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2014 DIGILAW 1537 (MP)

Amit Kumar Jain @ Amitabh Jain v. Hariom Sharma

2014-11-26

ROHIT ARYA

body2014
ORDER 1. By this petition under Article 227 of the Constitution of India challenge is made to the orders passed by trial Court dated 24.3.2014 rejecting the application of petitioner/defendant filed under Order VII rule 11(d) and order dated 2.4.2014; whereby, petitioner’s application under Order XIV rule 2 CPC has been rejected. 2. Facts necessary for disposal of this petition that respondent/plaintiff has filed a suit for arrears of rent and bona fide need of the suit accommodation for non-residential purposes against the petitioner/defendants. The suit is pending consideration. Petitioner/defendant filed an application under Order VII rule 11(d) CPC on the premise that the suit is premature inasmuch as the notice for demand of rent was given on 20.6.2013; whereas, the suit has been filed on 14.8.2014 which is less than two months from the date of notice, therefore, the suit could not have been allowed to proceed and the same is barred by Order VII rule 11(d) of CPC. 3. Trial Court had dealt with this objection in impugned order dated 24.3.2014 and held that suit is filed under section 12 (1) (a) as well as (f) of M.P. Accommodation Control Act, therefore, suit as a whole cannot be said to be barred under Order VII rule 11 (d) of CPC. That apart, trial Court on such objection being raised in written statement has already framed an issue as to whether suit is premature or not ? Trial Court while addressing on the application moved under Order XIV rule 2 CPC has held that there is no need for deciding the aforesaid issue as preliminary issue as regard prematurity of the suit as issue framed in this regard require evidence to be led by both the parties and accordingly ordered for decision of all the issues altogether. With the aforesaid reasonings, trial Court dismissed these application. 4. Assailing the aforesaid order, learned counsel for the petitioner has submitted that the provisions as contained under section 12(1)(a) of Accommodation Control Act are to be interpreted strictly and therefore, trial Court could not have been proceeded with the suit and plaint ought to have been returned. 5. On the other hand, learned counsel for the respondent/plaintiff submits that since suit has been filed under section 12(1)(a) and (f) both, the suit as such cannot be said to be barred by law. 5. On the other hand, learned counsel for the respondent/plaintiff submits that since suit has been filed under section 12(1)(a) and (f) both, the suit as such cannot be said to be barred by law. On the basis of such technical objections, suit cannot bar plaintiff to prosecute the suit. In any case, the trial Court has already framed issue as to whether suit is premature or not on which evidence is required to be adduced, therefore, at this stage no question as regards prematurity of the suit can be raised. 6. As regards, the second order, the arguments advanced by learned counsel for the petitioner is that Order XIV rule 2 of CPC had an application to the facts situation in hand, therefore, trial Court ought to have first decided the issue as a preliminary issue before entering the merits of the case and since that has not been done, trial Court in fact and in effect has no jurisdiction to proceed with the suit. 7. On the other hand, learned counsel for the respondent submitted that the issue as to whether suit is barred by time or not, required to be dealt with after the parties adduce evidence in support of their pleadings and same cannot be decided without evidence only on the basis of allegations. 8. Having heard learned counsel for the parties, this Court is of the view that trial Court while rejecting both these applications viz. under Order VII rule 11(d) and Order XIV rule 2 CPC, has not committed any error of law or jurisdiction or committed any illegality, as such no interference is warranted under Article 227 of the Constitution of India. Petition sans merits is hereby dismissed. A. S. Rathore for petitioner; B. Raj Pandey for respondent.