of 1987. By order dated
02.12.1987, the Additional District Judge allowed the appeal
and dismissed the suit filed by Reshmoo Devi for possession
as barred by limitation. The appell_ant herein, who was
substituted as L.R., filed second appeal being R.S.A. No.113         B
of 1988 before the High Court which was allowed by the High
Court on 25.05.2000.
    (h) Against that order, Kamla Devi & Ors. filed special
leave petition before this Court which was dismissed.
      (i) Involving the same issue, Attar Singh filed a Suit being
                                                                     c
Suit No. 424/1 of 99/97 in the Court of sub-Judge-IV, Shimla
which was dismissed for default on 23.02.2001 but the same
was restored vide order dated 14.08.2002. He again filed a
Civil Suit No. 10/1 of 2004 before the Civil Judge (Jr. Division-    D
II) Rohru, Shimla for possession of the suit land belonging to
Reshmoo Devi. During the course of proceedings, the appellant
herein filed an application under Order VII Rule 11 read with
Section 151 of CPC for rejection of the plaint on certain
grounds. By order dated 17 .11.2004, the Civil Judge allowed
the application and dismissed the suit filed by Attar Singh.         E

     0) Against the said order, Attar Singh filed F.A. No. 90-S/
13 of 2005 before the District Judge (Forest), Shimla. After the
death of Attar Singh, Kamla Devi was brought on record as his
legal representative. Vide order dated 31.07.2009, the District
                                                                     F
Judge (Forest) allowed the appeal. Challenging the said order,
the appellant herein and his sister, Kular Mani, filed R.S.A. No.
501 of 2009 before the High Court. By the impugned order
dated 20.09.2010, the High Court dismissed the appeal.
Against the said order, the appellant herein filed an appeal by      G
way of special leave petition before this Court.
    4. Heard Ms. Radhika Gautam, learned counsel for the
appellant and Mr. Sudhir Chandra, learned senior counsel for
respondent No.1 and Mr. T. V. Ratnam, learned counsel for
respondent No.2.                                                     H
    1024     SUPREME COURT REPORTS                   [2012] 6 S.C.R.


A        5. The only point for consideration in this appeal is whether
    the High Court is justified in confirming the decision of the lower
    appellate Court and remitting the matter to trial Court for fresh
    consideration of all the issues.
        6. In order to ascerfain an answer for the above question,
B we have to consider whether the application under Order VII
  Rule 11 CPC filed by the defendant cc;1n be decided merely on
  the basis of the plaint and whether the other materials filed by
  the defendant in support of the application can also be looked
  into. The trial Court allowed the application of the appellant/
C defendant No.1 filed under Order VII Rule 11 CPC on the
  ground that the plaint was barred under the provisions of Order
  IX Rules 8 & 9 CPC and Order XXlll Rule 1 (3) & 4 (b) of CPC.
  The said order of the trial Court was set aside by the first
  appellate Court on the ground that the trial Court had taken the
o pleas from the written statement of the defendant which is not
  permissible under Order VII Rule 11 CPC and the High Court
  in the second appeal confirmed the judgment of the first
  appellate Court.
       7. It is relevant to point out the findings of the trial Court
E particularly with reference to the Suit No. 424/1 of 99197 which
  was dismissed for default had been restored by the trial Court
  even at the time of filing of the application by the defendant
  under Order VII Rule 11 CPC and it is also brought to our notice
  that the said proceedings are going on. In view of the same,
F the provisions of Order IX Rules 8 and 9 CPC are not
  applicable to the said suit. Even otherwise, the relief sought in
  the suit (which was earlier dismissed for default) and in the
  present suit are with regard to different properties. For the
  same reasons, the provisions of Order XXlll Rule 1 (3) & 4 (b)
G of CPC are not applicable.
         8. The law has been settled by this Court in various
    decisions that while considering an application under Order VII
    Rule 11 CPC, the Court has to examine the averments in the
    plaint and the pleas taken by the defendants in its written
H
         BHAU RAM v. JANAK SINGH & ORS.                     1025
               [P. SATHASIVAM, J.]

statements would be irrelevant. [vide C. Natrajan vs. Ashim Bai      A
and Another, (2007) 14 SCC 183, Ram Prakash Gupta vs.
Rajiv Kumar Gupta and Others, (2007) 10 SCC 59, Hardesh
Ores (P) Ltd. vs. Hede and Company, (2007) 5 SCC 614,
Mayar (H.K.) Ltd. and Others vs. Owners & Parties, Vessel
M. V. Fortune Express and others, (2006) 3 SCC 100, Sopan            B
Sukhdeo Sable and Others vs. Assistant Charity
Commissioner and Others, (2004) 3 SCC 137, Saleem Bhai
and Others vs. State of Maharashtra and Others, (2003) 1
sec 557]. The above view has been once again reiterated in
the recent decision of this Court in The Church of Christ            c
Charitable Trust & Educational Charitable Society,
represented by its Chairman vs. Mis Ponniamman
Educational Trust represented by its Chairperson/Managing
Trustee, 2012 (6) JT 149.
     9. As rightly pointed out by learned counsel for the            D
respondents,. the questions of law, as raised in the second
appeal, before the High Court are no longer needed to be
decided in view of the settled law that only the averments in the
plain~ can be looked into while deciding the application under
Order VII Rule 11. This aspect has been rightly dealt with by        E
the High Court.
      10. In.the light of the above discussion and in view of the
settled legal position, as mentioned above, we are of the view
that the High Court is fully justified in confirming the decision
of the appellate Court remitting the matter to the trial Court for   F
consideration of all the issues. In view of the fact that the suit
is pending from 2002, we direct the trial Court to decide the
suit in its entirety considering all the issues, after affording
adequate opportunity to both the parties, and dispose of the
same within a period of six months from the· date of receipt of      G
copy of this judgment.

    11. Consequently, the civil appeal is dismissed with the
above direction. No order as to costs.

R.P.                                        Appeal dismissed.        H