ORDER
A.M. Sapre, J.
1. This is a revision filed by the defendants under Section 115 of CPC seeking to challenge an order dated 5-4-99 passed by 10th Civil Judge, Class II, Indore in C.O.S. No. 71/97.
2. In a pending suit filed by the respondents/plaintiffs, the petitioners/defendants made an application under Order 7 Rule 11 raising certain objections therein and contending that suit be dismissed at its threshold on the basis of the objections so raised by them in the said application. It is this application which came to be rejected by the learned Trial Judge on the ground that these objections can be raised in the written statement. It is against this order the defendants have come up in revision.
3. This question has been examined by Their Lordships of Supreme Court in the case of Saleem Bhai and Ors. v. State of Maharashtra and Ors., reported in (2003) 1 SCC 557. Indeed the law remains no longer res integra and stands settled by following observations :–
The Trial Court can exercise the power under Order 7 Rule 11, CPC at any stage of the suit – before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Rule 11 (a) and (d) of Order 7, CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. Therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11, CPC can not but be procedural irregularity touching the exercise of jurisdiction by the Trial Court. The Trial Court’s order, therefore, suffers from non-exercising of the jurisdiction vested in the Court as well as procedural irregularity.
The cases are, therefore, remitted to the Trial Court for deciding the application under Order 7 Rule 11, CPC on the basis of the averments in the plaint, after affording an opportunity of being heard to the parties in accordance with law.
4. In my opinion, the view taken by the learned Trial Judge is not in accord with the law laid down by the Supreme Court. Such an order can not be sustained because it is in conflict with the view taken by the Supreme Court. This Court can not uphold such order.
5. The only thing that this Court can do is to set aside the order and direct the Trial Court to decide the application filed under Order 7 Rule 11 on its own merit and decide the issue so raised therein strictly in accordance with law without compelling the defendants to file written statement. The law laid down by the Apex Court is binding upon all the Courts in the country under Article 141 of the Constitution of India and hence need to allow the revision and set aside the impugned order.
6. The submission of the learned Counsel for respondents is that no direction can be given by this Court while hearing the revision under Section 115 because according to him revision is not maintainable in view of recent amendment. I do not agree. Once the point is settled by the law of land and if it is found that the view taken by the Trial Court is not in accordance with the law so laid down, there are no fetters on the power of the High Court in exercising the powers. Indeed non exercise of powers would amount to perpetuating the illegality committed by the Trial Court, whereas exercising the powers would follow the law laid down by the Supreme Court. The objection raised by the respondents is on technical side. The High Court being the Court of supervisory jurisdiction over the Trial Court can always pass orders to maintain the judicial discipline.
7. Accordingly and in view of the aforesaid limited discussion, revision succeeds and is allowed. Impugned order is set aside. It is directed that the Trial Court will decide the application made by the defendants under Order 7 Rule 11 in accordance with law but on its merits preferably within a period of three months from today. Registry to send record back forthwith.
C.C. within a week.