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2014 DIGILAW 545 (KAR)

J. M. Urooj v. Devaraj Mohalla

2014-06-03

H.G.RAMESH

body2014
ORDER Revision is by the 3rd defendant in OS 181/2004 pending before the Prl. Civil Judge (Jr.Dvn.), Mysore on the order passed on IA 8 filed by him under O 7 R 11(a) & (d), CPC on 7.10.2013. OS 181/2004 was filed by the plaintiff/1st respondent for a declaration and permanent injunction stating that he is the successful bidder in respect of the property auctioned i.e., site bearing No.136/A situate on D Devaraj Urs Road, Mysore under notification for auction MUDA/PAN/26/200-01 dated 23.10.2000. The bid was for Rs.27,22,000/-. and he deposited Rs.5,000/-as initial deposit. It is stated, 2nd respondent without canceling the allotment in favour of this plaintifft, has once again re-auctioned the property on 19.2.2003. Petitioner herein is said to be a subsequent purchaser from the 3rd respondent i.e., in the re-auction held, the rd respondent has purchased the property and in turn, petitioner has purchased from him. The application filed by the petitioner in IA 8 under O 7 R 11 (a) & (d), CPC seeking rejection of the plaint came to be rejected. Hence, this revision. Though notice is served during March 2014, none appears for the 1st respondent / plaintiff. Heard. The grievance of the petitioner is, the auction sale was made without canceling the allotment made in favour of the plaintiff/1st respondent. Further, the petitioner sought for rejection of the the suit filed by the 1st respondent on the ground that such suit is not maintainable without there being a statutory notice as per S.64 of the Karnataka Urban Development Authority Act. It also appears 2nd respondent MUDA has also filed an application on similar grounds, for rejection of of the plaint. By the impugned order, the application filed by the petitioner herein came to be rejected. It is noticed, the dismissal of the IA is on the ground that, the suit has already been registered as such, the application for rejection of the plaint cannot be maintained. The very observation of the trial court that the suit is registered and the IA becomes infructuous appears to be incorrect. Mere registration of the suit in the Registry does not amount to admission of the very suit itself and the validity or maintainability of the suit can be considered as a preliminary issue. The very observation of the trial court that the suit is registered and the IA becomes infructuous appears to be incorrect. Mere registration of the suit in the Registry does not amount to admission of the very suit itself and the validity or maintainability of the suit can be considered as a preliminary issue. It is for the trial court to entertain the application filed by the 2nd respondent herein pending consideration and also to reconsider the IA filed for rejection of the plaint, according to law. Petition is allowed. Impugned order is set aside. Matter is remitted to the trial court for reconsideration, according to law.