Hetalbhai Subodhchandra Shah vs Vadlani Rekhaben Shantilal

RULE.

It prima facie appears that the trial court was not right in rejecting Order 7 Rule 11 application, more particularly, when it was brought to its notice that, in the year 2007, when the sale deed was executed, a cheque referred to therein issued by the petitioner in September 2007 was encashed by her by presenting into her account in December 2007. Thus consciously the sale consideration was accepted in relation to sale deed in the year 2007 itself and it prima facie appears to be dishonesty of the plaintiff to omit such relevant fact from the plaint and then to claim premium on that by relying upon the provisions Order 7 Rule 11 of CPC and various decisions stating that the averments in the plaint and the documents are the relevant source for adjudication under Order 7 Rule 11 of CPC. That is not the correct legal position in the opinion of this court. The correct legal position under Order 7 Rule 11 of CPC is that the plaintiff must make the necessary Page 1 of 2 Downloaded on : Mon Jan 13 21:12:26 IST 2020 C/CRA/528/2016 ORDER averments which ought to explain the cause all the relevant aspect under Order 7 Rule 11 of CPC. The plaintiff is also obliged to produce all the relevant documents bearing on the facts of the case. The plaintiff is also under an obligation to make specific foundation averments leading to the provision of law applicable to the facts of the case. In absence of such compliance, the plaintiff cannot claim to be benefited for his own wrong. That cannot be the idea behind Order 7 Rule 11 of CPC. Under the circumstances, the proceedings with the court below are required to be stayed. Accordingly the proceedings of the trial court shall remain in abeyance. Direct service is permitted.

(G.R.UDHWANI, J) syed/ Page 2 of 2 Downloaded on : Mon Jan 13 21:12:26 IST 2020