Smt. Siyabai and Others vs Pavan and Others

Sanjay Yadav, J.—Heard on admission.

Order-dated 13.3.2014 passed in Regular Civil Suit No. 18A/2013 by the Fifth Civil Judge Class II Chhindwara is being assailed vide this revision u/s 115 of the Code of Civil Procedure, 1908; whereby, an application under Order 7 Rule 11(b)(c)(d) CPC filed the petitioners/defendants for dismissal of suit, has been dismissed.

Suit by respondent no. 1/plaintiff is for declaration of title and permanent injunction as regard to property bearing Khasra No. 391 area 1.376 hectare, Khasra No. 404 area 1.101 hectare, Khasra No. 97 area 1.619 hectare, Khasra No. 426 area 0.829 hectare, Khasra No. 93 area 1.428 hectare & Khasra No. 94 area 1.514 hectare situated at P.C. 18 Survey No. 123 of Mouza Gagiwada Tahsil and District Chhindwara.

On being summoned, the defendants raised an objection as to maintainability of the suit of the ground that the suit is undervalued and that the proper Court fees has not been paid and the suit is barred by limitation.

The trial Court, by impugned order, negatived the claim and declined to dismiss the suit on preliminary grounds on a finding that they being mixed question of fact and law can be dwelt upon after recording of evidence on merit.

It has been held in Mayar (H.K.) Ltd. and Others Vs. Owners and Parties, Vessel M.V. Fortune Express and Others, that a suit cannot be dismissed merely on the basis of the allegation made by the defendant in his written statement or in an application for rejection of the plaint.

In view whereof, there being no jurisdictional error by the trial Court, no interference is caused.

Consequently, revision fails and is dismissed in limine. No costs.