Ramnaresh Yadav vs Triyambak Fatak

Rohit Arya, J.—Heard.

This Civil Revision u/s 115 CPC by defendant is directed against the order dated 01/05/2014 in civil suit No. 1A/2014 by VIII Civil Judge, Class-II, Gwalior, defendant''s application under Order VII Rule 11 CPC has been rejected.

Facts necessary for disposal of this revision petition in narrow compass are that plaintiff has filed a suit styling himself to have title over the suit property and defendant is a tenant in the said suit house. The instant suit is filed for eviction and arrears of rent under the provisions of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as ''the Act'').

Defendant by the aforesaid application submitted that the suit house in fact is a trust property created for by late Dr. Leela Fatak in the name and style Dr. Fatak Child and Mother Welfare Trust on 05/03/1989. It is denied that the suit house is of the ownership of plaintiff with further assertion that plaintiff has prepared a forged ''will'' and has claimed right of ownership of suit house through the same. It is submitted that as the suit property being trust property and the suit is not instituted by trust and, therefore, in the light of provisions of section 3 of the Act, the suit is not maintainable.

Trial Court upon perusal of the averments made in the plaint has observed that in the entire body of plaint, there is no such averment that the suit house is a public trust property. Besides, the extract of public trust register produced by the plaintiff shows that against the column of immovable property, nil is mentioned against the name of Dr. Fatak Sishu Avam Mahila Kalyan Nyas.

In view of the aforesaid, trial Court has found that the application does not fall in any of the accepted categories under Order VII Rule 11 CPC warranting interference and dismissal of the suit at the first instance.

The principle is well settled as regards jurisdiction under Order VII Rule 11 of CPC. The Court competent jurisdiction while entertaining such an application is required to look into the plaint averments and the documents attached thereto to assess and reach conclusion that on perusal of it, if cogent material exists, the suit may be dismissed and not otherwise. In the instant case, the Court below has applied the aforesaid principle.

The Supreme Court in the case of Bhau Ram Vs. Janak Singh and Others, has held as under:

In order to ascertain an answer for the above question, we have to consider whether the application under Order 7 Rule 11 CPC filed by the defendant can be decided merely on the basis of the plaint and whether the other materials filed by the defendant in support of the application can also be looked into. The trial court allowed the application of the appellant-Defendant 1 filed under Order 7 Rule 11 CPC on the ground that the plaint was barred under the provisions of Order 9 Rules 8 and 9 CPC and Order 23 Rules 1(3) and 1(4)(b) CPC. The said order of the trial court was set aside by the first appellate court on the ground that the trial court had taken the pleas from the written statement of the defendant which is not permissible under Order 7 Rule 11 CPC and the High Court in the second appeal confirmed the judgment of the first appellate court.

In view of the above, this Court satisfies that the Court below has correctly applied the principle of law and rightly rejected the application under Order VII Rule 11 CPC. Hence, there is no jurisdictional error in the impugned order. However, it is observed that any observations made by the Court below shall not prejudice rights of either of the parties in the trial. It is further observed that this Court has not expressed any opinion on merits of the case.

Civil Revision sans merit and is accordingly dismissed.

Certified copy as per rule.