P.C.JAIN, J. - (1.) THIS a revision petition under Section 115 CPC filed by the defendant-petitioner feeling aggrieved by the order dated 1.5.1998 passed by the learned Civil Judge (Jr. Division), Bhilwara in civil original suit No. 185/93 by which the application of the petitioner-defendant filed under Order 7 Rule 11 CPC has been dismissed.
(2.) THE plaintiff-non-petitioner filed a suit against the defendant-petitioner with the allegations that he let out shop on 1.4.1985 to the defendant. The plaintiff-non-petitioner stated that he has got three sons. He has made a partition between his sons and the suit shop has come to the share of his son Padamchand. Padamchand has been residing at Ahmedabad but his family resides at Bhilwara. He also stated that he delivered possession of the suit shop to his son Padamchand. The plaintiff sought eviction of the petitioner-defendant on the ground of reasonable and bona fide necessity of his grandson Mahendra Kumar who is son of Padamchand. The defendant moved an application under Order 7 Rule 11 CPC and stated that since the plaintiff has divested himself of the right, title or interest in respect of the suit shop, he has got no right to file the present suit. Since eviction of the defendant has been sought on the ground of reasonable and bona fide necessity of Mahendra Kumar s/o Padamchand, the suit ought to have been filed by Padamchand or Mahendra Kumar. The plaintiff cannot carry on the present suit. The suit filed by the plaintiff is, therefore, not maintainable. The plaintiff-non-petitioner did not file any reply but stoutly contested the application filed by the petitioner. The learned trial court vide its order dated 1.5.1995 rejected the application of the petitioner on the ground that the suit shop has been let out to the defendant-petitioner but no physical possession has been handed over by the plaintiff to his son. Hence the cause of action subsists in favour of the plaintiff.
(3.) I have heard learned counsel for the petitioner and the learned counsel for the non-petitioner.;