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2015 DIGILAW 3059 (ALL)

Shambhoo Nath v. Addl. District Judge (FTC)

2015-09-24

MANOJ KUMAR GUPTA

body2015
JUDGMENT Manoj Kumar Gupta, J. – Aggrieved by order dated 27.7.2015, passed by the Judge Small Cause Court in SCC suit no. 01 of 2010, the petitioner has filed the instant petition. 2. It transpires from the record that the suit referred to above has been filed by the second and the third respondents for recovery of arrears of rent and for ejectment. In the suit, the petitioner took a plea that there had been an agreement for sale with regard to the same premises in his favour and on the basis whereof, the suit instituted by him for specific performance was decreed in part for refund of earnest money. The appeal against the judgement of the trial court in so far as it refuses decree of specific performance, is pending. Consequently, the petitioner cannot be said to be a tenant of the demised premises. It is further contended that in a previous suit being Original Suit No. 687 of 1983, instituted by the respondent no.2 and 4, status of the petitioner has been described as that of a tress-passer. The suit aforesaid is still pending. In such view of the matter, the subsequent suit before the Judge Small Cause Court claiming the petitioner to be a tenant was not maintainable. 3. The petitioner filed application for dismissing the suit as not maintainable and for staying the proceedings thereof, during the pendency of the appeal filed by the petitioner against the judgement in the suit for specific performance. The application aforesaid was rejected by the trial court by order dated 16.8.2014. Aggrieved by the said order, the petitioner preferred Writ-A no. 52618 of 2014, which was disposed of by this Court granting liberty to the petitioner to get the issue formulated in this regard by the trial court. 4. It seems that thereafter the petitioner filed an application 53 Ga for framing additional issue relating to maintainability of the suit. The application discloses that it was filed invoking the provisions of Order 7, Rule 11 CPC. 5. By impugned order dated 27.7.2015, the trial court rejected the application holding that the claim does not appear to be barred by any provision of law. 6. The application discloses that it was filed invoking the provisions of Order 7, Rule 11 CPC. 5. By impugned order dated 27.7.2015, the trial court rejected the application holding that the claim does not appear to be barred by any provision of law. 6. Learned counsel for the petitioner submitted that the prayer made in the application was for framing additional issue relating to jurisdiction of the trial court, though it was wrongly labelled to be an application under Order 7, Rule 11 CPC. In his submission, mere labelling of the application under a wrong provisions of law will not divest the court of its power to pass appropriate order in respect of the prayer made in the application. 7. The argument appears to have some substance. However, since the application was filed by labelling it under Order 7, Rule 11 CPC, therefore the trial court dismissed it treating it to be an application under the said provision. In such view of the matter, no fault can be attributed to the decision taken by the trial court. At the same time, since the petitioner intended to move the application in question for framing of issue relating to jurisdiction and for its disposal by the trial court, for which he was also granted liberty by order dated 26.9.2014 by this Court, the Court is of the opinion that interest of justice would be served in permitting the petitioner to file a fresh application under appropriate provision of law for framing an issue relating to jurisdiction of the trial court. In case any such application is filed by the petitioner, the trial court shall decide the same without being influenced by the findings recorded by it in the impugned order dated 27.7.2015. 8. The petition stands disposed of accordingly. Petition disposed of.