Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 8059 of 2018 Petitioner :- Raj Kumar And 2 Others Respondent :- Civil Judge (Junior Division) Fast Tract Court Kanpur Nagar And 3 Others Counsel for Petitioner :- Chandra Bhan Gupta
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioners and perused the record.
The present petition is directed against the order dated 15.03.2018 passed by the Court below i.e. Civil Judge (Junior Division) District Kanpur Nagar whereby the application 56- Ga/2 filed by the plaintiffs on the basis of a judgment and order dated 19.8.2017 passed by this Court, has been decided.
While deciding the matter, the Court below has recorded a categorical finding that the plea of rejection of plaint taken by the defendants under Order VII Rule 11 C.P.C. would not fall within the purview of the conditions provided in clauses 'a' to 'd' of Order VII Rule 11 C.P.C.
The preliminary issues of valuation and court fee have not yet been decided. The adjudication on the plea of rejection of plaint taken by the defendants would require leading of evidence. Meaning thereby that the plaint cannot be rejected under Order VII Rule 11 C.P.C. for the plea taken by the defendants.
It is further apparent from the record that after rejection of the application 52-Ga/2, the petitioners/defendants moved another application (Paper No. 124 and 128-Ga) dated 28.07.2018 with the assertion that in compliance of the directions issued by this Court in the judgment and order dated 19.08.2017 in Matter Under Article 227 No. 4738 of 2017, it is incumbent upon the Court below to decide the matter under Order VII Rule 11 C.P.C. on merits and only then it can proceed to pass an order on the temporary injunction application. This application was objected by the plaintiffs by filing objections vide a Paper No. 129-Ga.
It is categorically observed by the Court below that the defendants are trying to stall the proceedings of the suit and the plea of rejection of plaint under Order VII Rule 11 C.P.C. had already been decided with the dismissal of the Application 52- Ga.
Having perused the order dated 15.3.2018 and the order dated 28.9.2018, this Court is of the considered opinion that there is no error on the part of the Court below in rejection of the Application 124 and 128-Ga moved by the defendants insisting the Court below to decide the Order VII Rule 11 C.P.C. afresh. On the merits of the order dated 15.3.2018, the submission of learned counsel for the petitioners is that the present suit for eviction of the defendants has been filed by the plaintiffs on the basis of the decree passed in Original Suit No. 2250 of 2012 wherein a declaration was granted in favour of the plaintiffs therein.
Submission is that the said suit was filed against a Cooperative Society namely, Navin Shahkari Nivas Grih Nirman Samiti Ltd. and the defendants herein were not party to the said suit. On the basis of the decree passed in the said suit when the defendants were not parties, the decree of eviction cannot be granted by the Court below.
It is also contended that the properties of the present suit and that of the Original Suit No. 2250 of 2012 where a declaratory decree had been passed in favour of the plaintiffs, are different.
Both the arguments of learned counsel for the petitioners cannot be made basis to seek rejection of Order VII Rule 11 C.P.C., inasmuch as, any adjudication on the said dispute raised by the defendants would require appreciation of evidence to be led by both the parties. Any defence taken by the defendants, in the written statement, cannot be taken as a ground for rejection of the plaint under Order VII Rule 11 C.P.C. None of the conditions for rejection of the plaint as provided in Clauses 'a' to 'd' of Order VII Rule 11 C.P.C. are satisfied in the facts and circumstances of the case.
In view thereof, no infirmity is found in the order dated 15.3.2018 passed by the Civil Judge (Junior Division) District Kanpur Nagar in dismissal of the Application 52-Ga to conclude that the plaint cannot be rejected under Order VII Rule 11 C.P.C. on the objections of the defendants.
The present petition is found wholly misconceived and is dismissed as such.
Order Date :- 27.10.2018 Kamar