[Order 7 Rule 11 CPC] The jurisdiction of the civil court is not ousted where the procedure prescribed in a particular law is not followed: the High Court of Bombay

[Order 7 Rule 11 CPC] The jurisdiction of the civil court is not ousted where the procedure prescribed in a particular law is not followed: the High Court of Bombay

The Bombay High Court has said that the court’s power to dismiss a claim under Order 7, Rule 11 of the Code of Civil Procedure (CPC) is a drastic power that must be exercised with caution.

Judge Anuja Prabhudessai dealt with an appeal challenging the trial court’s order dismissing the appellant’s claim in a property dispute. The Court set aside the order and ordered the lower court to continue with the trial.

The dismissal of the claim under Rule 11 of Ordinance VII is a drastic power given to the court to terminate the civil action at the threshold. Therefore, the prerequisites for the exercise of power are strict“, said the court.

In this case, the appellant was the plaintiff in the action. He was challenging the collector’s order in a real estate dispute involving his grandparents’ property. One of the defendants filed a motion to dismiss the complaint pursuant to CPC Order 7, Rule 11(d), asserting that the complaint is statute-barred under Section 12F of the Daman Abolition of Proprietorship of Villages Regulation, 1962 (DAVPR).

The trial court issued an order dismissing the claim, stating that the collector had failed to follow basic principles of court procedure and therefore the jurisdiction of the civil court was not excluded.

Subsequently, another defendant filed a motion to dismiss on the same ground as well as on the ground that the statute of limitations had expired. This time, the trial court granted the request and dismissed the complaint without referring to the previous order.

The appellant represented by lead counsel Ram Apte argued that the earlier order dismissing the motion to dismiss was uncontested and became final. Thus, the principle of res judicata applies. The court cannot later admit another request for dismissal of the complaint on the same grounds.

The Respondent represented by Barrister Prathamesh Bhosale and others argued that, in exercising powers under Rule 11 of Order VII, the Court must read the statements together with the documents relied upon in the Complaint in as a whole, without adding or subtracting words. It has been argued that there is gross delay on the part of the plaintiff in commencing the lawsuit and that this is prohibited by the statute of limitations.

It was further argued that the claimants challenged the orders issued by the relevant authorities under Section 12A of the DAVPR. However, civil court jurisdiction to entertain such a challenge is expressly prohibited under Section 12F of the DAVPR.

The court relied on the Supreme Court’s decision in Dhulabai v. State of Madhya Pradesh who argued that the exclusion from jurisdiction should not be inferred in cases where the statutory authority has not acted in accordance with fundamental principles of judicial procedure.

The court also relied on the judgment of the Apex Court in YBPatil c. YLPatil which ruled that the principles of res judicata can be invoked at a later stage of the same procedure.

The court noted that the lower court denied the earlier request to dismiss the complaint on the merits. The judge recorded a specific finding that the relevant authorities failed to follow basic principles of judicial procedure. These conclusions have the force of res judicata. The court concluded: “the learned judge granted the subsequent application and made a contradictory order without referring to the previous order and without taking into account the detailed reasons therein. In my opinion, this is nothing more than a pure abuse of legal process.“.

The court also observed that the collector’s order was made against a deceased person and is therefore void. It cannot take action against legal representatives who have never been summoned to appear to defend their case. The court found that the allegations in the complaint indicate that the tax collector failed to comply with legal provisions and failed to follow proper legal process. In such a case, according to Dhulabai JudgmentArticle 12F of the DAVPR would not preclude the jurisdiction of the civil court.

On the issue of limitation, the court said: “where the plaintiffs claim that they did not become aware of the material facts giving rise to the cause of action until a particular time, this must be accepted at the stage of the examination of the claim under Ordinance VII rule 11“.

Case No. – First Appeal No. 170 of 2022

Case Title – Manu Babu Patel v. Prakash Mohanlal Desai and Ors.

Thelma J. Longworth