DILEEP KUMAR MISHRA Vs. SUNIL KANDWAL
LAWS(UTN)-2012-11-19
HIGH COURT OF UTTARAKHAND
Decided on November 06,2012

Dileep Kumar Mishra Appellant
VERSUS
Sunil Kandwal Respondents

JUDGEMENT

V.K. Bist, J. - (1.) PLAINTIFF /respondent instituted SCC suit No. 01 of 2010 in the Court of Judge Small Cause Court, Tehri against the defendant/revisionist for recovery of arrears of rent, possession, damages, inter -alia on the ground that father of plaintiff/respondent had given the disputed shop on rent @ Rs. 1000/ - per month to the defendant/revisionist. Earlier, father of the plaintiff/respondent had filed SCC suit No. 01 of 2006 against the defendant/revisionist and defendant/revisionist had filed injunction suit No. 63 of 2005. A compromise was entered between the parties and defendant/revisionist had given/surrendered possession of the shop to the father of the plaintiff/respondent and consequently the SCC suit was withdrawn. Later on defendant/revisionist had obtained the possession of the shop through the process of the court and made structural changes. The defendant/revisionist filed his written statement denying the plaint assertions on the grounds that the pleadings regarding the co -ownership is silent and respondent/plaintiff had no locus standi since the disputed shop had been transferred to the sister of plaintiff.
(2.) THEREAFTER an application was filed by the defendant/revisionist under order 7 Rule 11 for the rejection of plaint. The plaintiff/respondent also moved an application for amendment in plaint. Both the applications were decided by a common order dated 17.11.2011 whereby plaintiff/respondent's application for amendment was allowed and defendant/revisionist's application for rejection of plaint was rejected. Hence, this revision. Learned counsel for the revisionist submitted that Judge Small Cause Court had failed to exercise the jurisdiction vested in it by law and had further exercised the jurisdiction not vested in it by law, by rejecting the application for rejection of plaint and by allowing the application of amendment of plaint. He argued that the Judge Small Cause Court failed to apply its judicious mind on the requirements and satisfaction of requirements of Order 7 Rule 11 of C.P.C., whose purpose is to check the frivolous and vexatious litigation. Application for plaint rejection was filed on the grounds that the plaint lacks cause of action, there is absence of landlord and tenant relationship and the previous SCC Suit of 1 of 1 of 2006 was unconditionally withdrawn by the father of the plaintiff, without permission to file a fresh. But Judge Small Cause Court had overlooked these aspects, while passing the order impugned.
(3.) LEARNED counsel for the respondent, in reply, submitted that the application under Order 7 Rule 11 filed by the defendant/revisionist is only for the purpose delaying the suit. He contended that it was specifically pleaded in the plaint that after the death of the father of the plaintiff, he became co -owner of the shop. Prior to filing of suit, respondent sent a notice to the revisionist on 03.06.2009, which was received by him but he did not reply the same and never deposited the rent since 2008. Application filed by revisionist under Order 7 Rule 11 filed by the revisionist/defendant is misconceived and has rightly been rejected.;


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