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REPORTABLE        

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.       5343              OF     2012   (Arising out of SLP (C) No. 36006 of 2010

Bhau Ram                  .... Appellant (s)

Versus

Janak Singh & Ors.                      .... Respondent(s)

J     U     D     G     M     E     N     T      

P.     Sathasivam,     J.   

1) Leave granted.

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:

(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 @  

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Madna Wati and was in occupation of Shankar Lal as a  

tenant.  After coming into force of the Himachal Pradesh  

Abolition of 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, Madna Wati  

sold the suit land to Panu Ram (defendant No.2) on  

22.10.1960.  Defendant No.2 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 Madna Wati in the application pending  

before the Compensation Officer.  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.  

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(b) Against the said order, Kamla 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  

Compensation Officer, one Raghunath Singh Thakur of Marina  

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 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  

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.

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(d) During the pendency of the appeal before the High 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  

before the sub-Judge, Ist Class, Shimla.  During the pendency  

of the appeal, Reshmoo Devi died on 25.09.1985.  An  

application under Order XXII 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  

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  

herein, who was the nephew of Reshmoo Devi, filed an  

application to implead himself as L.R. of Reshmoo Devi.  By  

order dated  29.11.1986,  sub-Judge Ist Class, Shimla held  

that Bhau Ram, the appellant herein, being the son of real  

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brother of Shankar Lal, husband of Reshmoo Devi is the only  

legal representative.   

(g) The appeal filed by Kamla Devi & Ors. was registered 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 appellant herein, who was  

substituted as L.R., filed second appeal being R.S.A. No.113 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  

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-

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  

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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.   

(j) 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  

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  

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.

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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 ascertain an answer for the above question,  

we have to consider whether the application under Order VII  

Rule 11 CPC filed by the defendant can 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/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 XXIII 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 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.   

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7) It is relevant to point out the findings of the trial Court  

particularly with reference to the Suit No. 424/1 of 99/97  

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 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, 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 XXIII Rule 1 (3)  

& 4 (b) 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  

statements would be irrelevant.  [vide C. Natrajan vs. Ashim  

Bai 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  

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614, Mayar (H.K.) Ltd. and Others vs. Owners & Parties,  

Vessel M.V. Fortune Express and others, (2006) 3 SCC 100,  

Sopan 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  

SCC 557].  The above view has been once again reiterated in  

the recent decision of this Court 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.

9) As rightly pointed out by learned counsel for the  

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 plaint can be looked into while deciding the application  

under Order VII Rule 11.  This aspect has been rightly dealt  

with by the High Court.  

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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 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 copy of this judgment.   

11) Consequently, the civil appeal is dismissed with the  

above direction.  No order as to costs.          

...…………….…………………………J.            (P. SATHASIVAM)                                  

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

NEW DELHI; JULY 20, 2012.  

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