1. Can a plaint be rejected under Order VII Rule 11 of the Code of Civil Procedure 1908 (CPC), based on an application filed by the defendant? This appeal impugns the concurrent findings against the appellant, whereby the suit filed by him for injunction was rejected.”

2. The brief facts necessary for the disposal of the appeal are as follows:

                  The plaintiff claims that he purchased the plaint A schedule property by a sale deed No.3815 of 2012 on 4.12.2012. The property that lies on the northern side of the plaint A schedule property belongs to the 1st defendant. The 1st defendant is a temple which is being administered by the 2nd defendant. The defendants 3 to 6 are the office bearers of the 2nd defendant and are in administration of the 1st defendant temple. According to the plaintiff, the respondents/defendants attempted to trespass into the plaint A schedule property and, in fact, put up a shed which is described in the D schedule. It is an admitted case that prior to the filing of the suit, the predecessor of the plaintiff had instituted O.S. No.429 of 1996 before the Munsiff Court, which was dismissed, and the plaintiff challenged the same in A.S. No.110 of 2010 before the Sub Court, wherein, the Sub Court remanded the matter for fresh trial and that the plaintiff therein abandoned the suit and subsequently filed O.S. No.350 of 2012, which met with the same fate. Thus, the plaintiff contended that the factum of filing of the earlier suit having not disclosed by the predecessor of the plaintiff and therefore he is entitled to maintain the present suit with a cause of action specifically mentioned as “on and from 29.1.2015 the date on which the defendants cast a concrete platform and on 15.4.2015 when the defendants put up the plaint D schedule temporary shed in the plaint A schedule property in an attempt to trespass into the plaint A schedule property.” The defendants, on the other hand, apart from resisting the suit on various grounds, filed an application, I.A. No.365 of 2017, under Order VII Rule 11 of the Code of Civil Procedure, 1908, pointing out that the filing of the present suit is vexatious and that there is no cause of action and, further that the suit is barred under Order XXIII Rule 1(4) of the Code of Civil Procedure in as much as the predecessor of the plaintiff had filed two suits which were repeatedly abandoned and therefore there is no cause of action for the plaintiff to prosecute the present suit. Thus, the petitioners/defendants in the application prayed to reject the plaint based on the plaint averments and the judgments in O.S. No.429 of 1996 and O.S. No.350 of 2012. By order dated 19.7.2017 in I.A. No.365 of 2017 in O.S. No.660 of 2015, the Principal Munsiff Court accepted the plea of the defendants and allowed the application and consequently rejected the plaint as failing to make out a cause of action. Though the plaintiff challenged the order and the consequential dismissal of the suit in A.S. No.67 of 2017 before the Principal Sub Court, Ernakulam, the first appellate court confirmed the order passed by the court below and hence the present appeal.

3. Heard Sri. T. Krishanunni, the learned Senior Counsel, assisted by Adv. Niveditha Prem, the learned counsel appearing for the appellant and Sri.P.Sathisan, the learned counsel, assisted by Smt.Rohini S. Kumar, the learned counsel appearing for the respondents/defendants.

4. Sri. T.Krishnanunni, the learned Senior Counsel appearing on behalf of the appellant, contended that the courts below went wrong in accepting the plea of the defendants that the present suit does not disclose a cause of action. It is submitted that though the power is given to the court to reject the plaint for failing to disclose the cause of action, such power must be used sparingly and, in the peculiar nature of the present case, it is not possible for the courts to have concluded that the cause of action projected in the present suit as well as in the earlier suit were one and the same. It is further pointed out that to arrive at such a conclusion, the copies of the plaint in O.S. No.429 of 1996 and O.S. No.350 of 2012 were not placed on record. Rather, it was solely based on the judgments rendered in the said suit that the application was allowed.

5. The learned Senior Counsel relied on the decision of the Supreme Court in Kamala and Others vs. K.T. Eshwara SA and Others [2008 (12) SCC 661] to contend that the trial court instead of entertaining an application under Order VII Rule 11 of the Code of Civil Procedure, ought to have tried the maintainability of the suit as a preliminary issue under Order XIV Rule 2 of the Code of Civil Procedure. In failing to do so, it is submitted that a travesty of justice has occurred.

6. Per contra, Shri P.Sathisan, the learned counsel for the respondents/defendants supported the concurrent findings rendered by the courts below and contended that the courts below have correctly applied the law on this point and have rejected the plaint for failing to make out a cause of action against the respondents. It is pointed out that on the very same cause of action, O.S. Nos.429 of 1996 and 350 of 2012 were filed, which resulted in the abandonment of the suit by the predecessor. Therefore, the plaintiff is bound by the defects over the property in the form of abandonment of the suit and thus is bound by the proceedings initiated by his predecessor. It is also pointed out that the real issue in the present suit is for the fixation of the boundary, which was abandoned by the predecessor and therefore, the present suit cannot be allowed to be continued. In support of his contention, the learned counsel relied on the decisions rendered by the Supreme Court in Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead) by L.Rs. [MANU/SC/0367/2019]:[AIR 2019 SC 1430] ,T. Arivandandam Vs. T.V. Satyapal and Ors. [MANU/SC/0034/1977] [AIR 1977 SC 2421] and the decision rendered by the Madras High Court in B. Rajamani and Ors Vs. N. Gunasekaran and Ors. [MANU/TN/4541/2023]: [C.R.P.(PD) No.3912 of 2016, C.M.P.Nos.20105 and 20106 of 2016]

7. I have considered the rival submissions raised across the Bar, perused the judgments of the courts below and also the records of the case.

8. In the light of the conflicting claims, this Court finds that it needs to address only a solitary substantial question of law:

                  “Whether Order VII Rule 11 of the Code of Civil Procedure applies to this case or not?.

9. Order VII Rule 11(a) of the Code of Civil Procedure enables the court to reject a plaint if it does not disclose a cause of action. Whether the plaint discloses a cause of action, and if so, whether the trial court could still reject the suit under Order VII Rule 11?”

10. The answer to the above will depend upon whether a defendant can raise the plea under Order VII Rule 11 of the Code of Civil Procedure. Before considering that, it is felt expedient to refer to certain portions of the plaint averments. Paragraph Nos.9, 10 and 12 of the plaint are extracted herein as under:

                  “9. The defendants have threatened the plaintiff that they would take forcible possession of A scheduled property at any cost. There is every chance of the defendants again attempting to trespass into the property and to annex the same to the property of the defendants. If they happen to succeed in their attempt, the plaintiff will be put to irreparable injury and substantial loss. Unless the defendants are restrained by a decree of prohibitory injunction restraining the defendants their men and agents from trespassing into the plaint A schedule property of the plaintiff or in any way meddling with the possession and enjoyment of the same by the plaintiff, the plaintiff will be put to irreparable injury and substantial loss.

                  10. The defendants who have trespassed into a portion of the plaint A schedule property and constructed a platform and put up a portable temporary shed, are bound to remove the same. As they did not remove the encroachments despite the demands of the plaintiff, they are liable to be directed by a decree of mandatory injunction to remove the unauthorized constructions stealthily made in the plaint A schedule property.

                  11. xxxx

                  12. The cause of action for the suit arose within the jurisdiction of this Hon. Court in Maradu Village, on and from 29/01/20015 the date on which the defendants cast a concrete platform and on 15/04/2015 when the defendants put up the plaint D schedule temporary shed in the plaint A schedule property in an attempt to trespass into the plaint A schedule property.”

11. A cursory reading of the averments in the plaint would no doubt disclose that a valid cause of action is projected by the plaintiff stands established in the nature of dates given and also with the specific assertion that an attempt to trespass into the plaint schedule property was made by the defendants on the dates mentioned therein.

12. In Kuldeep Singh Pathania v. Bikram Singh Jaryal [(2017) 5 SCC 345], the Supreme Court held that power under Order VII Rule 11 of the Code of Civil Procedure cannot be invoked by the trial court on an application by the defendant or based on the written statement.

13. That be so, there should be no difficulty for this Court to conclude that the order of the trial court is clearly without jurisdiction. Moreover, assuming for argument sake that the court could still look into the issue a little deep in order to find out whether the suit is maintainable or not, there was no material before the trial court to conclude that the cause of action in the present suit is one and the same that was projected in the earlier suits because the copy of the plaint in the earlier suit was not on record.

14. Even if it was made available, it would not have been possible for the court to conclude that the present suit did not disclose a cause of action, especially since a specific averment as regards the attempt made by the defendants to trespass into the plaint schedule property was clearly mentioned. Whether the said trespass is a new one or related to the earlier one will ultimately depend on the quality of evidence adduced by the plaintiff. Suffice to say that it was not possible for the courts to have concluded that the present suit does not disclose any valid cause of action.

15. The learned counsel for the respondents, however, pointed out that the essence of the plaintiff’s grievance regarding the fixation of the boundary had already been abandoned by the predecessor of the plaintiff when O.S. No. 350 of 2012 was not prosecuted further. Again, this is a matter which the trial court ought to have looked into at a later stage and not at the preliminary stage by merely perusing the judgment rendered in O.S. No.350 of 2012.

16. In Kamala and Others vs. K.T. Eshwara Sa and Others [2008 (12) SCC 661], the Supreme Court considered the essential difference between the invocation of the power under Order VII Rule 11 (d) and the principles underlying the trial of the suit on the preliminary issue under Order 14 Rule 2 and held that, in a preliminary issue to be decided under Order 14 Rule 2, the plaintiff is given an opportunity to adduce evidence to show that the suit cannot be rejected on the preliminary issue whereas, in an application under Order 7 Rule 11(d), such an exercise is not permitted.

17. Though, it is pointed out that an absence of jurisdiction can be a subject matter of consideration of an application under Order VII Rule 11 of the Code of Civil Procedure, in the peculiar nature of the relief sought for and also in the nature of the cause of action pleaded, it cannot be said that there is a similarity between O.S. No.350 of 2012 and the present suit.

18. In T. Arivandandam Vs. T.V. Satyapal and Ors. [AIR 1977 SC 2421] : [MANU/SC/0034/1977], the Supreme Court held that the trial court is empowered to look into the question as to whether the suit is ex facie maintainable for the reason that there cannot be any similarity in the cause of action in the two suits. Paragraph No.5 of the aforesaid judgment is extensively relied on, which is extracted as follows:

                  “ 5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints.”

19. In Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead) by L.Rs. [AIR 2019 SC 1430]:[MANU/SC/0367/1977], the Supreme Court followed the decision in T. Arivandandam (Supra) and held that if a suit is ex facie not maintainable, the power under Order VII Rule 11 of the Code of Civil Procedure would be invoked.

20. The above decisions may not help the respondents/defendants for obvious reasons. The above decisions dealt with different factual aspects altogether. In T. Arivandandam (Supra), the successive suits were filed by the same plaintiff. In Raghwendra Sharan Singh (Supra), the suit was found to be ex facie barred by limitation.

21. However, in the present case, O.S. No.350 of 2012 was lodged on an allegation that the respondents herein attempted to trespass into the plaint A schedule property. It is also indisputable that the identity of plaint A schedule property is one and the same in the present suit as well as in the earlier suit. But then, it will be wholly impermissible for this Court to hold that merely because an attempt to make trespass was the subject matter of cause of action in O.S. No.350 of 2012 at the instance of the predecessor of the plaintiff, the plaintiff will be precluded from lodging any separate suit for asserting civil rights if it is found that there is further trespass and that the defendants are carrying out certain constructions to the detriment of the plaintiff. At this stage, with the above available pleadings, it is not possible to conclude that there is identity of cause of action.

22. Coming to the plea that the suit is hit by Order XXIII Rule (1) of the Code of Civil Procedure, this Court is of the considered view that in the absence of any materials to conclude that that the relief suit for in O.S. No. 350 of 2012 and the present suit is one and the same, it is not possible to accept the said plea. At any rate, it cannot be said that the said question could have formed the basis for the court’s conclusion to reject the plaint under Order VII Rule 11 of the CPC.

23. On an overall consideration of the facts and circumstances pleaded, this Court is inclined to answer the substantial question of law in favour of the appellant, and by holding that in the present case, the application under Order VII Rule 11 of the Code of Civil Procedure does not arise.

24. Resultantly, the order dated 19.7.2007 in I.A. No.365 of 2017 and the judgment and decree dated 19.7.2017 in O.S. No.660 of 2015, as confirmed in A.S. No.67 of 2007 by the Principal Sub Court, Ernakulam, are set aside. O.S. No.660 of 2015 shall stand restored to the files of the Principal Munsiff Court, Ernakulam. The parties shall appear before the Principal Munsiff Court, Ernakulam, on 5.2.2026. The parties shall be permitted to adduce further evidence, and the trial court shall proceed with the suit in accordance with law. The right of the defendants to raise the question of maintainability of the suit as a preliminary issue is left open to be raised at the appropriate stage.