- (1.) BY way of the instant writ petition, the petitioner has beseeched to quash and set-aside the order dated 18th August, 2011, whereby the learned Additional District Judge, Khetri dismissed the application filed by the defendant-petitioner under Order 7 Rule 11 CPC.
(2.) HAVING heard the learned counsel for the petitioner it is noticed that the defendant-petitioner moved the application under Order 7 Rule 11 of CPC for dismissing the plaint, but the learned trial court dismissed the application observing that the objection with regard to court fee raised by the defendant-petitioner, could have been adjudicated only after the evidence being led by both the parties because it was a mixed question of fact as well as law. The Hon'ble Apex Court in plethora of cases has consistently held that the jurisdiction under Article 227 of the Constitution must be sparingly exercised to correct errors of jurisdiction and the like, but not to upset pure findings of fact. The Hon'ble Apex Court has also held that the High Court should not interfere with the order of the inferior court, unless the same is found to be perverse or not based on any material or it results in manifesting injustice. In Saleem Bhai and Others Versus State of Maharashtra and others reported in 2003 (1) SCC 557, the Hon'ble Apex Court has held with reference to Order VII Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. The crux of aforesaid judgment is that the disputed questions cannot be decided at the time of considering an application filed under Order VII Rule 11 of CPC. The learned trial court is found to have un-erringly dismissed the application filed by the defendant-petitioner under Order 7 Rule 11 of CPC. The impugned order is found to be perfectly just and proper. There does not seem to be any perversity in the impugned order nor is it found to be contrary to the provisions of law. In view thereof, this Court does not find any ground to interfere with the impugned order passed by the learned court below and the writ petition being devoid of any substance deserves to be dismissed.
(3.) FOR the reasons stated above, the writ petition fails and the same being bereft of any merit deserves to be dismissed, which stands dismissed. Consequent upon the dismissal of writ petition the stay application, filed therewith, does not survive and that also stands dismissed.;