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2019 DIGILAW 2030 (RAJ)

Tej Singh v. Kishan Lai

2019-07-23

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT Pushpendra Singh Bhati, J. - The petitioner/defendant no. l has preferred the present revision petition seeking the following relief :- "It is, therefore, most respectfully prayed on behalf of the petitioner that the revision petition may kindly be allowed and the order dated 01.08.2018 passed by the learned Additional District Judge No. 2, Jodhpur Metropolitan in Civil Original Case No. 122/2008 (NCV No. 14463/2014) may kindly be quashed and set aside and the application filed by the petitioner under Order 7 Rule 11 CPC may kindly be ordered to be allowed and the suit filed by the plaintiff may kindly be rejected. " 2. Counsel for the petitioner makes a limited prayer that while deciding the application under Order 7 Rule 11 CPC, the learned court below has merely postponed the issue of taking a call upon issue and maintainability of the suit under Section 31 of the Specific Relief Act, 1963. 3. The objection of petitioner is that the respondent being a non-executor of sale-deed dated 28.10.2005 was not entitled to bring a suit of cancellation but at the most he could have brought a suit for declaration. 4. Counsel for the petitioner submits that rather than postponing the decision on the objection under Order 7 Rule 11 CPC, the court below has kept it for a future stage to be decided after taking evidence as issue no.4. 5. Counsel for the respondent submits that the order passed by the learned court below was justified as the issue no.4 could very well be decided along with other issues at the time of adjudication after taking proper evidence. 6. After hearing counsel for the parties, this Court is of the opinion that rather than taking a view of deciding the issue at a future point the court should have decided issue at this stage only because the maintainability of the suit under Section 31 is an issue which does not require any evidence to be decided and rather can be simply decided by seeing the prayers and pleadings of the suit of the respondents. 7. In light of aforesaid observation, the order dated 01.08.2018 passed by learned Additional District Judge No.2,Jodhpur Metropolitan in Civil Original Case No.122/2008 (NCV No. 14463/2014) is quashed and set aside and the learned court below is directed to decide the application under Order 7 Rule 11 CPC afresh. 7. In light of aforesaid observation, the order dated 01.08.2018 passed by learned Additional District Judge No.2,Jodhpur Metropolitan in Civil Original Case No.122/2008 (NCV No. 14463/2014) is quashed and set aside and the learned court below is directed to decide the application under Order 7 Rule 11 CPC afresh. In case the respondent desires to bring application under Order 6 Rule 17 CPC, the same shall be heard along with the same application strictly in accordance with law. Needless to say that the defendant-respondents no.2 & 3 shall be entitled to take their stand strictly in accordance with law.