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R.A. No. 365 of 1978, decided on 13th January, 1986.

‑‑‑0. VII, R. 11‑‑Rejection of plaint‑‑Principle of deciding preliminary issue‑‑Application under 0. VII, R. 11, C.P.C. can be disposed of / without assistance of any enquiry of evidence because question of disposal has to be determined by pure reading of plaint‑‑After reading plaint if same sufferend from disabilities provided under 0. VII, R.11, C . P . C . plaint should be rejected.

I.H. Zaidi for Petitioner.

Zaki Muhammad for Respondent.

Date of hearing: 13th January, 1986.

This is a revision against an order passed by a learned Ist Extra Joint Civil Judge, Hyderabad, dated 6‑11‑1978 dismissing the applicant's application under Order VII, Rule 11, C.P.C. for rejection of the plaint.

The brief facts of this case are that the plaintiffs in Suits Nos. 87 of 1976 and 89 of 1976 were employees of the applicant Bank. Their services were terminated by the Bank and they filed suits for declaration and injunction against the Bank for reliefs of declaration that the "dismissal from service is mala fide, illegal, without jurisdiction and contrary to the provisions of establishment bye laws and principles of natural justice and as such a nullity in law." As a consequential relief an injunction was also prayed for. The applicant /defendant in the suit filed their written statement and among the various pleas also raised a plea that no suit could be, filed under section 12 of the Specific Relief Act by an employee against the employer for the reliefs prayed for in the plaint. On pleadings of the parties five issues were framed which are as follows:‑

(1) Whether the suit is not maintainable in law

(2) Whether the suit is barred by the provisions of Specific Relief Act If so, now what provision

(3) Whether the plaintiff has no cause of action

(4) Whether the Hon'ble Court has no jurisdiction to try the matter

It appears that during the arguments a controversy arose whether the case should be looked superficially as a contract of service between the employer and employee or the question requires study in depth in order to appreciate whether the employees were governed by certain mandatory provisions of bye‑laws and if so, the violation of those bye‑laws would entitle them to a relief through the Court. Mention may be made of bye‑laws 64 and 66 in this connection. The learned Judge after hearing both the parties came to the conclusion that even for the disposal of these preliminary issues some evidence was necessary and desireable. The concluding portion of the order may be quoted here:‑

"In view of the foregoing reason, I order that the parties should lead their evidence on these issues alongwith the other issues when these issues will be decided at the time of announcement of Judgment. Order accordingly."

There seems to be some confusion on account of some observations made by the learned Judge in the order where he has observed that the disposal of an application under Order VII, Rule 11, C.P.C. should be governed by the same consideration as the disposal of preliminary issues. The portion of the order may be quoted which runs as under:‑

"The principle of deciding preliminary legal issues is same as laid down for application under Order VII, Rule 11, C.P.C. In the latter case only the contents of the plaint are to be looked into and nothing else to be considered."

As rightly contended by Mr. Zaki Mohammad, learned counsel for the respondent, there seems to be a typing error in this portion of the order. The real position being that the principle of deciding preliminary issue is not the same as laid down in the application under Order VII, Rule 11, C.P.C. The difference between the two situation is so obvious. An Application under Order VII, Rule 11, C.P.C. can be disposed of without assistance of any enquiry or evidence because the question of disposal should be determined by pure reading of the plaint. After reading the plaint, if the plaint suffers from any of the disabilities provided under this rule, the plaint should be rejected. It is not so for disposing of an issue. A legal issue may be decided after examining the pleadings of the parties and after hearing the arguments of the counsel. But it is not necessarily so, if issue is an issue of fact or an issue of mixed question of law and facts. In either of the two conditions some evidence might be necessary. This seems to be the position in the present case and the learned Judge has rightly refused to shut out that evidence and has rightly refused to reject the plaint without examining some evidence the quality and quantum of which may be more or less.

This revision is, therefore, misconceived and has been filed in haste and is dismissed with no order as to costs.

M.Y.H./5160/K Petition dismissed.

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