• Can two concurrent appeal filed in the Appellate Tribunal be dismissed under order - VII, Rule 11?

Dear Sirs,

My neighbor has made illegal constructions and we had filed a Civil Suit. The suit has resulted in the Lok Adalat Decree wherein the neighbor has agreed to demolish the illegal constructions. But they did not demolish and we have filed an Execution Petition and Contempt of Court which under trial for the past two years.

Meanwhile, my neighbor has filed an Appeal application challenging the rejection of their regularization application by the MCD (Municipal Corporation of Delhi) in the MCD Appellate Court which is also under trail for the past two years. 

Legally, the appeal is between our neighbor and the MCD but we filed an application U/o 1 Rule 10 CPC impleading ourselves as party in the MCD Appellate Tribunal. This has been done since we have filed the Civil Suit and awarded the Lok Adalat decree. The MCD Appellate court rejected our application filed under U/o 1 Rule 10, but allowed us to orally argue and also participate in the trail and also in the final arguments. Also, the Tribunal has ordered us to submit our written statement during the trail. We are attending the trail at the MCD Appellate Tribunal on every hearing and our presence is recorded. 

The fact is that our neighbor has filed two Appeal Applications in the Appellate Tribunal: 
One on 20.01.2015 and another one was on 28.08.2015. But, they have withdrawn the first appeal only on 29.09.2015. That means that when they filed the second appeal application on 28.08.15, the first appeal was also active as on 28.08.15. That is, there were two concurrent appeals filed by the neighbor in the MCD Appellate court. 

To be honest with you, the issue on concurrent appeals were pointed out in the written statement and also orally in the Tribunal. 

Now, I understand that there are judgements Under Order - VII, Rule 11 - Rejection of Plaint in Clause (e), it has been stated that "where it is not filed in duplicate" as a ground for rejection. 

So, the question:

1. Can we file an application Under Order - VII, Rule 11, Under clause (e) stated above and pray for the dismissal of their Appeal application since two appeals were there as on 28.08.15?

2. Some says that the application under Order VII Rule 11, can be filed at any point of time during the trail? Some says that this should have been filed long back. To be honest with you, our lawyer has overlooked this Section earlier. 

3. Since we are not the party in the case but allowed to participate in proceedings and orally argue and allowed to submit written statements, can we file an application for the dismissal of their appeal under this section since two appeals were active on a particular day?

4. Any citation can be provided on the above under this section especially on Clause (e) "where it is not filed in duplicate"

5. Is there anything else we can do to dismiss the appeal filed by our neighbor in the MCD Appellate Tribunal ?

Namaskar,

Tripathi
Asked 4 years ago in Civil Law

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8 Answers

1. This is mere technical irregularity and since subsequently another appeal was withdrawn so the subsisting appeal is no ground for dismissal on this reason.

2. Application for rejection of plaint is to be filed during trial not in appeal.

3.You have no legal standing to participate in the appeal since you application for addition of party. Though the tribunal has allowed you to participate the same has no legal sanctity on the context of rejection of petition under order 1 rule 10 cpc.

4. This rule does not apply in your case. it is for plaint not for memorandum of appeal.

5. You should have challenged the order of rejection of addition of party when ti was rejected.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Dear Mr. Tripathi,

YES Order VII Rule 11 can be filed at any stage however in your matter and in reference to Notes above it is not suggested to file any further application in this regard as A. It has already been highlighted in WS B. The said appeal has already been "WITHDRAWN" by the concerned, at this stage if you file any application yourself might be looked at like the one on wrong footing as THE SAID application SAID withdrawn already hence highlighting that will not be fruitful. YES had it been "DISMISSED"it would have been a different scenario.

Best of luck

Atulay Nehra
Advocate, Noida
1282 Answers
58 Consultations

5.0 on 5.0

You can file application fir rejection of plaint since 2 appeals were pending at same time

2) application can be made at any stage

3) if you are not party to the case your application woukd not be maintainable

Ajay Sethi
Advocate, Mumbai
87939 Answers
6207 Consultations

5.0 on 5.0

1. Sir order 7 rule 11 sub clause doesn't attract but it shall be filed under sub clause D as the application is barred from law that two subsequent suit on same cause cannot be filed without the liberty of court. if first was filed and withdrawn then second before same forum cannot be preferred.

2. There is SC judgement it can be filed at any stage and court has to dispose same first.

http://www.livelaw.in/application-rejection-plaint-can-filed-stage-shall-disposed-proceeding-trial-sc/

3. You cannot file the respondents has to file further the permission from the court can be obtained.

4. Clause e doesnot apply in your case.

5. Since you are not party you have to peruse the complete suit the respondent defendant can file an application for rejection on ground.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

You seem to be confusing a number of things here, which I have chalked up to the people who are advising you with all due respect to them.

Plaint and appeals are two entirely different things. Order VII, Rule 11 pertains to plaints and their rejection, and not appeals.

Secondly, Order VII, Rule 11(e) does not talk of rejection on account of a multiplicity of proceedings but the failure of a plaintiff (not appellant) to file two copies of their plaint (not appeal)—in other words, failure to file plaint in duplicate and not two plaints on the same subject-matter.

Your final question is far to open-ended and for this reason I can’t answer it as much as I want to. However, that could change if you were to furnish more details about the case.

I hope I have been able to help you. Have a nice day!

Pulkit Chandna
Advocate, New Delhi
191 Answers
5 Consultations

4.9 on 5.0

Dear Client,

2 appeals for same cause of action is not maintainable, abuse of process and concealing fact. It will be u/s 10 of CPC.

Application for rejection of plaint can be filed at any stage and it shall be disposed before proceeding with trial...

Without impleading as party, no submission will be recorded, poor order, You can act only as an amicus curiae by the order of court without imlpeading.

Rule e not applicable in present matter.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Then order and rule that you are interpreting is for the plaint if not filed with a duplicate copy is rejected and same doesnot apply to simultaneous appeal. In this principle of Resjudicata will apply.

Anand Shukla
Advocate, New Delhi
666 Answers
14 Consultations

4.9 on 5.0

1. As they have withdrawn the first appeal your application may not be maintainable and moreover since this is an appeal and not a suit, this provision of law will not be applicable, the appeal will be decided on merits.

2. Since the opposite party has withdrawn an appeal already, your application under order VII rule 11 may not be maintainable.

3. Even if you are a party to the appeal, your application may not be maintainable.

4. You may have to look for one yourself or contact your advocate for this.

5. You may look for the actual grounds or merits other than relying on a hopeless issue.

T Kalaiselvan
Advocate, Vellore
78097 Answers
1543 Consultations

5.0 on 5.0

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