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Mahila Panchobai vs Late Abdul Hammed

Madhya Pradesh High Court · Decided on 2 August 2013 · Citation: (2013) 08 MP CK 0190

HON’BLE JUDGES
Sujoy Paul, J
ACTS & SECTIONS REFERRED
Civil Procedure Code, 1908 (CPC) — Order 7 Rule 11 · Constitution of India, 1950 — Article 227
RESULT
Allowed
CASE NUMBER
Writ Petition No. 9179 of 2012
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Judgment

7 paragraphs · 358 words

Sujoy Paul, J.—Heard. By filing this petition under Article 227 of the Constitution the petitioner has assailed the order dated 13.09.2012 whereby his application under Order 7 Rule 11 C.P.C. was rejected.

2.

By filing the said application the petitioner prayed that the issue No. 7 which was regarding valuation be decided as preliminary issue. In addition, prayed that the question of limitation be also decided as preliminary issue. The Court below has rejected it on the ground that the said questions are mixed questions of facts and law and, therefore, can be decided legally at appropriate time. It is further opined that without recording evidence these questions cannot be decided. Accordingly, the matter was fixed for evidence. This order was passed by the Court below way back on 13.09.2012. Shri Mahesh Goyal submits that the order is bad in law and the Court below should have allowed the application Annexure P/5.

3.

I have heard learned counsel and perused the record.

4.

The Court below has passed a detailed order assigning reasons on the contention of the petitioner. This Court in 2007(2() MPLJ 524 (Shadab Grih Nirman Sahakari Sanstha Maryadit, Bhopal Vs. Parita Grih Nirman Sahakari Samity Maryadit, Bhopal and another) held as under:-

(a) Preliminary issue - Suit for possession-Question of valuation of suit-if is raised in written statement it cannot be decided as preliminary issue-Must be adverted to only at the time of final decision after recording evidence (para 9).

(b) Preliminary issue-Suit filed for declaration that sale deed was void ab initio-Question of limitation is mixed question of law and fact-Mixed questions of law and fact could not be decided as preliminary issues. Hari Shankar Singhania and Others Vs. Gaur Hari Singhania and Others,

5.

Considering the aforesaid, no legal flaw can be found in the order passed by the Court below. Interference under Article 227 of the Constitution can be made if order impugned is without jurisdiction, suffers from any palpable perversity or manifest procedural impropriety. Another view is possible is not a ground for interference. I find no ingredient on which interference can be made. Petition is meritless and is hereby dismissed.