Top News Headlines 22nd Jan 2022: Plea Taken By Defendant In WS Irrelevant While Considering An Application Under Order 7, Rule 11

Plea Taken By Defendant In WS Irrelevant While Considering An Application Under Order 7, Rule 11: Madhya Pradesh HC

• In the case of Foti Rakabchand Jain through LRs vs Foti Ratanlala Jain through LRs the Madhya Pradesh HC has held that the rejection of an application under Order VII Rule 11 of CPC would be illegal if the Court sought to rely on the written statements of the defendant rather than solely relying upon the averments in the plaint.
• The case of the petitioner/defendant was that the respondent/plaintiff had filed a suit for cancellation of the sale deeds and the possession of the suit land. After service of the notice on the petitioner/defendant, they sought for a rejection of the plaint under Order VII Rule 11 of CPC on the grounds that the dispute falls under the provisions of section 170B and section 257 of the MP Land Revenue Code, which bars the jurisdiction of the civil court from adjudicating upon this matter.
• However, this application was rejected by the trial Court. Aggrieved, the petitioner/defendant filed a revision before the HC.
• The HC observed that the reason which was cited by the trial Court while dismissing the application filed by the petitioner under Order VII Rule 11 was that the same was to be adjudicated on the basis of the pleadings filed by the defendants and the other objections would have to be decided on the basis of the evidence advanced by both the parties.
• Thus, the main issue which was to be decided by the HC was whether the averments of the defendants would also need to be taken under consideration while rejecting a plaint under Order VII Rule 11.
• The HC has observed that on a perusal of the impugned section, the relevant fact which needs to be taken under consideration while deciding upon an application under Order VII Rule 11 are the averments in the plaint. The pleas taken by the defendant in his written statement would be completely irrelevant.
• The Court also observed that a direction to file a written statement without deciding upon the application under Order VII Rule 11 would be a procedural irregularity.
• In support of it’s view, the Court relied upon the decision of the Hon’ble SC in Sapan Sukhdeo Sable & ors vs. Assistant Charity Commissioner ors where the SC has held that the said section casts a duty upon the Court to reject the plaint when the same is hit by any of the provisions of clauses (a) to (d) of Rule 11, without any intervention of the defendant.
• The Court also observed that in Sajjan Sikaria & ors. vs. Shakuntala Devi Mishra and ors. the Apex Court had reiterated that while dealing with an application under Order VII Rule 11 of CPC, what has to be considered is the plaint. The consideration of the written statement is not a condition precedent.
• Thus, the revision was allowed and the trial Court was called upon to adjudicate upon the application under Order VII Rule 11.

Regular Bail Plea Treated As An Anticipatory Bail Plea; Punjab And Haryana HC Calls It A Serious Issue

• The Punjab and Haryana HC, in a case titled Sukhchain Singh @ Chaini vs. State of Punjab has held that the rejection of a regular bail plea under 439 CrPC by considering it as an anticipatory bail plea under section 439 CrPC was a cause for grave concern, and the case file was sent to the Administrative Judge of District Faridkot for necessary action.
• In the instant case, the petitioner filed an application seeking regular bail under section 439 of CrPC before the Additional Sessions Judge, Faridkot. He had been in custody since March 18, 2021 and was accused of committing an offence under section 420 and 120B of IPC. His application was rejected by the lower Court and he, therefore, appealed before the HC.
• During the course of the proceedings, the HC noted that his regular bail application was treated as an anticipatory bail application by the Additional Sessions Judge. The HC, therefore, called for the report of the District Judge in this regard.
• In his report, the District Judge stated that the case was listed for hearing before Harbans Singh Lekhi, the Additional Sessions Judge, Faridkot. It was clearly mentioned in the plea that the accused had been in judicial custody, but the Judge dismissed the same, considering it to be an application under section 438 CrPC.
• The report also mentioned that the reason that the lower Court made this grave error was due to a rush of work and he also assured that the same would not happen again.
• The HC was of the opinion that the same was a very serious issue and therefore directed that the matter be placed before the Administrative Judge of Faridkot for further action.
• The accused in this case was also granted bail by the HC noting the fact that no recovery had been effected from him, and there was no evidence to the effect that he would flee from justice or tamper with the witnesses if he was released on bail.

Article 15(5) Not An Exception But An Extension of Equality Under Article 15(1): SC Upholds OBC Reservation In NEET-AIQ Case

• In the recent landmark case of Neil Aurelio Nunes and ors. vs. Union of India and ors. the Hon’ble SC, while upholding the validity of the 27% reservation of OBC in NEET-AIQ, stated that Article 15(4) and 15(5) are not an exception but an extension of the principle of substantive equality embodied in Article 15(1) of the Constitution of India.
• Going into the background of this case, in Abhay Nath vs. University of Delhi (2009) the Apex Court had upheld the constitutional validity of the reservation of seats for the SC’s and ST’s in the All India Quota (AIQ) seats. Subsequently, the Union Parliament passed the Central Educational Institutions (Reservation In Admissions) Act, 2006 providing for reservation of SC and ST alongwith a 27% reservation for OBC.
• The constitutional validity of this Act was challenged in the case of Ashok Kumar Thakur vs. Union of India (2007) SCC. The Apex Court upheld its constitutionality. The Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutionsand of Appointments or Posts in the Services Under the State) Act, 1993 was then enacted to provide 50% reservation to OBC in State run Medical Institutions. DMK filed a writ petition to allow reservation of OBC in AIQ seats.
• Upon a direction by the HC, it was submitted that the said reservation would be implemented from the next academic year to avoid disturbance in the ongoing selection process. But this was opposed by the DMK party. They filed a contempt petition seeking the reservation to be implemented immediately. The Directorate General of Health, MoHFW, issued a notification to implement the reservation. The same was challenged before the SC.
• In its decision, the Apex Court referred to a plethora of past judgements, the first of them being Balaji vs State of Mysore (1963). In this case the SC observed that Article 15(4) serves as an exception to Article 15(1). In the case of T Devadasan vs Union of India (1964) Justice Subba Rao in his dissenting judgement wrote that 16(4) is a facet of Article 16(1).
• In the landmark case of State of Kerala vs NM Thomas (1976) the Court observed that the essence of equality enshrined in the Constitution encompasses both substantive and formal equality. Substantive equality recognises that there is equality only among equals and to treat unequals equally would perpetuate inequality. Article 15(4) and (5) are the provisions through which substantive equality could be achieved.
• In the landmark judgement of Indra Sawhney vs. Union of India, the Hon’ble SC observed that the reservation for backward classes does not create an exception to the concept of equality enshrined in our Constitution.
• Thus, upholding the reservation, the Court held that Article 15(4) and (5) are a restatement of the principle of equality as envisaged in Article 15(1) of the Constitution.