Anshuman Singh, J. - (1.) This writ petition has been filed against the order dated 28.10.1986 passed by the 1st Additional District Judge, Dehradun allowing the revision of the landlords-respondents against an order passed by the Judge Small Causes Court dated 20.5.1986 rejecting the application of the plaintiff-respondents moved under Order XV Rule 5 C.P.C. Before the writ petition was admitted the respondents were directed to file counter affidavit. Counter affidavit has been filed on behalf of the respondents. With the consent of the parties and also under Chapter XXII Rule 5 the writ petition is being disposed of finally at the admission stage itself.
(2.) The facts are that the respondents-landlords No. 3 and 4 filed a suit for ejectment against the petitioner in the court of Judge Small Course Court on the ground of default. After recording the evidence of the defendants in part, an application was filed on behalf of the respondents-landlords under Order XV Rule 5. C.P.C. requesting the court to strike off the defence of the petitioner. The Judge Small Causes Court after hearing the parties come to the conclusion that the application filed by the respondents landlord was liable to be rejected. In the revision filed by the respondents landlords the revisional court directed the trial court to decide the application of the respondents-landlords as preliminary issue for striking off the defence of the petitioner under Order XV Rule 5 C.P.C.
(3.) I have heard Sri L.P. Naithani, learned counsel for the petitioner. The counsel for the petitioner urged that once the plaintiff-respondents led their evidence and closed the question of striking off defence as preliminary issue was wholly uncalled for and the revisional court committed an error in directing trial court to decide the question of striking off defence first before disposing of the suit on merit. After hearing the counsel for the parties I am of the view that the order passed by the revisional court suffers from error of law and is liable to be quashed. Since the plaintiff have already closed his evidence and three witnesses have been examining on behalf of the petitioner in my opinion it is not proper to decide the preliminary issue at this stage. I, therefore, quash the order dated 28.10.1986 passed by the 1st Addl. District Judge, Dehradun and direct the trial court to dispose of the suit finally on merits. The trial court while disposing of the suit on merit will also record finding on the question whether there has been compliance of Order XV Rule 5 C.P.C. The writ petition succeeds and is allowed, Parties shall bear their own costs. Petition allowed.;