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2009 DIGILAW 639 (MAD)

G. Ramesh v. S. Babu

2009-02-26

G.RAJASURIA

body2009
Judgment : This civil revision petition is filed against the order dated 20.7.2007 passed in I.A.No.2021 of 2004 in O.S.No.642 of 2004 by the Additional District Munsif,Cuddalore. Inveighing the order dated 20.7.2007 passed in I.A.No.2021 of 2004 in O.S.No.642 of 2004 by the Additional District Munsif, Cuddalore., this civil revision petition is focussed. 2. The epitome and resume of the relevant facts, which are absolutely germane for the disposal of this revision petition would run thus:- The respondent herein, as plaintiff, filed the suit O.S.No.642 of 2004 before the District Munsif, Cuddalore, as against the defendants, namely, 1. The Hindu Religious and Charitable Endowments Board, rep.by its Commissioner, Chennai; 2.The Joint Commissioner, H.R. & C.E.Department, Mayiladuthurai; 3.The Assistant Commissioner, HR.& CE Department, Cuddalore, 4.The Executive Officer, Arulmighu Sri Pataleeswarar Thirukoil, Thiruppapuliyur, Cuddalore and 5.G.Ramesh, seeking the following reliefs: "(i) to pass a decree against the defendants 1 to 4 directing them to conduct the public auction in respect of leasing the suit property; (ii) to pass a decree against the defendants for costs of suit." While so, D5, who is not a Government Official or Public Official, filed the written statement. Subsequently, he filed the I.A.No.2021 of 2004 under Order 7 Rule 11 of C.P.C., After hearing both sides, the lower Court dismissed the said application. Being disconcerted and aggrieved by the said order, this civil revision petition is focussed by the 5th defendant on various grounds inter alia thus: The lower Court should have dismissed the suit on the ground that there was no cause of action for the suit and hence it ought to have rejected the plaint in view of Order VII Rule 11(d) of C.P.C. The lower Court also should have seen that the suit filed, without issuing statutory notice under Section 80 of C.P.C. is fatal to the suit for being processed before the Civil Court. 3. Despite printing the names of counsel for both sides, no one appeared. 4. 3. Despite printing the names of counsel for both sides, no one appeared. 4. A bare poring and perusal of the order of the lower Court, coupled with the typed set of papers, would display and demonstrate, evince and expatiate that the defendants 1 to 4 have not raised the plea that the suit is bad for want of notice under Section 80 of C.P.C. having been sent to them even before the filing of the suit and for that matter, even in the copy of the written statement filed by D5 which is found enclosed in the typed set of papers, there is no indication that the suit was bad for want of statutory notice under Section 80 of C.P.C. However, in the affidavit accompanying the petition, for the first time, the 5th defendant raised such a plea. 5. I am of the considered opinion that under Order 14 Rule 2(2)(b) of C.P.C. if at all there is any preliminary issue framed, touching upon the bar of suit, the question of deciding it as a preliminary issue would arise. The nature of plea taken in the I.A.is such that it is a mixed question of fact and law and there should be specific plea in the written statement of any one of the defendants. But such a plea is conspicuous of its missing. Without taking such a plea, Order 7 Rule 11(d) of C.P.C. cannot be invoked or pressed into service and if at all any glaring, ex facie and prima facie fatal defect is in the plaint, then only the said provision could be invoked. Hence, I could see no infirmity in the order passed by the lower Court. Accordingly, this civil revision petition is dismissed confirming the order dated 20.7.2007 passed in I.A.No.2021 of 2004 in O.S.No.642 of 2004 by the Additional District Munsif,Cuddalore. No costs. Consequently, connected miscellaneous petition is dismissed.