- (1.) Supplementary affidavit filed today is taken on record. The SCC suit was filed by the landlord in the year 2007 for arrears of rent and ejectment. Thereafter, the written statement was filed by the petitioner on 4.2.2008 and issues were framed by the trial court. The trial court framed Issue No. 5 as to whether the suit is barred by the Order 7 Rule 11 CPC or not. During the course of proceedings, the petitioner filed an application under Order 7 Rule 11 CPC stating therein that the suit should have been filed within three years after terminating the tenancy of the tenant and the suit of the landlord is time barred and therefore, the suit of the landlord is liable to be dismissed under Order 7 Rule 11 CPC. The landlord opposed the application of the petitioner by filing an application wherein it was stated that the issues were framed on 13.10.2009 and the application filed by the landlord is just to delay the proceedings of the suit. The trial court dismissed the application of the petitioner on the ground that Issue No. 5, as to whether the suit is maintainable or barred under Order 7 Rule 11 CPC, has already been framed. Being aggrieved and dissatisfied with the order dated 15.7.2010 passed by the JSSC/Civil Judge (Sr. Division) Etah, the petitioner preferred a SCC Revision No. Nil of 2010 which too was dismissed by order dated 1.9.2010 as notmaintainable. Hence, the present writ petition.
(2.) It is contended by the learned counsel for the petitioner that the averment contained in the plaint would indicate that the suit filed by the landlord is barred by Article 113 of the Indian Limitation Act inasmuch as per own plaint averment, cause of action for filing the suit arose on 25.9.2002 on the basis of notice dated 24.8.2002, as such, the proceedings having been initiated in the year 2007 are apparently beyond the statutory period of limitation of three years as prescribed under the Indian Limitation Act, as such, the plaint ought to have been rejected under Order 7 Rule 11 CPC. It is further contended by the learned counsel for the petitioner that the view taken by the trial court in declining to examine the objection of the petitioner under Order 7 Rule 11 CPC on the ground of necessary issue having been framed in the suit apparently amounts to failure in exercise of jurisdiction by the trail court inasmuch as Order 7 Rule 11 CPC cast statutory duty on the court concerned to examine as to whether the suit is barred under Order 7 Rule 11 CPC and as such, the objection so raised by the petitioner ought to have been examined by the trail court as a preliminary objection inasmuch as adjudication thereof required neither of the parties to lead any evidence.
(3.) I have heard the learned counsel for the petitioner and perused the record.;