Bela M. Trivedi, J. - (1.) THE present appeal filed by the appellant/plaintiff Dr. Abdul Wasi under Section 96 of CPC, arises out of the judgment and decree dated 3/8/2011 passed by the Additional District Judge No. 9, Jaipur Metropolitan (hereinafter referred to as 'the Trial Court') in Civil Suit No. 02/11(589/11), whereby the Trial Court has allowed the application filed by the respondent No. 21/defendant No. 21 under Order VII, Rule 11 of CPC read with Section 151 of CPC by rejecting the plaint, and dismissing the suit of the appellant/plaintiff.
(2.) THE short facts, giving rise to the present appeal, are that the appellant/plaintiff is the son of the respondent No. 5/defendant No. 5, Shri Abdul Sami. According to the appellant/plaintiff, the common ancestor late Shri Abdul Samad, of the appellant/plaintiff, and of the respondent/defendant Nos. 1 to 20 and 22 to 30, was the owner of the suit property situated at Tilak Nagar, Jaipur, as described in para 2 of the plaint. The said Abdul Samad expired in 1983 leaving behind the defendant Nos. 1 to 5 who were his sons and the defendant Nos. 6 to 8 who were his daughters. The appellant/plaintiff therefore filed the suit being No. 2/2011 (589 of 2011) before the Trial Court, seeking partition and for recovery of possession of his 3/14th share in the suit property, and for permanent injunction for restraining the respondents No. 9 to 21/defendant Nos. 9 to 21 from transferring or alienating or creating any charge or put up any construction over the suit property. In the said suit, it was alleged inter alia that though the defendant Nos. 1 to 4 had only 1/7th share in the suit property, they wrongly mentioning their 1/5th share, sold out their respective shares to the defendant No. 21 by executing separate sale deeds, which were illegal and void ab -initio. It was further alleged that the defendant Nos. 6 to 8 had relinquished their respective 3/14th undivided share in the suit property in favour of the plaintiff by executing a deed on 28/3/2011, and thus the plaintiff was entitled to get his 3/14th share in the suit property. It was further stated in the plaint that on 5/4/2011 when the plaintiff asked for partition of the suit property by meets and bounds, the respondents/defendants refused to do so, and hence the suit was filed. The respondent No. 21/defendant No. 21, on service of summons, had filed an application under Order VII, Rule 11 read with Section 151 of CPC, seeking rejection of the plaint, contending inter alia that the plaintiff had earlier filed the suit being No. 548/11 on 11/4/2011, making the same averments as made in the present suit and that the said suit was dismissed for non compliance of the Court's order to pay Court fees and for default on 21st April, 2011, and hence the appellant/plaintiff could not have filed the second suit. It was also contended that no cause of action had arisen for the plaintiff to file the suit against the defendants. It was also further contended that the plaintiff had also filed one another suit bearing No. 131 of 2007, claiming partition of the suit property and seeking his share on the basis of alleged Hibanama in favour of his mother, which was dismissed by the Trial Court on 30th August, 2008, and that one more suit was filed by the respondent No. 5/defendant No. 5, i.e., father of the plaintiff bearing No. 105 of 2008 against the defendant Nos. 1 to 4, in which he had not shown share of the defendant Nos. 6 to 8 in the suit property. It was also contended that the plaintiff had suppressed material facts from the Court by not disclosing the filing of the said suits and hence the plaint was liable to be rejected. The said application under Order VII, Rule 11 of CPC was resisted by the appellant/plaintiff by filing the reply. The Trial Court, after hearing the learned counsels for the parties, allowed the said application, rejecting the plaint of the appellant/plaintiff vide impugned order dated 3/8/2011. Being aggrieved by the same, the present appeal has been filed. It has been sought to be submitted by the learned Senior Counsel Mr. R.K. Mathur for the appellant that the impugned order passed by the Trial Court is ex -facie illegal, as none of the ingredients of Order VII, Rule 11 of CPC have been complied with. While conceding that the appellant/plaintiff had not disclosed the fact of institution of the suit being No. 548 of 2011, in the present suit, he submitted that the present suit could not have been rejected merely on non -disclosure of such fact. According to him, the Trial Court has wrongly relied upon the provisions contained under Order IX, Rule 9 and Order II, Rule 2 of CPC for rejecting the plaint. Placing reliance on the decisions of the Apex Court and of this Court in case of Union of India vs. Suresh J. Thanawala & Ors, : JT 2001 (7) SC 668 and in case of Dev Bai (Smt.) vs. Additional Civil Judge No. 1, Kota & Ors., : 2012 (1) WLN 623 (Raj.), Mr. Mathur submitted that the plaint could be rejected under Order VII, Rule 11(d) considering the averments made in the plaint only, and in the instant case, no such averments having been made by the plaintiff in the plaint, the provisions contained in Order VII, Rule 11(d) could not be resorted to. He also submitted that the appellant/plaintiff has clearly disclosed the cause of action in the plaint itself, and therefore the provisions contained in Clause (a) of VII, Rule 11 also would not be attracted. However, the learned Senior Counsel Mr. R.K. Agarwal with Mr. Suresh Sahni appearing for the respondents vehemently submitted that the present suit was filed by the appellant/plaintiff suppressing the material facts from the Court, and misusing the process of law. According to them, the earlier suit being No. 548/2011 filed with the same averments as made in the present suit was dismissed by the Court on 21st April, 2011 for not complying with the order made for the payment of proper court fees and for not remaining present in the Court, however the said fact was suppressed by the appellant in the present suit. They submitted that the present suit was filed making verbatim the same averments in the plaint, as made in the earlier suit, however the prayer for setting aside of the sale deed executed in favour of the defendant No. 21, which was prayed for in the earlier suit was deleted in this suit, only with a view to avoid payment of Court fees. Mr. Agarwal also drew the attention of the Court about the other suits filed by the appellant/plaintiff in respect of the same property and submitted that no cause of action had arisen against the respondents to file the present suit. The learned counsels for the respondents have relied upon various judgments of Hon'ble Supreme Court to submit that the plaintiff must aver clearly the facts necessary to enable him to obtain the decree and that while scrutinizing the averments of the plaint, it is the bounden duty of the Court to ascertain the materials for cause of action. They also submitted that if the suit is filed by the plaintiff abusing the process of Court, the Court should not feel helpless and should dismiss the suit invoking the powers under Section 151 of CPC, if the plaint could not be rejected under Order VII, Rule 11 of CPC.
(3.) SO far as the legal position with regard to Order VII, Rule 11 of CPC is concerned, it may be stated that the Apex Court in the latest decision in case of Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust,, (2012) 8 SCC 706 has reiterated inter alia that where the plaint does not disclose a cause of action, where the relief claimed is undervalued and not corrected within the time allowed by the Court, where the plaint is insufficiently stamped and not rectified within the time fixed by the Court, where the plaint is barred by any law, where the plaintiff failed to enclose the required copies or to comply with the provisions of Rule 9, the Court has no other option except to reject the plaint.;