Madhya Pradesh High Court
Krishna Kumar Anand vs Varun Anand on 3 October, 2019
1
HIGH COURT OF MADHYA PRADESH
Civil Revision No. 241/2016
(Krishna Kumar Anand Vs. Varun Anand & others)
Jabalpur, Dated: 3/10/2019
Shri Divesh Jain learned counsel for petitioner.
Shri G.S. Baghel learned counsel for respondent no.1.
Heard.
By this revision petition under Section 115 of CPC the defendant no. 1 in the suit has challenged the order of trial court dated 5/5/2016 rejecting the petitioner's application under Order 7 Rule 11 CPC.
Learned counsel for petitioner has raised the main issue that objection of petitioner before the trial court was in respect of non disclosure of cause of action and suit being barred by time but these two main objections have not been examined by trial court while rejecting the application.
As against this learned counsel for respondent no.1 has supported the impugned order.
Having heard the learned counsel for parties and on perusal of the record it is noticed that respondent no.1 has filed the suit for declaration, partition and possession and in that suit the petitioner being defendant no.1 had filed the application under Order 7 Rule11 CPC seeking rejection of plaint.
A perusal of said application clearly reveals that petitioner had raised the objection that plaint does not disclose cause of action and that the suit is barred by time. Submission of counsel for petitioner before this court is also that on the basis of plaint averment itself the suit is barred by time.
The impugned order passed by trial court reveals that trial curt has not examined the aforesaid objection of the petitioner and has rejected the application merely by examining the issue of 2 maintainability of suit after alleged earlier partition.
Having regard to the aforesaid, I am of the opinion that trial court is required to decide the petitioner's application under Order 7 Rule 11 CPC in the light of the grounds which are mentioned above and which are also raised in the said application. Since this exercise has not been done by the trial court, therefore, the impugned order of trial court cannot be sustained and is hereby set aside with a direction to the trial court to decide the application of petitioner afresh in accordance with law.
It is made clear that this court has not expressed any opinion on merit of the grounds which are raised by the petitioner in the application under Order 7 Rule 11 CPC.
The revision petition is accordingly disposed off. C.C. as per rules.
(Prakash Shrivastava) Judge BDJ Bhuneshwar Datt 2019.10.03 16:58:29 +05'30'