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2003 DIGILAW 1117 (RAJ)

Teja Ram v. Birbal Ram

2003-08-05

N.P.GUPTA

body2003
JUDGMENT 1. - The appeal comes up for consideration of stay petition. The respondents have entered caveat, and vide order dated 1.8.2003, the appeal was admitted. However, it was contended by the learned counsel for the respondent, that since the suit has been dismissed on a preliminary point under Order 7 Rule 11, instead of considering the stay petition, it would be in the interest of justice that the impugned order is set aside, and the suit is sent back to the learned trial Court for trial on merits, and expeditious disposal. 2. In that view of the matter, I have gone through the impugned order. 3. It is informed by the learned counsel for the appellant that the suit was filed by him on 04.04.98. From the impugned order, it transpires that the application under Order 7 Rule 11 was filed on 26.4.2003, i.e. after the disposal of the plaintiff's application for grant of Temporary Injunction, and the thrust of the application was, that the person from whom the plaintiff claim to have entered into agreement to sell, himself was also having only an agreement to sell in his favour, which has already been cancelled, and therefore, the plaintiff has no locus standi. Another contention raised was that the learned trial Court while deciding application under Order 39 Rules 1 and 2, in its order dated 1.11.2002 has found that the plaintiff has no prima facie case. Likewise, another objection raised is that Mohan Lal, from whom the plaintiff ultimately claims, had already been held by the Revenue Courts in hierarchy right upto the Board of Revenue to be in illegal possession, and thus, it is contended that the plaintiffs have no cause of action, and the suit is required to be dismissed at this stage itself. Likewise, another objection raised is that Mohan Lal, from whom the plaintiff ultimately claims, had already been held by the Revenue Courts in hierarchy right upto the Board of Revenue to be in illegal possession, and thus, it is contended that the plaintiffs have no cause of action, and the suit is required to be dismissed at this stage itself. The application was opposed by the appellant, but then the learned trial Court allowed the same, inter alia on the ground that the agreement in favour of Billu Singh itself had been cancelled by Billu Singh himself, and that in various Revenue Courts, Mohan Lal's possession is held to be illegal, and that the trial Court (Additional District Judge, Raisinghnagar) in its order dated 1.11.02 has recorded various findings, while deciding the plaintiff's application are available to the learned trial Court, or to the defendant for dismissing, or seeking dismissal of the suit under Order 7 Rule 11 C.P.C., inasmuch as so far as the findings recorded in the order, while deciding the application under Order 39 Rules 1 and 2 are concerned, they are only prima facie views on an interlocutory application, and cannot even be taken into consideration while deciding the main suit on merits, much less could they be used for the purpose of invoking the provisions under Order 7 Rule 11. So far as the order two grounds are concerned, they, in substance, are the objections raised on the side of the defendant on merits of the claim of the plaintiff.5. For considering the application under Order 7 Rule 11 the averments of the plaint itself, only, have to be considered, and therefrom it is to be considered as to whether the bar of Order 7 Rule 11 is attracted or not. Whatever be the defences that may have been raised by the defendant, they remain only defences, and have to be tried out on merits during trial. In that view of the matter, the impugned order cannot be sustained at all.6. In the result, the appeal is allowed. The impugned order is set aside, and the suit is remanded back to the learned trial Court for deciding the suit on merits in accordance with law, and most expeditiously.7. In that view of the matter, the impugned order cannot be sustained at all.6. In the result, the appeal is allowed. The impugned order is set aside, and the suit is remanded back to the learned trial Court for deciding the suit on merits in accordance with law, and most expeditiously.7. Since the suit had been dismissed at preliminary stage on a preliminary point, at the request of the learned counsel for the appellant, exercising my powers under Section 62 of the Rajasthan Court Fees and Suits Valuation Act, the Court fees paid, in this appeal is directed to be refunded.Appeal allowed. *******