MAHENDRA DAYAL, J. - (1.) THIS writ petition is directed against the order dated 18.11.2013 passed by the Ist Additional Judge Small Causes, Court 18, Lucknow in SCC No.11 of 2002 rejecting the application of the petitioner under Order VII Rule 11 C.P.C. and the judgment and order dated 26.04.2014 passed by the Additional District Judge (Special Judge C.B.I.), Court No.3, Lucknow, in Revision No.123 of 2013 dismissing the revision filed against the aforesaid order dated 18.11.2013.
(2.) THE facts, in brief, are that the opposite party no.1 filed a suit against the petitioner for his ejectment and decree for damages on the ground that the petitioner was a tenant in respect of a portion of Balda Quarter situate at No.2 Khas Bazar, Kaiserbagh, Lucknow on a monthly rent of Rs.200/ - and the petitioner had made material alteration and addition raising new construction in the tenanted portion without the consent and permission of the opposite party no.2, whereby the utility and value of the building has diminished. It was also pleaded by the opposite party no.1 that the petitioner has also demolished the portion of a building under tenancy without the permission of the opposite party no.1.
(3.) THE petitioner filed a written statement thereby admitting the fact of material alteration and addition but stated that whatever additions and alterations were made in the building, that were done with the permission and consent of the opposite party no.1. After filing of the written statement by the petitioner, the opposite party no.2 filed an application paper no.C -66 under Order XII Rule 11 CPC for rejection of the plaint on the ground that the opposite party no.1 has not disclosed the period as to when the said additions or alterations were made. The date of alleged material alteration has also not been disclosed in the statutory paragraph of cause of action, and thus, the plaint was defective for want of cause of action. This application was dismissed by the learned Trial Judge on the ground that in para -7 of the plaint, the cause of action has been disclosed and the fact with regard to the date and time of material alteration is a mixed question of fact and law which can be decided only after evidence of the parties.;