Vineet Kothari - (1.) BY the impugned order dt.19.1.2012 passed by the learned Additional Dist. Judge, Sri Karanpuar in Civil Original Suit No. 26/2010 whereby the learned Trial court has rejected the application filed by the petitioner defendant under Order 7 Rule 11 C.P.C. The learned counsel for the defendant - petitioner submitted that since the plaint itself was filed on the premise that the defendant was not a tenant, but an encroachee over the suit premises, therefore, the suit could have been filed only for possession with the appropriate court fee and not eviction suit and, therefore, the learned trial Court has erred in rejecting the application under Order 7 Rule 11 C.P.C.
(2.) THE learned Court below in the impugned order has given reason that since written statement has been filed and issue with regard to nature of suit as eviction suit and court fee has been framed and would be decided after evidence are led by the parties. Having heard the learnd counsel, this Court is of the opinion that there is no error in the impugned order and the defence of the defendant cannot amount to rejection of suit at this stage under Order 7 Rule 11 C.P.C. Whether the suit is eviction suit or not and what is the court fee payable on the same are the issues which are to be decided by the learned trial Court after the evidence are led by the parties and if the Court considers it appropriate as preliminary issues. Therefore, there is no force in the present revision petition and the same is accordingly dismissed. No order as to costs. A copy of this order may be sent to the opposite party and the learned trial Court forthwith.;