Sri Ashish Agrawal, learned counsel for the petitioner while assailing the impugned judgments orders dated 20th November,2009 and 5th October,2009 passed in Civil Revision No. 38 of 2009 (Pramod Kumar Agarwal Vs. Dwarika Prasad Agarwal) and in SCC Suit No. 83 of 1997 respectively between the same parties has submitted before the Court that the learned Judge Small Cause Court has erred in law in rejecting the petitioner's application without appreciating this fact that the landlord has not specifically mentioned that the provisions of Act No. 13 of 1972 are not attracted and further there was no averment with regard to the date of sending of notice and its receipt by the other side, therefore, the cause of action mentioned in the plaint was not reliable. The petitioner's revision has also been dismissed without considering these aspects and it was dismissed only on the ground that the application has been filed only with a view to delay the proceedings. In the submissions of Sri Agrawal the provisions of Order 7 Rule 11 can be invoked at any stage of the proceedings. In support of his submissions, he has placed reliance upon the judgment of the Apex Court reported in 2003 (1) SCC 557 Salim Bhai and others Vs. State of Maharashtra and others where the Apex Court has taken the view that the provisions of Order 7 Rule 11 can be exercised at any stage of the proceedings.
Matter requires consideration.
Issue notice.
In addition to normal mode of service, the learned counsel for the petitioner is directed to serve the respondent outside the Court for which the dasti notice be issued by the Office after taking steps by the petitioner.
Steps be taken within a week.
List this case on 15th February, 2010.
As an interim measure without prejudice to the right and contention of the parties, it is provided that the proceedings of SCC Suit No. 83 of 1997 (Dwarika Prasad Agrawal Vs. Pramod Kumar Agarwal) may go on but final judgment will not be delivered till the next date of listing.
Dt/- 6.1.2010 Pratima/