Pramod Jain vs Vijay Kumar Jain

Arun Bhansali, J

This writ petition is directed against the order dated 29.9.2022 passed by the trial court, whereby, the application filed by the petitioner under Order VII Rule 11 CPC seeking rejection of the plaint, has been dismissed.

The suit was filed by the respondent – plaintiff seeking eviction, possession and mesne profit. The petitioner filed application under Order VII Rule 11 CPC inter alia raising issues pertaining to filing of and withdrawal of a previous suit and the fact that the boundaries of the suit property and that of the tenement were different.

The application was contested by the plaintiff.

The trial court, after hearing the parties, came to the conclusion that the issues as raised cannot form subject-matter of an application under Order VII Rule 11 CPC as the same is confined to the averments contained in the plaint and consequently, dismissed the application.

Learned counsel for the petitioner made submissions that the trial court was not justified in rejecting the application, inasmuch as, the averments contained in petitioner’s application under Order VII Rule 11 CPC clearly made out a case that the suit filed was frivolous and even if the issues raised did not fall within the parameters of Order VII Rule 11 CPC, still the plaint could have been rejected under Section 151 CPC.

Learned counsel appearing for the respondent supported the order impugned.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

The issue sought to be raised by the petitioner by way of application under Order VII Rule 11 CPC, essentially is factual and the same would require leading of the evidence by parties and only by application under Order VII Rule 11 CPC, the said aspects as raised cannot be determined and, therefore, the trial court was justified in rejecting the application.

No case for interference is made out in the present revision petition. The same is, therefore, dismissed.

As the petitioner has already raised the said aspect in the written statement and the trial court has already framed the issues on the said aspect, rejection of the present revision petition would not affect the merits of the pleas raised by the petitioner.