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2016 DIGILAW 1630 (RAJ)

Gautam Nath S/o Badri Nath v. Sohan Singh S/o Bhawani Singh

2016-11-16

VIJAY BISHNOI

body2016
ORDER : Mr. Vijay Bishnoi, J. This revision petition has been filed by the petitioner-defendant being aggrieved with the order dated 29.08.2016 passed by the Additional District Judge No. 4, Jodhpur Metropolitan (hereinafter referred to as 'the trial court') in Civil Suit No. 56/2014 (10628/14), whereby the application filed by the petitioner-defendant under Order 7, Rule 11 CPC for rejecting the suit filed by the respondent-plaintiff at the threshold has been rejected. 2. The undisputed facts of the case are that the respondent-plaintiff filed a suit for recovery of amount of Rs.2,10,910/- along with interest @ 12% per annum against the petitioner-defendant in the year 2003 before the trial court. After filing of the written statement by the petitioner-defendant, the trial court has framed issues and the evidence of the respondent-plaintiff had also been concluded and the matter was fixed for recording the defence evidence. At this stage, the petitioner-defendant has preferred an application under Order 7, Rule 11 CPC on 04.12.2015 while claiming that the respondent has no cause of action to sue the petitioner-defendant and the suit filed by him is time barred. The application filed by the petitioner-defendant under Order 7, Rule 11 CPC has been contested by the respondent-plaintiff and the trial court after hearing both the parties has rejected the said application vide impugned order. 3. Learned counsel for the petitioner-defendant has submitted that as a matter of fact when the respondent-plaintiff has no cause of action to sue the petitioner-defendant, the trial court should have reject the suit filed by the respondent-plaintiff against the petitioner-defendant. It is also argued that the suit filed by the respondent-plaintiff against the petitioner-defendant is clearly time barred, however, the trial court without taking into consideration this aspect of the matter has illegally rejected the application filed by the petitioner-defendant under Order 7, Rule 11 CPC vide impugned order. It is, therefore, prayed that the impugned order may kindly be set aside. 4. Heard learned counsel for the petitioner-defendant and perused the impugned order as well as the material available on record. 5. It is, therefore, prayed that the impugned order may kindly be set aside. 4. Heard learned counsel for the petitioner-defendant and perused the impugned order as well as the material available on record. 5. The trial court in the impugned order has specifically observed that on the basis of the pleadings of the parties, the issue regarding the limitation has already been framed and the question of delay in filing the suit is a mixed question of fact and law and can only be decided after taking into consideration the evidence adduced by the parties, hence, the suit filed by the respondent-plaintiff cannot be dismissed on the ground of limitation. 6. Though, the trial court has not specifically held that from whole some reading of the plaint it is clear that the respondent-plaintiff was having cause of action to sue the petitioner-defendant but after going through the copy of the plaint, annexed with this revision petition, filed by the respondent-plaintiff, this Court is of the opinion that from whole some reading of the plaint of the respondent-plaintiff, it cannot be said that he had no cause of action to sue the petitioner-defendant. 7. In view of the above, discussion, I don't find any merit in this revision petition and the same is hereby dismissed. 8. Stay petition also stands dismissed.