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2012 DIGILAW 819 (PAT)

Md. Aminuddin @ Aminuddin v. Sri 108 Mahavir Jee

2012-06-18

V.NATH

body2012
JUDGMENT V.Nath, J. Heard the parties. 2. This revision application has been filed against the order dated 01.12.2005 passed by Munsif II, Darbhanga in Eviction Suit No. 01/01/02/05 by which the petition filed by the defendant- petitioner under Order 7 Rule 11(a) praying for rejection of the plaint has been dismissed. 3. The plaintiff-opposite parties has filed the eviction suit praying for eviction of the defendant on the ground of default in payment of rent. In the said suit the plaintiff no. 3 has claimed himself to be the Shebait of the plaintiff nos. 1 and 2. The defendant appeared and has denied the relationship of landlord and tenant and asserted that the plaintiff no. 3 is not the Shebait as claimed and as such he has got no right to file the suit. It has also been pointed out by the defendant that the plaintiff no. 3 has filed the T.S.No. 106/99 for declaration of his status as Sebait of plaintiff nos. 1 and 2 and has asserted on that basis that until the decision of this suit, the plaintiff no. 3 cannot claim himself to be the Shebait. The defendant further claimed title over the suit property on the basis of purchase. 4. During the pendency of the suit the defendant filed a petition under Order 7 Rule 11(a) C.P.C. praying for rejection of the plaint on the grounds that till the decision of the T.S.No. 106/99, the plaintiff no.3 could not have the cause of action for filing the suit for eviction against the defendant. 5. It appears from the records and not disputed by the petitioner that the T.S.No. 106/99 stood dismissed for default on 25.01.10 due to non-filing of the appropriate stamp by the plaintiff of that suit. 6. The learned senior counsel appearing on behalf of the petitioner has submitted that in view of the filing of the Title Suit No. 106/99, the plaintiff no. 3 could not have claimed the status of Shebait of the plaintiff nos. 1 and 2 until he obtained the declaration to that effect by the competent civil court. It has been urged that the plaintiff-opposite parties has suppressed the fact of filing and pendency of T.S.No. 106/99 which was a material fact and in this view of the matter also the plaint was fit to be rejected for suppression of this fact. 7. It has been urged that the plaintiff-opposite parties has suppressed the fact of filing and pendency of T.S.No. 106/99 which was a material fact and in this view of the matter also the plaint was fit to be rejected for suppression of this fact. 7. It has also been contended that the court below has failed to appreciate the filing of the T.S.No. 106/99 and its impact on the maintainability of the eviction suit and thus has committed material irregularity in rejecting the prayer of the defendant-petitioner. 8. Per contra, the learned counsel appearing on behalf of the plaintiff-opposite parties has submitted that the filing and pendency of T.S.No. 106/99 cannot have any impact on the status of the plaintiff no. 3 as Shebait of plaintiff nos. 1 and 2 and such status was not dependent upon the declaration by a civil court. It has been urged that there has been no prayer made in the aforesaid suit for granting the said status to the plaintiff no. 3 rather it was the specific case of the plaintiff no. 3 in that suit that he was the Shebait of plaintiff nos. 1 and 2. The learned counsel has also pointed out that the C.R.No. 1609/2000 against the order by which the plaintiff no.3 in his capacity as Shebait was impleaded as a party in the suit filed by the revision- petitioner against the tenants, has been dismissed by this Court. The learned counsel has emphasized that the plaintiff-opposite parties have disclosed appropriate cause of action for filing the eviction suit and the court below has committed no illegality in rejecting the prayer of the revision-petitioner. 9. After considering the submissions of the parties and perusing the impugned order, it is manifest that the main basis of the prayer of the revision-petitioner for rejection of the plaint was on the ground of filing and pendency of the T.S.No. 106/99 by the plaintiff no. 3. As mentioned earlier the said suit now stood dismissed for default. Even otherwise also the impact of the pendency of the said suit cannot be said to be momentous enough to incur the rejection of the plaint as the plaintiff of that suit has not prayed for grant of the status of Shebait to him and it appears that the suit was only for declaration of the status of the plaintiff as Shebait. The court below has rightly come to the conclusion that the filing and pendency of the T.S.No. 106/99 would have no impact upon the maintainability of this eviction suit. The fact of filing of T.S.No. 106/99 is also not a material fact which was required to be stated by the plaintiff in the eviction suit which is to be decided on its own merits. 10. For the foregoing reasons, it is held that the impugned order does not suffer from any illegality, material irregularity or error of jurisdiction. The civil revision application is, accordingly, dismissed. However, the dismissal of this revision application shall not in any manner prejudice the case of either of the parties which shall be decided on merits in accordance with law.