JUDGEMENT :-
A.M.KAPADIA, J.
1 Mr. Alpesh Dodiya, learned Advocate appears for respondent Nos. 2, 3 and 4 and waives service of notice of admission; whereas Mr. A.R. Majmudar, learned Advocate appears for respondent No. 5 and waives service of notice of admission. No notice for admission is required to be issued on respondent Nos. 6 and 7 since they have elected not to remain present before the Court inspite of the fact that they have been served with the notice for final disposal issued vide order dated 26/7/2010 by the Co-ordinate Bench of this Court, making it returnable on 11/8/2010.
2 Since the issue involved in this appeal runs into narrow compass i.e. interpretation of Order 7 Rule 11(a) of the Code of Civil Procedure [for short 'the Code'] and the notice has been issued for final disposal, with the consent of learned Advocates appearing for the parties, instant appeal is taken up for final hearing at admission stage.
3 Challenge in this appeal filed under section 96 of the code is to the correctness of the order/decree dated 7/5/2010 rendered in Special Civil Suit No. 175/2006 by the Ld. 8th Addl. Senior Civil Judge, Vadodara, by which the plaint in the suit filed by the appellants [for short "the plaintiffs"] has been rejected under Order 7 Rule 11(a) of the Code.
4 The suit in question has been filed by the plaintiffs for declaration, partition and permanent injunction as regards the suit land by raising specific plea in the plaint that the suit land is an ancestral property and the property is belonging to the joint Hindu family.
5 Pending the suit, on 7/8/2009 respondents Nos. 2 to 4 original defendants Nos. 2 to 4 had filed application exh. 86 for rejection of the plaint on the ground of bar of limitation. Said application was rejected by the lower Court after hearing the parties, vide order dated 7/10/2009.
6 Thereafter, again respondents Nos. 2 to 4 original defendants Nos. 2 to 4 filed another application exh. 94 on 7/11/2009 for rejection of the plaint on the ground that the plaintiffs have no cause of action to file the suit, as the plaintiffs have not produced any evidence on record showing ancestral nature of the suit property.
7 After hearing the learned Advocates for the parties, the lower Court came to the conclusion that the plaintiffs have not narrated the evidence showing that the suit land is an ancestral property and that there is no clear evidence produced on record to suggest the ancestral nature of the suit land. On the aforesaid findings, lower Court has allowed the application exh. 94 and thereby ordered rejection of plaint under the provisions of Order 7 Rule 11(a) of the Code giving rise to the instant appeal at the instance of the plaintiffs.
8 We have considered submissions advanced by Mr. Mehul Shah, learned Advocate for the appellants and Mr. Alkesh Dodiya and Mr. A.R. Majmudar, learned Advocates for the respondents. We have also perused the impugned order as well as the provisions contained under Order 7 Rule 11(a) of the Code.
9 Provision of Order 7 Rule 11(a) of the Code confers power on the lower Court to reject the plaint if it does not disclose cause of action; meaning thereby the Court has not to inquire at pre-trial stage, at pre-trial stage the Court has to look into the averments made in the plaint only and at pre-trial stage if the lower Court tried to appreciate the evidence without recording evidence, then it would cause great prejudice to the plaintiffs. In the instant case, admittedly the lower Court has passed the impugned order at pre-trial stage and merely on perusal of the averments made in the application wherein it is specifically mentioned about nature of property being ancestral property. Notwithstanding the said facts, the lower Court has rejected the plaint on the basis that the evidence is not produced. Therefore, it can be said that the lower Court has travelled beyond the scope of Inquiry in the matter of application under Order 7 Rule 11(a) of the Code. The lower Court, instead of considering whether the the plaint discloses any cause of action, has looked at the defence of the respondents and has tried to look into the documentary evidence produced on record, and then, has reached to a finding that there is no evidence showing the suit land to be an ancestral property and hence the plaintiffs have no cause of action to file the suit.
10 In our view, the aforesaid exercise made by the lower Court is clearly beyond the jurisdiction of the lower Court while deciding the application under Order 7 rule 11 of the Code. It is settled principle of law that, while deciding application under Order 7 Rule 11 (a) of the Code, the averments made in the plaint in its entirety are to be considered by taking those averments to be correct and the plaint cannot be rejected on the basis of allegations made by the defendant in his written statement or in an application for rejection of plaint. The Court has to read the entire plaint as a whole to find out whether it discloses cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order 7 rule 11 of the Code. Essentially, whether the plaint discloses a causes of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. What has to be considered is whether the plaint discloses any cause of action and not whether the plaintiff has any cause of action. [See : Mayur [H.K.] Ltd. v. Owners & Parties, Vessel M.V. Fortune Express - AIR 2006 SC 1828, Kamala v. K.T. Eshwara - 2008 [2] Scale 436, State of Orissa v. Klockner & Co. AIR 1996 SC 2140].
11 Seen in the above context, the impugned order/decree cannot be sustained and, therefore, deserves to be quashed and set aside by allowing this appeal and thereby restoring the Special Civil Suit No. 175/2006 to its original file for deciding the same after giving opportunity of adducing the evidence to both the parties.
12 For the foregoing reasons, the appeal succeeds and accordingly it is allowed. Resultantly, the order/decree dated 7/5/2010 rejecting the plaint under Order 7 Rule 11 (a) of the Code is hereby quashed and set aside and the Special Civil Suit No. 175/2006 is ordered to be restored to the original file of Court of Senior Civil Judge, Vadodara, for deciding the same on merits in accordance with law after giving ample opportunity of leading evidence to both the parties. The lower Court is also directed to decide the interim applications, if any, filed along with the suit, on merits, expeditiously.
13 Parties are directed to bear their own costs. Direct service is permitted.