- (1.) By means of this writ petition, the petitioner has challenged the order of the court below dated 19.1.2012 (Annexure-8 to the petition) by which the court below has proceeded to decide the application of the defendant filed under 0.7 R.11 CPC for rejection of the plaint. The claim of the petitioner is that he had filed a suit for mandatory injunction and injunction restraining the defendants from demolishing the house in question in which earlier the petitioner was a tenant. However, the release order was passed under section 21 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction), Act, 1972 upon an undertaking given by the defendant respondent No. 1 before the trial court which is quoted herein below : There was already an undertaking furnished by landlord on 10.05.1991 clearly and categorically mentioning that from the date of release of accommodation, minimum for ten years he would neither sell or gift nor mortgage and would stay in the premises in question. It was also categorically mentioned therein that court may impose any other condition which the court deems fit in the facts of the case, in respect of transfer. Both the courts below conveniently ignored the same by mentioned that said undertaking does not wipe out the intention and devoted much time on the fact that petitioner had been intending for the sale.
(2.) It is submitted that the aforesaid release order was passed on 17.9.2008 in writ petition No. 16652 of 1992. During the pendency of the suit, the petitioner filed an application for amendment to the effect that the defendant in the proceedings under section 21 of the above Act has misrepresented before the court and has also given a false undertaking that after the release order, he would use the property himself and for a period of 10 years he will not transfer the property to any other person. It is submitted that the said amendment was necessary due to the fact that the respondents themselves violated their own undertaking which necessitated the fling of the suit. It is, however, submitted that after the filing of the aforesaid amendment application 48Ga, the respondents filed an application under O. 7 R. 11 CPC for rejection of the plaint on the ground that the suit is not maintainable and the suit is also undervalued. The court below vide order impugned has held that the said application with regard to the maintainability of the suit would be decided first.
(3.) Learned counsel appearing for the petitioner plaintiff submits that the ingredient for invoking the provisions of 0.7 R.11 CPC are not present as it states that if the relief claimed is undervalued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so or where the suit appears from the statement in the plaint to be barred by any law including the other requirement. So far as the undervaluation of the suit is concerned, the same is a mixed question of fact and law and can be decided only after leading evidence. It is not clear from the reading of the application as to how the suit is not maintainable. It is relevant to note, as submitted by the learned counsel that in the suit even issues have not yet been framed. That being the case, it is always open for the defendant to plead after the issues are framed that the issue of jurisdiction be decided as preliminary issue.;