Smt. Sushila Bai and others. vs Lachhiram and another

This appeal filed under Order 43 Rule 1(u) of the Code of Civil Procedure is directed against the judgment dated 7.8.2004 passed in Civil Appeal No.1A/1999.

Briefly stated, the facts of the case are that the plaintiff respondent filed a suit for declaration and permanent injunction against the defendant/appellant. The defendant/appellant filed his written statement and denied the plaint averment. In addition, he filed an application under Section 9 of CPC r/w Section 57(2) of M.P. Land Revenue Code for dismissal of the suit on the ground of maintainability. The trial court by order dated 9.12.1990 dismissed the suit on the ground that the suit land was government land and if there was any dispute with regard to settlement of the same in favour of anyone, it is the Revenue Code which alone has jurisdiction to decide the said aspect and Civil Court has no jurisdiction to decide the same.

Aggrieved, the plaintiff/respondent filed appeal before the court below. The court below allowed the said appeal and remitted the matter back by directing the defendant to file written statement wherein a preliminary objection regarding maintainability of the suit can be taken.

It was further directed that the preliminary issue regarding maintainability may be decided by the trial court.

Shri Ashish Shroti criticised the impugned judgment by contending that although application filed by the defendant before the trial court was filed under Section 9 of CPC read with Section 57(2) of MPLRC, in nutshell, it can be treated to be an application under Order 7 Rule 11 CPC. This is trite law, as contended by Shri Shroti that the objections raised in an application preferred under Order 7 Rule 11 can be decided on the basis of plaint averments. In that eventuality, it is not necessary for the defendant to file complete written statement and take preliminary objection in it. He placed reliance on 2003 (1) SCC 557 ( Saleem Bhai and others vs. State of Maharashtra and others ) in support of aforesaid contention, Shri Shroti further submits that the trial court did not commit any error in deciding the question of maintainability.

The prayer is opposed by Shri Dilip Parihar, learned counsel for the respondent No.1. He contends that the application regarding maintainability cannot be treated as an application preferred under Order 7 Rule 11 CPC. Had it been an application of that nature, trial court would have given a specific finding in this regard and; in that case, the plaintiff could have assailed it by filing a petition under Article 227 of the Constitution/Civil Revision. He submits that there is no legal or procedural error in the judgment impugned.

No other point is raised by the learned counsel for the parties.

I have heard the learned counsel for the parties and perused the record.

8,. Admittedly, the application decided by the trial court was preferred under Section 9 of CPC r/w Section 57(2) of the Code. At this stage, in my opinion, it will be proper to treat the said interlocutory application filed by the defendant before the trial court as an application under Order 7 Rule 11 CPC. This was not the argument of the appellant before the

first appellate court. Thus, the judgment cited in this regard which deals with and based on Order 7 Rule 11 CPC cannot be pressed into service.

It is seen that the court below in the impugned judgment opined that the matter was placed before the trial court for filing of written statement. Rather filing the written statement, an application under Order 9 CPC aforesaid was filed. It was not argued before the lower appellate court that the said interlocutory application about the maintainability can be treated as an application under Order 7 Rule 11 CPC. The court below opined that in view of objection, a preliminary issue could have been made regarding maintainability of the petition. Accordingly, the matter was remitted back and the defendants were directed to file written statement before the trial court. In the written statement, the defendants were directed to raise objection regarding maintainability of the case. The trial court was directed to frame a preliminary issue about maintainability of the suit and decide it in accordance with law.

In the opinion of this Court, court below has taken a plausible view which is neither perverse nor without jurisdiction. This direction would not cause any prejudice to the other side/defendant. Thus, I find no reason to interfere in the impugned judgment.

Appeal, accordingly, fails and is hereby dismissed. No cost.