Or.7 rule 11 CPC – trial court dismissed the application – High court in revision filed by defendant – gave direction to amend the plaint with in stipulated time – Apex court set aside the orders of High court and directed the defendant to file his written statment and took all pleas what ever he wants in his written stament and confirm the dimissal of Or.7 rule 11 CPC petition.

NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 6411­6412 OF 2019
(Arising out of S.L.P.(C) Nos.31539­31540 of 2017)
Alpana Gupta ….Appellant(s)
Through Power of Attorney holder
VERSUS
APG Towers Pvt. Ltd. & Anr. ….Respondent(s)
WITH
CIVIL APPEAL Nos.6413­6414 OF 2019
(Arising out of S.L.P.(C) Nos.5318­5319 of 2018)
APG Tower Private Ltd. ….Appellant(s)
VERSUS
Alpana Gupta & Anr. ….Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.

  1. S.L.P.(c) Nos.31539­31540/2017 are filed
    against the final judgment and order dated
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    27.07.2017 and 23.08.2017 in CRP Nos. 157/2017
    and 99/2017 and S.L.P.(c) Nos. 5318­5319 of 2018
    are filed against the final judgment and order dated
    27.07.2017 in C.R.P. No.99/2017 and the order
    dated 23.08.2017 in CM No.30335 of 2017 in CRP
    No.99/2017 passed by the High Court of Delhi at
    New Delhi.
  2. Leave granted.
  3. These appeals involve a short point as would
    be clear from the facts mentioned hereinbelow.
  4. The appellant of CAs @ SLP Nos. 31539­
    31340/2017 is the plaintiff and the respondents are
    the defendants in Civil Suit No.1641/2016 in the
    Court of District & Sessions Judge, Rohini Courts,
    Delhi out of which these appeals arise.
  5. So far as the connected CAs @ SLP Nos. 5318­
    5319/2018 are concerned, these are filed by
    defendant No.1 of the aforementioned suit against
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    the plaintiff(appellant) and defendant No.2. In this
    way, all the appeals arise out of the same suit.
  6. The appellant in CAs @ SLP 31539­
    31540/2017 has filed the aforementioned suit
    against the respondents for declaration and
    permanent injunction and in the alternative for
    recovery of damages. The subject matter of suit is a
    land ­ details of which are described in para 1 of the
    plaint. It is not necessary to detail the averments on
    which the suit is filed.
  7. Suffice it to say, the defendants filed an
    application under Order 7 Rule 11 of the Code of
    Civil Procedure, 1908 (hereinafter referred to as “the
    Code”) and sought dismissal of the suit. This
    application was contested by the plaintiff (appellant
    in CAs @ SLP 31539­31540/2017). By order dated
    16.01.2017, the Trial Court dismissed the
    application giving rise to filing of the revisions by
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    the defendants. By impugned order, the High Court
    while disposing of the revisions passed the following
    consequential order which reads as under:
    “(i) The respondent No.1/plaintiff is at
    liberty to apply for amendment of the
    plaint on or before 11th August, 2017.
    (ii) If the said application is filed, the same
    shall be considered by the suit Court on
    its own merits and it will be open to the
    petitioners/defendants to take all the
    pleas in opposition thereto;
    (iii) However, if the application for
    amendment is not filed within the time
    aforesaid, then the right to apply for
    amendment in pursuance hereto shall
    stand closed and these petitions shall
    be deemed to have been allowed and
    the impugned order set aside and the
    plaint in the suit as existing shall stand
    rejected.”
  8. It is against this order, the plaintiff felt
    aggrieved and filed appeals (CAs @ SLP (c)
    Nos.31539­31540/2017). So far as the defendants
    are concerned, they also filed the connected appeals
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    (CAs @ SLP(c) Nos.5318­5319/2018) against the
    impugned order.
  9. Heard learned counsel for the parties.
  10. Having heard the learned counsel for the
    parties and on perusal of the record of the case, we
    are inclined to allow the appeals filed by the
    plaintiff, set aside the impugned order and dismiss
    the applications filed by the defendants under Order
    7 Rule 11 of the Code with the following
    observations.
  11. In our opinion, having regard to the nature of
    controversy and keeping in view the averments
    made in the plaint coupled with the nature of the
    objections raised by the defendants in their
    applications, the proper course for the defendants
    is to file their respective written statements, if not
    so far filed, and raise all the pleas on facts and laws
    in their written statement in support of their
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    contentions rather than to raise the pleas by taking
    recourse to the provisions of Order 7 Rule 11 of the
    Code. In other words, the pleas raised by the
    defendants in their applications under Order 7 Rule
    11 ought to be raised in the written statement.
    Such pleas, in our view, do not fall within any of the
    clauses of Order 7 Rule 11 of the Code.
  12. On such written statements being filed, the
    Trial Court will frame appropriate issues relating to
    facts and law arising out of the pleadings and try
    them as provided under Order 14 of the Code on
    their respective merits.
  13. It is with these observations and liberty
    granted to the parties, we allow CAs @ SLP(c)
    Nos.31539­31540/2017 filed by the plaintiff and set
    aside the impugned order as also the order passed
    by the Trial Court.
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  14. Needless to say, the Trial Court shall decide
    the suit strictly in accordance with law on merits
    without being influenced by any observation made
    by the Trial Court and the High Court in the present
    proceedings.
  15. In the light of the order passed above in CAs @
    SLP(c)Nos.31539­31540/2017), CAs @ SLP©
    Nos.5318­5319/2018 are disposed of.
    .……………………………………..J.
    [ABHAY MANOHAR SAPRE] ……………………………………….J.
    [R. SUBHASH REDDY]
    New Delhi;
    August 19, 2019
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