Indian Kanoon - Search engine for Indian Law

Himachal Pradesh High Court

Kimtu Devi vs State Of Himachal Pradesh & Ors on 15 October, 2019

Bench: L. Narayana Swamy, Dharam Chand Chaudhary

        IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
                                 LPA No. 38 of 2019
                            Date of decision: October 15, 2019.




                                                                 .
    Kimtu Devi.                              .....Appellant.





                            Versus
    State of Himachal Pradesh & ors.           .....Respondents.





    Coram
    The Hon'ble Mr. Justice L. Narayana Swamy, Chief Justice.
    The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
    Whether approved for reporting? 1 Yes.





    For the appellant   :   Mr. S.S. Mittal, Senior Advocate with Mr.
                            Ajay Kumar Dhiman, Advocate.

    For the respondents :   Mr. Ajay Vaidya, Senior Addl. AG with Mr.
                            J.K. Verma and Mr. Adarsh Sharma, Addl.
                           rAGs for respondents No.1 and 2.

    Dharam Chand Chaudhary, Judge (Oral)

This appeal is directed against the order passed by learned Single Judge in OMP No. 120 of 2019 (COMS No. 34 of 2018). The challenge to the impugned order is on the grounds, inter-alia, that since the defence of the defendants (respondents herein) in the main suit stand struck off, therefore, the application under Order 7 Rule 11 CPC was not maintainable.

Also that the impugned order could have not been passed by learned Single Judge without deciding the application registered as OMP No. 121 of 2019 filed under Order 8 Rule 10 CPC by the appellant-plaintiff with a prayer to close the defence of the respondents-defendants as they failed to file the written statement within the stipulated period. As per the provisions contained under Order 14 Rule 1 CPC the issues could have not been framed in the absence of pleadings.

1

Whether the reporters of the local papers may be allowed to see the Judgment? yes.

::: Downloaded on - 19/10/2019 20:24:08 :::HCHP 2

2. On hearing Mr. S.S. Mittal, Sr. Advocate assisted by Mr. Ajay Kumar Dhiman, Advocate and learned Senior Additional .

Advocate General and also going through the impugned ordr, we find that the issues have not been framed in the main suit and rather in the application registered as OMP No. 113 of 2019 filed by respondent No. 2 under Order 7 Rule 11 CPC for rejection of the plaint. The appellant-plaintiff has admittedly fled reply thereto. Therefore, it is on the basis of the pleadings of the parties, the issues have been framed in the application OMP No. 113 of 2019 vide order under challenge in this appeal. The appellant-plaintiff has confused herself while submitting that issues have been framed in the main suit without there being the written statement filed by the respondents-defendants.

3. We are also not satisfied with the submission that without deciding the application OMP No.121 of 2019 filed by the appellant-plaintiff under Order 8 Rule 10 CPC, the order under challenge could have not been passed for the reason that the prayer in the said application has been made to struck off the defence of the respondents-in the main suit. Otherwise also, the order under challenge not decides the application under Order 7 Rule 11 CPC finally which as as matter of fact will stand disposed of finally after taking on record the evidence of the parties and affording to them the opportunity of being heard. In this view of the matter also, the present appeal filed under Clause 10 of Letters Patent is not maintainable.

::: Downloaded on - 19/10/2019 20:24:08 :::HCHP 3

4. Learned Single Judge on the basis of the pleadings of the parties in the application under Order 7 Rule 11 CPC has .

framed issues and the matter has now been fixed for admission/denial of the documents and also fixation of the date for recording evidence of the applicant in the application. The order under challenge is an interim order. The appeal under Clause 10 of Letters Patent against such order is not maintainable. Otherwise also, the appellant (plaintiff in the suit) at this stage cannot be said to be aggrieved in any manner whatsoever by the order under challenge. The appeal, as such, is dismissed being not maintainable, so also the pending application(s), if any.

(L. Narayana Swamy), Chief Justice.

(Dharam Chand Chaudhary), Judge.

October 15, 2019, ( vs) ::: Downloaded on - 19/10/2019 20:24:08 :::HCHP