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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5540    OF 2016 (Arising out of S.L.P.(C) No. 15474 of 2016)

R. K. ROJA ...  APPELLANT (S)

VERSUS

U. S. RAYUDU AND ANOTHER   ... RESPONDENT (S)

J  U  D  G  M  E  N  T

KURIAN, J.:

   Leave granted.  

2. The appellant has two grievances - (i) The Court has not

disposed of an application filed by her under Order VII Rule 11

of The Code of Civil Procedure, 1908 (hereinafter referred to as

‘the Code’) for rejection of the Election Petition and the same

has been posted along with the main petition and (ii)  She is

denied an opportunity to file written statement.

3. The  first  respondent  herein  filed  an  Election  Petition

challenging  the  election  of  the  appellant  to  the  289  Nagiri

Assembly  Constituency.  Appellant  was  declared  elected  on

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16.05.2014.  The  election  petition  is  dated  30.06.2014.  On

receipt  of  notice  in  the  Election  Petition,  the  appellant  filed

Annexure-P/4-application  for  rejection  of  the  Petition,  under

Order VII Rule 11 of the CPC by way of a counter affidavit. It

appears that the court declined to consider the same on the

ground  that  there  was  no  formal  application  and  hence

proceeded  with  the  trial.  At  that  stage,  appellant  filed

Annexure-P/5-formal  application  for  rejection  of  the  Election

Petition on the ground that the Election Petition did not disclose

any cause of action. That application as per the impugned order

dated 27.04.2016 was posted along with the main petition, and

thus, the appeal.

4. The High Court has taken the view that the same “was

not filed at the earliest opportunity” and that appellant was not

diligent in prosecuting the application. Therefore, the court took

the view that … “this application filed by the first respondent

shall be decided at the time of final hearing …”.  

5. We are afraid that the stand taken by the High Court in

the  impugned  order  cannot  be  appreciated.  An  application

under Order VII Rule 11 of the CPC can be filed at any stage, as

held by this Court in  Sopan Sukhdeo Sable and others v.

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Assistant Charity Commissioner and others1 … “The trial

court can exercise the power 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 only restriction is that the consideration of the application

for rejection should not be on the basis of the allegations made

by the defendant in his written statement or on the basis of the

allegations  in  the  application  for  rejection  of  the  plaint.  The

court has to consider only the plaint as a whole, and in case,

the entire plaint comes under the situations covered by Order

VII Rule 11 (a) to (f) of the CPC, the same has to be rejected.  

6. Once an application is filed under Order VII Rule 11 of

the  CPC,  the  court  has  to  dispose  of  the  same  before

proceeding  with  the  trial.  There  is  no  point  or  sense  in

proceeding with the trial of the case, in case the plaint (Election

Petition  in  the  present  case)  is  only  to  be  rejected  at  the

threshold.  Therefore,  the  defendant  is  entitled  to  file  the

application for rejection before filing his written statement. In

case, the application is rejected, the defendant is entitled to file

his  written  statement  thereafter  (See  Saleem  Bhai  and

1 (2004) 3 SCC 137

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others v. State of Maharashtra and others2). But once an

application for rejection is filed, the court has to dispose of the

same before proceeding with the trial court. To quote relevant

portion  from  paragraph-20  of  Sopan  Sukhdeo  Sable case

(supra):

“20.  …  Rule  11  of  Order  7  lays  down  an independent  remedy  made  available  to  the defendant to challenge the maintainability of the suit itself,  irrespective of his right to contest the same  on  merits.  The  law  ostensibly  does  not contemplate at any stage when the objections can be raised, and also does not say in express terms about  the  filing  of  a  written  statement.  Instead, the word “shall” is used, clearly implying thereby that  it  casts  a  duty  on the  court  to  perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of  Rule  11,  even without intervention of the defendant. …”

7.  In Saleem Bhai case (supra), this Court has also held

that  …  “A  direction  to  file  the  written  statement  without

deciding the application under Order VII Rule 11 cannot but be

a procedural irregularity touching the exercise of jurisdiction of

the  trial  court.”  However,  we  may  hasten  to  add  that  the

liberty to file an application for rejection under Order VII Rule 11

2 (2003) 1 SCC 557

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of the CPC cannot be made as a ruse for retrieving the lost

opportunity to file the written statement.

8. Apparently,  in  the  present  case,  it  is  seen  that

Annexure-P/4-Affidavit dated 15.03.2015, with a prayer … “to

dismiss the present Election Petition under Order VII Rule 11 of

the CPC…”,  was filed within thirty days of the receipt of the

summons in the Election Petition. However, the court was not

inclined  to  consider  the  same  in  the  absence  of  a  formal

application,  and  thus,  Annexure-P/5-Application  No.  E.A.  No.

222 of 2016 was filed on 22.02.2016 leading to the impugned

order, posting the application for consideration at the time of

final hearing.  

9. The procedure adopted by the court is not warranted

under law. Without disposing of an application under Order VII

Rule 11 of the CPC, the court cannot proceed with the trial. In

that view of the matter, the impugned order is only to be set

aside. Ordered accordingly.

10. However, the concern expressed by the High Court with

regard to the alleged attempt on the part of the appellant for

delaying the trial  of  the Election Petition cannot  be brushed

aside.  Therefore,  we have heard  the  learned Senior  Counsel

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appearing for the appellant on the application under Order VII

Rule 11 of the CPC. We are satisfied that the said Application

does not come within the purview of any of the situations under

Order VII Rule 11 (a) to (f) of the CPC. Therefore, the application

is  rejected.  In  the peculiar  facts  of this  case which we have

narrated above,  the appellant  is  given an opportunity to  file

written statement in the Election Petition within two weeks from

today.

11. Since the Election Petition has been pending before the

High Court since 2014, we request the High Court to dispose of

the same before the end of this year.

12. The appeal is disposed of accordingly.  

........................................J.     (KURIAN JOSEPH)

......………………………………J. (ROHINTON FALI NARIMAN)

New Delhi; July 4, 2016.

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