2017 (2) TMI 1338 - HC - Indian Laws

Decree for specific performance of contract - Case of petitioner is that the application (Exhibit No.22) filed by him under Order VI Rule 17 of the Code of Civil Procedure be decided before the application (Exhibit No.18) filed by the defendant is considered - Held that - the learned trial Judge has committed an error in rejecting the application (Exhibit No.27) and refusing to consider the application (Exhibit No.22) before considering the application (Exhibit No.18) - the provisions of Order VII Rule 13 of the Code of Civil Procedure lay down that if the plaint is rejected under Order VII Rule 11 of the Code of Civil Procedure, then the plaintiff is not precluded from presenting a fresh plaint in respect of the same cause of action. The learned trial Judge has not only committed patent illegality but has failed to exercise the jurisdiction vested in him by refusing to consider the application (Exhibit No.22) before considering the application (Exhibit No.18) - application allowed.

Summary

Issues:
1. Rejection of application by trial court.
2. Application under Order VI Rule 17 to amend plaint.
3. Application under Order VII Rule 11 for rejection of plaint.
4. Duty of court to decide applications in sequence.
5. Interpretation of Order VII Rule 13.
6. Error in rejecting application under Order VI Rule 17.
7. Legal principles regarding the sequence of deciding applications.
8. Setting aside the impugned order and granting relief to the petitioner.

Analysis:
The petitioner challenged the trial court's rejection of his application (Exhibit No.27) seeking permission to amend the plaint for specific performance of contract. The defendant had filed an application (Exhibit No.18) under Order VII Rule 11(a) for rejecting the plaint. The petitioner also filed an application (Exhibit No.22) under Order VI Rule 17 to amend the plaint, which was not being considered. The trial court rejected the petitioner's application (Exhibit No.27) before deciding on the defendant's application (Exhibit No.18).

The respondent argued that once an application under Order VII Rule 11 is filed, the court must decide that application first before proceeding further. However, the court found that the trial judge erred in rejecting the petitioner's application (Exhibit No.27) and not considering the application (Exhibit No.22) before the defendant's application (Exhibit No.18). The court highlighted that if the defendant's application is decided first and the plaint is rejected, the petitioner can file a fresh plaint with the proposed amendment.

The court distinguished a previous judgment cited by the respondent, emphasizing that considering an application under Order VI Rule 17 does not mean proceeding with the trial. The court concluded that the trial judge's refusal to consider the petitioner's application before the defendant's was a patent illegality. Consequently, the impugned order was set aside, and the petitioner's application was allowed. The trial judge was directed to consider the petitioner's application under Order VI Rule 17 before the defendant's application under Order VII Rule 11(a).

In the final order, the court set aside the impugned order, allowed the petitioner's application, and instructed the trial judge to consider the petitioner's application under Order VI Rule 17 before the respondent's application under Order VII Rule 11(a). The parties were to bear their own costs.