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2003 DIGILAW 1532 (PNJ)

Daljinder Singh v. Amarjit Singh Jandu

2003-11-10

V.M.JAIN

body2003
Judgment V.M.Jain, J. 1. This Revision Petition has been filed against the order dated 24.7.2001 passed by the trial court dismissing the application of defendant No. 1-petitioner, under Order 7 Rule 11 CPC for the rejection of the plaint on the ground that the suit was not maintainable being time barred. 2. The learned trial court while dismissing the application had observed that the question as to whether the plaintiff had the locus standi to file the present suit or not, whether Ranjit Kaur was a party to the decree and sale deeds or not and whether the plaintiff as a party to the decree and sale deeds or not, could be decided only after the parties led evidence. It was further observed that whatever objections the applicant/defendant No. 1 had regarding the limitation in filing the suit could be taken by him in his written statement and that at that stage the contention of neither of the parties could be thrown away out rightly. Accordingly application was dismissed with a direction that the suit shall continue and the defendants including defendant No. 1 were directed to file written statement. Aggrieved against the same defendant No. 1 filed the present Revision Petition in this court. 3. After hearing the counsel for the parties and perusing the record, in my opinion, the order dated 24.7.2001 passed by the trial court must be set aside and a direction be given to the trial court to decide the application filed by petitioner-defendant No. 1 under Order 7 Rule 11 CPC, in accordance with law, in view of the law laid down by the Honble Supreme Court in Saleem Bhai and Ors. v. State of Maharashtra and Ors., (2003)1 Supreme Court Cases 557. In the aforesaid authority, it was held by the Honble Supreme Court that the trial court can exercise the power under Order 7 Rule 11 CPC, at any stage of the suit-before registering the plaint or after issuing summons to the defendant, at any time before the conclusion of the trial. It was further held that for the purposes of deciding an application under Order 7 Rule 11 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. It was further held that for the purposes of deciding an application under Order 7 Rule 11 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. It was further held that under these circumstances a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC, would be a procedural irregularity, touching the exercise of jurisdiction by the trial court and that the order of the trial court suffers from non-exercising of the jurisdiction vested in the court as well as procedural irregularity. The case was accordingly remitted to the trial court for deciding the application under Order 7 Rule 11 CPC, on the basis of the averments in the plaint, after affording an opportunity of being heard to the parties in accordance with law. In the present case the trial court had decided the application under Order 7 Rule 11 CPC but had done so without deciding the same on merits. In fact, the application under Order 7 Rule 11 CPC was dismissed only on the ground that all these questions could not be raised by the applicant-defendant No. 1 at this stage without even filing written statement. As referred to above, in view of law laid down by the Honble Supreme Court in 2003(1) S.C.C. 557 (supra), trial court has to decide the application under Order 7 Rule 11 CPC on merits in accordance with law. 4. For the reasons recorded above, present Revision Petition is allowed, order dated 24.7.2001 passed by the trial court is set aside and the trial court is directed to decide the plication under Order 7 Rule 11 CPC, afresh in accordance with law, keeping in view the observations made above. 5. Since the proceedings before the trial court were stayed, parties through their counsel are directed to appear before the trial court on 18.12.2003 for further proceedings in accordance with law.