Case Note & Summary
The appellants, Smt. Vijaya Wd/o Vijay Vitthalani and her minor children, filed a suit for specific performance of contract and injunction against the respondent, Jagdish Kanjubhai Vitthalani, in the Court of Civil Judge (Senior Division), Gadchiroli, being Special Civil Suit No.34/2003. The suit was based on an alleged agreement to sell a property bearing Kh. No.6 at village Allapali. The respondent filed a counterclaim for mandatory injunction to remove a shed allegedly raised by the appellants and for perpetual injunction restraining them from disturbing his possession. The trial court rejected the plaint on 9/2/2005 under Order VII Rule 11 CPC on the ground that it did not disclose a cause of action or was barred by law. Consequently, the suit did not survive, and the counterclaim was taken up for consideration. The respondent claimed that the land was granted to him by the Government on 16th June 1989 and he was in possession since then. The trial court decreed the counterclaim ex parte as the appellants failed to appear and contest it. The appellants appealed to the District Judge, Gadchiroli in Regular Civil Appeal No.50/2009, which was dismissed on 30/6/2009. The appellants then filed the present second appeal under Section 100 CPC. The High Court held that the rejection of plaint under Order VII Rule 11 CPC does not require notice to the plaintiff, as the court can reject the plaint on its own motion. The court also held that the counterclaim could be decreed ex parte if the plaintiff fails to appear. The High Court found no substantial question of law involved and dismissed the second appeal, upholding the concurrent findings of the courts below.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11 CPC - Notice - Rejection of plaint under Order VII Rule 11 CPC does not require notice to the plaintiff as the court can reject the plaint on its own motion if it does not disclose a cause of action or is barred by law. The trial court's rejection of the plaint was upheld. (Paras 5-6) B) Civil Procedure - Counterclaim - Ex Parte Decree - Order VIII Rule 6A CPC - If the plaintiff fails to appear and contest the counterclaim, the court can proceed to decide the counterclaim ex parte and pass a decree. The trial court's decree on the counterclaim was upheld. (Paras 7-8) C) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The High Court in second appeal can only interfere if there is a substantial question of law. No such question arose as the findings of fact were concurrent and not perverse. (Paras 9-10)
Issue of Consideration
Whether the trial court was justified in rejecting the plaint without issuing notice to the appellants? Whether the counterclaim could be decreed ex parte? Whether the lower appellate court erred in dismissing the appeal?
Final Decision
The High Court dismissed the second appeal, upholding the judgment and decree of the lower appellate court and the trial court.
Law Points
- Rejection of plaint under Order VII Rule 11 CPC does not require notice to plaintiff
- Counterclaim can be decreed ex parte if plaintiff fails to appear
- Second appeal limited to substantial questions of law under Section 100 CPC
