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2016 DIGILAW 1110 (ALL)

Satish Kumar v. Saleem Beg @ Babboo

2016-03-29

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. – Heard Sri Subodh Kumar Senior Advocate, assisted by Sri Udit Chandra for the petitioner and Sri Bhanu Bhushan Jauhari for the respondents. 2. In this petition the following reliefs have been claimed : - (i) To issue an order or direction calling for the records and to set aside the impugned judgement and order dated 19.12.2015 passed by Additional District Judge, Court No. 8, Bareilly in Civil Revision No. 14 of 2015, Satish Kumar v. Saleem Beg and others, and the impugned order dated 11.11.2014 passed by Additional Civil Judge (Senior Division)-III, Bareilly in Original Suit No. 207 of 2011, Saleem Beg v. Anand Prasad and others (Annexure Nos. 1 and 2 respectively to this application). (ii) To issue an order or direction staying the further proceedings in Original Suit No. 207 of 2011, Saleem Beg v. Anand Prasad and others, pending before Additional Civil Judge (Senior Division)-III, Bareilly. (iii) To issue an order or direction commanding and directing the trial court to decide the application dated 18.3.2011 (Paper No. 36-C) (Annexure No. 11 to the application) moved by defendant No. 5/applicant under Order 7, Rule 11 CPC forthwith. (iv) To issue any other suitable order or direction, which this Hon'ble Court may deem fit and proper. (iv) To award the cost of the application in favour of the applicant. 3. So far as the order of Additional Civil Judge dated 11.11.2014 is concerned, by this order the Additional Civil Judge had directed to hear the Amendment Application No. 147 ka and 179 ka before deciding the application of the petitioner (36-C) under Order 7, Rule 11 CPC. 4. The counsel for the petitioner submits that earlier O.S. No. 636 of 1991 was filed by Himayat Ullah Khan and Chhotey Beg, father of Saleem Beg. That suit was dismissed by trial court by order dated 24.4..2004. Thereafter, Civil Appeal No. 33 of 2004 was filed which was also dismissed by order dated 15.3.2008. After dismissal of appeal Saleem Beg @ Babbu filed another suit i.e. O.S. No. 345 of 2004. The plaint of the suit was rejected under Order 7, Rule 11 CPC by order dated 25.1.2010. Thereafter, Civil Appeal No. 33 of 2004 was filed which was also dismissed by order dated 15.3.2008. After dismissal of appeal Saleem Beg @ Babbu filed another suit i.e. O.S. No. 345 of 2004. The plaint of the suit was rejected under Order 7, Rule 11 CPC by order dated 25.1.2010. Saleem Beg @ Babbu challenged the aforesaid order in Civil Appeal No. 25 of 2010 which was dismissed by the appellate court by judgment dated 3.8.2010 and thereafter an application under Order 41, Rule 19 CPC was filed by Saleem Beg @ Babbu on which the order dated 3.8.2010 was recalled and thereafter appeal was heard on merit. Thereafter appeal was again dismissed by judgment dated 17.11.2014. During pendency of this appeal a third suit i.e. O.S. No. 207 of 2011 was filed by Saleem Beg @ Babbu. The petitioner moved an application i.e. Application 36 C on 18.3.2011 under Order 7, Rule 11 CPC. The trial court instead of passing any order on the application of the petitioner, adjourned the case for about 3 years. In the meantime Saleem Beg @ Babbu filed an application for amendment of the plaint on 1.7.2014 and the trial court is now proceeding by the impugned order and proposed to decide the amendment application before deciding the application of the petitioner under Order 7, Rule11 CPC. Although this Court in Rajeev Mishra v. Sanjay Srivstava, 2011 (89) ALR 834 held that when application under Order 7, Rule 11 has been moved then the application is required to be decided before proceeding in the suit. He also relied upon the judgment of Madras High Court in N.A. Chinnasamy v. S. Vellingirinathan, 2014 (11) RCR (Civil), 2745, in which it has been held that the plaint which is abuse of process of the court, can be quashed in exercise of powers under Article 227 of the Constitution. 5. I have considered the arguments of the counsel for the parties and examined the records. 6. So far as the judgment of Madras High Court is concerned, in this petition there is no prayer for quashing the plaint, therefore, judgement of Madras High Court in N.A. Chinnasamy (supra) is not applicable in this case. 7. By the impugned order the trial court has directed to decide the amendment application before deciding the application of the petitioner under Order 7, Rule 11 CPC. 7. By the impugned order the trial court has directed to decide the amendment application before deciding the application of the petitioner under Order 7, Rule 11 CPC. This order of the trial court is fully in consonance with the law laid down by Delhi High Court in Kohli One Housing & Development (P) Ltd. v. C.S. Aggarwal, 2014 (213) DLT, 343. Otherwise also the trial court before deciding the application under Order 7, Rule 11 CPC can permit the plaintiff to remove the defect in the plaint. Thus the order of the trial court does not cause any prejudice to the petitioner. Therefore at present it cannot be said that by the impugned order there is any miscarriage of justice. The effect of the order is only that the application of the petitioner will be decided later on, after deciding the amendment application of the petitioner. 8. No interference is required by this Court at this stage. Petition is dismissed. Petition dismissed.