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Allahabad High Court · body

2011 DIGILAW 1180 (ALL)

Rajeev Mishra v. Sanjay Srivastava and others

2011-05-06

A.P.SAHI

body2011
Amreshwar Pratap Sahi, J.;- Heard Sri Shailendra, learned counsel for the petitioner and Sri Ramendra Asthana, learned counsel for the respondent no. 1. 2. The respondent nos. 2 and 3 are proforma parties and the petitioner in essence claims himself to be a transferee of the property from them. Hence it is not necessary to issue notice to the said respondents. 3. The contention is that the petitioner is the defendant in the suit and a preliminary objection was raised through an application under Order VII Rule 11 of the Code of Civil Procedure that the suit itself was not maintainable and the plaint itself deserves to be rejected outright under Order II Rule 2 of the Code of Civil Procedure read with the provisions of Section 70 and Section 111 of the U.P. Cooperative Societies Act, 1965. It is further submitted that these facts with regard to the filing of earlier suits have been deliberately concealed in the plaint of the suit giving rise to the present proceedings, therefore the said fact should have been taken into consideration for drawing an adverse inference against the respondent no. 1 but the courts below have given an opinion otherwise. 4. Sri Shailendra, learned counsel for the petitioner submits that the approach of the courts below is erroneous in law, inasmuch as, this preliminary issue of the maintainability of the suit had to be decided keeping in view the nature of the allegations made in the plaint coupled with such facts which had not been stated in the plaint but have been brought on record in the written statement. 5. Sri Ramendra Asthana, learned counsel for the respondent no. 1 contends that the impugned orders do not finally reject the application under Order VII Rule 11 of the CPC and, therefore, the issue is still open to contest after evidence is led. 6. In the opinion of the Court, the trial court ought to have proceeded to thoroughly examine the issue relating to the maintainability of the suit itself before having proceeded to entertain the suit or pass an order on the application under Order VII Rule 11 awaiting filing of evidence. 6. In the opinion of the Court, the trial court ought to have proceeded to thoroughly examine the issue relating to the maintainability of the suit itself before having proceeded to entertain the suit or pass an order on the application under Order VII Rule 11 awaiting filing of evidence. This approach of the trial court is erroneous, inasmuch as, even if any evidence is required the same ought to have been entertained and then the application under Order VII Rule 11 should have been disposed of finally without passing an order of the nature which is impugned herein. The revising authority has also committed the same error. 7. Learned counsel for the respondent no. 1 submits that he does not propose to file any counter affidavit at this stage. 8. Having heard learned counsel for the parties and in view of the peculiar facts of this case and for the reasons aforesaid, the impugned orders dated 25.2.2011 and 18.3.2011 are set aside. 9. The trial court is directed to proceed to decide the application under Order VII Rule 11 of the CPC without any further delay in accordance with law within a period of three months from the date of presentation of a certified copy of this order before him as a preliminary issue proceeding with the trial itself. 10. The writ petition is allowed.