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2014 DIGILAW 3297 (ALL)

Anshul Maheshwari @ Anshul Arya v. State of U. P.

2014-11-05

RAM SURAT RAM (MAURYA)

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JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri V. K. Maheshwari for the petitioner. 2. The writ petition has been filed against the order of Additional Commissioner dated 1.9.2014 by which the appeal filed by the contesting respondents has been allowed and the application under Order VII, Rule 11 CPC filed by the petitioner was rejected and the trial court has directed to decide the suit after framing the issue between the parties. 3. Mehar Chand filed a suit under Section 229 B for declaring him as bhumidhar of plot no. 377 area 1.930 hectare of village Samna, Jansath distt. Muzaffarnagar. It has been stated in the plaint that Anshul Arya defendant-1 executed a mortgage dated 17.1.1998 of the land in dispute and delivered possession over it as such in view of Section 164 the mortgage be treated as sale deed and name of Mehar Chand was liable to be deleted. In this suit the petitioner filed an application under Order VII, Rule 11 CPC for rejecting the plaint on 24.5.2012 on the ground that on the date of mortgage the petitioner was minor as such the alleged mortgage is null and void and the deed dated 17.1.1998 is an unregistered document and it cannot be treated as a mortgage for the purposes of Section 164 of UP Act No. 1 of 1951. Accordingly, the plaint was liable to be rejected. The trial court after hearing the parties by the order dated 30.12.2013 allowed the application of the petitioner under Order VII, Rule 11 CPC and dismissed the suit as not maintainable. The contesting respondent filed an appeal from the aforesaid order which has been allowed by the Additional Commissioner by the impugned order dated 1.9.2014. Hence this writ petition has been filed. 4. I have considered the arguments of the counsel for the petitioner and examined the record. The contesting respondent filed an appeal from the aforesaid order which has been allowed by the Additional Commissioner by the impugned order dated 1.9.2014. Hence this writ petition has been filed. 4. I have considered the arguments of the counsel for the petitioner and examined the record. Order VII, Rule 11 CPC provides that where the suit does not disclose a cause of action or where the relief claimed is undervalued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so, or where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so, or where the suit appears from the statement in the plaint to be bared by any law, or where it is not filed in duplicate or where the plaintiff fails to comply with the provisions of rule 9, the plaint can be rejected. In this case the petitioner placed reliance on Order VII, Rule 11 (d) Where the suit appears from the statement in the plaint to be bared by any law. The counsel for the petitioner submits that as Section 155 of UP Act No. 1 of 1951 imposes a restriction upon bhumidhar from mortgaging the property in dispute as such the suit shall be treated as barred under Section 155 of UP Act No. 1 of 1951, accordingly, the plaint was liable to be rejected. He further submits that on the date of alleged mortgage the petitioner was minor as such he was not having the capacity for entering into the contract and mortgaged it through unregistered document and no claim can be made on its basis accordingly, no purpose will be served in deciding the suit. 5. Section 155 of UP Act No. 1 of 1951 imposes a restriction upon the right of the bhumidhar for mortgaging it but the consequences for violating the restriction imposed under Section 155 has also provided under Section 164 of the Act and such a mortgage shall be treated as a sale. The suit was filed claiming the benefit of the statutory provision. Therefore, it is incorrect to say that the suit is barred under the law. 6. The suit was filed claiming the benefit of the statutory provision. Therefore, it is incorrect to say that the suit is barred under the law. 6. So far as the ground raised by the counsel for the petitioner that he was minor and was not competent to enter into the contract or mortgaged and no reliance can be placed on the unregistered mortgage deed are the grounds to contest the suit. Such a ground cannot be treated a ground for rejecting the plaint under Order VII, Rule 11. It has to be decided on merit after giving opportunity of evidence to the parties. 7. The impugned orders does not suffer any illegality. The writ petition has no merit it is dismissed. However, the trial court may decide the suit expeditiously without granting any unnecessary adjournment and without being influenced of the observations made by this Court in this order.