SMT. ATEEQUE ZEENATH Vs. AKHTER BEGUM AND OTHERS

JUDGEMENT

(1.) The petition filed under Sec. 115 C.P.C. against the order of the Civil Judge (Jr.Dn.) Shahapur in O.S. No. 280/99. The petitioner is the 5th defendant in the suit. The first respondent has filed a suit for partition. In the course of evidence, it appears that certain documents are elicited from the power of attorney of the plaintiff. Based on the said admission, it was contended that the suit of the plaintiff is liable to be dismissed. It appears that immediately after the examination of the witnesses concerned, an application is made for dismissal of the suit on the basis of admission. The Trial Court has dismissed the application. Being aggrieved, the present revision is filed.

(2.) On going through the impugned order and after hearing the counsel for the petitioner, I find that the course adopted by the petitioner in arguing the matter in the midst of the evidence is totally impermissible in law. It is virtually compelling the Court to prejudge the issue. In the scheme of Civil Procedure Code. The questions relating to the jurisdiction and maintainability can be urged under Order 7 Rule 11 Civil Procedure Code at the preliminary stage and the second stage is after formulation of issues and if any issue arises pertaining to question of law without reference to other disputed contention only the consideration of the issue relating to question of law could result in final adjudication of the suit or proceedings, it is permissible to argue on the issue relating to question of law. The third stage available to seek dismissal of the suit is at the stage of regular argument after conclusion of evidence. But in the midst of evidence on the basis of certain admissions or on any other material, it is impermissible to argue for a dismissal without concluding the formality of evidence. Such a course of action is neither prudent nor proper and it amounts to inviting the Court to prejudge the issues without fully recording the evidence. Besides, it entails the peril of disabling the presiding officer to proceed further in the matter when he once expresses the opinion on the inchoate material. In that view, the request of the petitioner is untenable to compel the Court to hear final argument only on the basis of the admissions obtained from the plaintiffs in the midst of evidence and without formally concluding the stage of evidence. Hence I find no merit in the petition. Accordingly, the petition is dismissed. . <span class='hidden-print'> ( <a href='Judgement.aspx?q=Indian Civil Cases]2003]1]&p=1&pos=124&qType=4'>Previous</a> <a href='Results.aspx?q=Indian Civil Cases]2003]1]&p=1&rsv=C&qType=4'>Hitlist</a> <a href='Judgement.aspx?q=Indian Civil Cases]2003]1]&p=1&pos=126&qType=4'>Next</a> ) </span>