Lala Ram vs Vitthal Pustkalya and Another

Mahesh Bhagwati, J.—By way of the instant writ petition, the Petitioner has beseeched to quash and set-aside the order dated 23rd February, 2010, whereby the learned Civil Judge (Junior Division), Kekri, dismissed the applications filed by the Defendant-Petitioner under Order 31 readwith Order 7 Rule 11 (d) Code of Civil Procedure; and Section 10, 11, 12 readwith Order 2 Rule 1 and 2, Order 9 Code of Civil Procedure.

Having heard the learned Counsel for the Petitioner it is noticed that the learned trial court while dismissing the application under Order 33 readwith Order 7 Rule 11(d) CPC observed that the objection, which was raised by the Defendant-Petitioner, could be adjudicated after framing the issue at the time of final disposal of the suit.

So far as the another application filed under Sections 10, 11, 12 readwith Order 2 Rule 1, 2 and Order 9 CPC was concerned, the learned trial court while dismissing the said application observed that the Petitioner-Defendant failed to produce any evidence to the effect that the previously instituted suit was dismissed on merits or any issue framed in this regard was adjudicated.

The Hon''ble Apex Court in plethora of cases has consistently held that the jurisdiction under Article 227 of the Constitution must be sparingly exercised to correct errors of jurisdiction and the like, but not to upset pure findings of fact. The Hon''ble Apex Court has also held that the High Court should not interfere with the order of the inferior court, unless the same is found to be perverse or not based on any material or it results in manifesting injustice.

Having ruminated over the submissions made by the learned Counsel for the parties and carefully scanned the relevant material on record, it appears that there are some disputed questions of fact as well as law. In the case of Popat and Kotecha Property v. State Bank of India Staff Association reported in 2005 (2) WLC (SC) Civil 588, the Hon''ble Apex Court has held thus:

Clause (d) of Order VII Rule 11 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order VII Rule 11 Code of Civil Procedure. Clause (d) of Rule 11 of Order VII applies in those cases only where the statement made by the Plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.

In Saleem Bhai and Others Vs. State of Maharashtra and Others, the Hon''ble Apex Court has held with reference to Order VII Rule 11 of the Code that "the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power at any stage of the suit before registering the plaint or after issuing summons to the Defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are germane; the pleas taken by the Defendant in the written statement would be wholly irrelevant at that stage."

The crux of aforesaid judgments is that the disputed questions cannot be decided at the time of considering an application filed under Order VII Rule 11 of Code of Civil Procedure. Clause (d) of Rule 11 of Order VII applies in those cases only where the statement made by the Plaintiff in the plaint, without any doubt or dispute, shows that the suit is barred by any law in force. The learned trial court is found to have un-erringly dismissed the applications filed under Order 7 Rule 11 (d) of CPC as well as Sections 10, 11, 12 read with Order 2 Rule 1 and 2 Order 9 Code of Civil Procedure.

Since the Petitioner-Defendant had utterly failed to adduce evidence to the effect that previously instituted suit was dismissed on merits or any issue framed in this regard was adjudicated, the learned trial court is found to have rightly dismissed the application filed under Sections 10, 11 and 12, Order 2 Rule 1 and 2 and Order 9 Code of Civil Procedure.

The impugned order is found to be perfectly just and proper. There does not seem to be any perversity in the impugned order nor is it found to be contrary to the provisions of law. In view thereof, this Court does not find any ground to interfere with the impugned order passed by the learned court below and the writ petition being devoid of any substance deserves to be dismissed.

For the reasons stated above, the writ petition fails and the same being bereft of any merit deserves to be dismissed, which stands dismissed.

Consequent upon the dismissal of writ petition the stay application, filed therewith, does not survive and that also stands dismissed.