MAHESH CHANDRA Vs. SRI BISHAN DAYAL

JUDGEMENT

(1.) Heard learned counsel for the petitioner and Sri Madhav Jain, learned counsel for the contesting respondent.

(2.) The challenge in the present petition is to the orders dated 5 July 2010 and 3 May 2014. In terms of the first order, the trial Court has refused to entertain or pass orders on the application filed by the petitioner under Order 7, Rule 11 C.P.C. alleging that the suit would be barred in terms of Sec. 69 of the Indian Partnership Act. The Trial Court further issued directions commanding the petitioner-respondent to file his written statement and that it would consider the said application thereafter. This order of the trial Court has been affirmed by the revisional Court in terms of its judgment dated 3 May 2014.

(3.) Learned counsel referring to the decisions rendered in Shoib Ullah and others Vs. Bhartesh Chandra Jain and another(2002 (5) AWC 3859) as also a recent decision of the Supreme Court in R.K. Roja Vs. U.S. Rayudu (2016) 14 SCC 275 has submitted that the provisions of Order 7, Rule 11 cast a mandatory obligation upon the Court to decide at the very outset whether the plaint discloses a cause of action or is otherwise barred by law. He submitted that this decision cannot be deferred awaiting the filing of a written statement since undisputedly the disposal of an application under order VII Rule 11 would have to necessarily be confined to a reading of the plaint allegations alone or in case the objection taken be one which falls under sub-clause (d) then the relevant provisions of the statute which bar or oust the jurisdiction of the civil court. In view of the above, he would submit that the courts below clearly erred in refusing to entertain the said application and passing orders thereon.