Court cannot pass order under Order 7 Rule 11 without prior deciding to Section 80 of CPC.




Court cannot pass order under Order 7 Rule 11 without prior deciding to Section 80 of CPC.

SAIYAD MOHAMMAD YOUNUS RASHID AHMED

VS.

PAHTAN IBRAHIM KHAN HIMMATKHAN

Para 3: The present Civil Revision Application has been filed by the applicant – original defendant No. 4, challenging the order dated 4.6.2016 passed by the Principal Sr. Civil Judge, Idar (hereinafter referred to as “the trial court”) below Exh.47 in Regular Civil Suit No. 49 of 2014, whereby the trial court has rejected the application of the applicant, seeking rejection of the plaint filed under Order VII Rule 11 of CPC.

Para 4: It appears that the applicant – defendant No. 4 had filed the application Exh.47 seeking rejection of the plaint in the suit filed by the respondent No. 1 – original plaintiff, on the ground that the plaintiff had not given notice under Section 80 of CPC to the respondent Nos.2 to 4, who are the defendant Nos. 2 to 4 in the suit. It appears from the impugned order passed by the trial court, and not disputed by the learned Advocate Mr. Mansuri for the respondent No.1 – original plaintiff that though the plaintiff had made application under section 80 of CPC, seeking permission of the court to file suit without serving statutory notice, the said application had remained pending without any order of the court, and the trial Court had decided the application of the applicant – defendant No. 4 filed under Order VII Rule 11.

Para 5: At this juncture it is pertinent to note that the Supreme Court in case of State of Kerala and Ors. Vs. Sudhir Kumar Sharma and Ors., reported in (2013) 10 SCC 178, has specifically observed that mere filing of the application under Section 80(2) of CPC would not mean that the said application was granted by the Court and that till such application was decided, the trial Court should not have heard and decided the application under Order VII Rule 11.

Para 6: In view of the above observations of the Supreme Court, and without going into the merits of the revision application, the Court is of the opinion that the impugned order passed deserves to be set aside and is hereby set aside. The trial Court is directed to hear and decide the application of the respondent – original plaintiff under Section 80(2) of the CPC before proceeding further with the suit. After the said application is decided, the application under Section VII Order 11 shall be heard and decided afresh, if necessary to do so.

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