Case Note & Summary
The case involves a long-standing partition dispute between the parties. The great-grandmother of Applicant Nos.1 and 2 originally filed Special Civil Suit No.76 of 1996 for partition and separate possession against Respondent No.1 and his wife. The suit was dismissed in 1999, but on appeal, the High Court remanded the matter in 2011. After remand, the suit was renumbered as RCS No.65 of 2012, and a preliminary decree for partition was passed. The preliminary decree was challenged by the respondents up to the Supreme Court, but all challenges failed, and the decree attained finality. Subsequently, the applicants filed a Final Decree Application No.1 of 2012. During the pendency of that application, the respondents filed an application under Order VII Rule 11 CPC seeking rejection of the plaint in the original suit. The Trial Court rejected that application on 22 December 2017, holding that after the preliminary decree, the plaint cannot be rejected under Order VII Rule 11. The applicants then filed the present Civil Revision Application challenging that order. The High Court examined the maintainability of the application under Order VII Rule 11 after a preliminary decree. It held that once a preliminary decree is passed, the plaint merges into the decree, and the suit is no longer pending for the purpose of Order VII Rule 11. The court also noted that the revision petition itself was not maintainable as the order was interlocutory and an alternative remedy of appeal after final decree was available. The revision was dismissed, upholding the Trial Court's order.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11 CPC - Maintainability After Preliminary Decree - Application under Order VII Rule 11 CPC for rejection of plaint is not maintainable after a preliminary decree has been passed in a suit, as the plaint merges into the decree and the suit is no longer pending for the purpose of Order VII Rule 11 - Held that the Trial Court correctly rejected the application as not maintainable (Paras 5-6).
B) Civil Procedure - Revision - Interlocutory Order - Alternative Remedy - Revision under Section 115 CPC against an order rejecting an application under Order VII Rule 11 CPC is not maintainable if the order is interlocutory and does not finally dispose of the suit, and if an alternative remedy of appeal exists after final decree - Held that the revision petition is dismissed on this ground as well (Paras 7-8).
Issue of Consideration
Whether an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 for rejection of plaint is maintainable after a preliminary decree has been passed in a partition suit.
Final Decision
The Civil Revision Application is dismissed. The order dated 22 December 2017 passed by the Joint Civil Judge, Junior Division, Daund, rejecting the application under Order VII Rule 11 CPC, is upheld.
Law Points
- Order VII Rule 11 CPC application not maintainable after preliminary decree
- revision against interlocutory order not maintainable if alternative remedy available
- partition suit preliminary decree attains finality after dismissal of SLP
Case Details
Civil Revision Application No.87 of 2019
Mr. R.N. Sanghavi for the Applicants, Mr. S.M. Gorwadkar, Senior Advocate i/b. Mr. S.H. Gangal for the Respondents
Dhananjay Shivram Mapare and Ors.
Vilas Eknath Kapre and Ors.
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Nature of Litigation
Civil revision against order rejecting application under Order VII Rule 11 CPC for rejection of plaint in a partition suit.
Remedy Sought
Applicants/Defendants sought setting aside of the Trial Court's order dated 22 December 2017 rejecting their application under Order VII Rule 11 CPC for rejection of plaint.
Filing Reason
Applicants filed application under Order VII Rule 11 CPC seeking rejection of plaint in the original partition suit after a preliminary decree had been passed.
Previous Decisions
Special Civil Suit No.76 of 1996 (later RCS 65 of 2012) resulted in a preliminary decree for partition on 30 October 1999, which was upheld up to the Supreme Court. Final Decree Application No.1 of 2012 is pending.
Issues
Whether an application under Order VII Rule 11 CPC for rejection of plaint is maintainable after a preliminary decree has been passed in a suit.
Whether the Civil Revision Application under Section 115 CPC is maintainable against an interlocutory order rejecting an application under Order VII Rule 11 CPC.
Submissions/Arguments
Applicants argued that the plaint did not disclose a cause of action and was barred by limitation, and therefore should be rejected under Order VII Rule 11 CPC.
Respondents contended that after the preliminary decree, the plaint merges into the decree and the application under Order VII Rule 11 is not maintainable.
Ratio Decidendi
An application under Order VII Rule 11 CPC for rejection of plaint is not maintainable after a preliminary decree has been passed in a suit, as the plaint merges into the decree and the suit is no longer pending for the purpose of Order VII Rule 11. Additionally, a revision under Section 115 CPC against an interlocutory order rejecting such an application is not maintainable if an alternative remedy of appeal after final decree is available.
Judgment Excerpts
Revisionary jurisdiction of this Court is invoked for setting up a challenge to the order dated 22 December 2017 passed by the Joint Civil Judge, Junior Division, Daund, rejecting the application preferred by the Applicants/Defendants seeking rejection of Plaint under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 (the Code).
The Trial Court has rejected the application under Order VII Rule 11 of the Code on the ground that after the preliminary decree, the plaint cannot be rejected under Order VII Rule 11 of the Code.
Procedural History
Special Civil Suit No.76 of 1996 filed for partition and separate possession, dismissed on 30 October 1999. First Appeal No.192 of 2001 allowed and remanded on 3 February 2011. After remand, suit renumbered as RCS No.65 of 2012, preliminary decree passed. Preliminary decree challenged up to Supreme Court, SLP dismissed on 8 April 2016. Final Decree Application No.1 of 2012 filed. Respondents filed application at Exhibit-72 seeking alteration in shares, dismissed on 28 September 2016, appeal dismissed on 24 March 2017, remanded and again dismissed on 17 November 2017. Second Appeal No.674 of 2018 pending. Applicants filed application under Order VII Rule 11 CPC on 22 December 2017, rejected by Trial Court. Present Civil Revision Application filed against that order.
Acts & Sections
- Code of Civil Procedure, 1908: Order VII Rule 11, Section 115
