(1.) This Revision Petition has been preferred by Defendant No.10 Rajesh Kumar Agrawal under Section 115 of the Code of Civil Procedure, 1908 ((hereinafter referred to as the 'CPC') questioning the legality and propriety of the order dated 15.01.2018 passed by the Third Civil Judge Class-I, Raipur (C.G.) in Civil Suit No.15A/12, by which, the application filed under Order 7 Rule 11 (b) and (d) read with Section 151 of CPC has been rejected.
(2.) Briefly stated the facts of the case are that a suit for declaration and injunction has been made by the Plaintiff alleging inter alia that the shares in dispute described in plaint Schedule 'A', alloted to him in partition effected in 1965, were transferred to his step mother Smt. Indu Agrawal in 1982-84 as per the instructions of his father. According to the Plaintiff, his step mother expired on 20.05.1998 and the alleged shares were obtained by his father (Defendant No.1) based upon the Will executed by her on 05.07.1997. It is pleaded further in the plaint that despite the assurance given by his father to return those shares by executing an affidavit on 03.05.2005, it was not returned, therefore, he has been constrained to institute a suit on 26.04.2008 in the instant nature.
(3.) During pendency of the aforesaid suit, an application enumerated under Order 7 Rule 11(b) and (d) read with Section 151 of CPC has been made by Defendant No.10 alleging therein that the suit as instituted much beyond the period of 3 years after the death of his step mother and also from the date of initiation of proceedings by him under Section 372 of the Indian Succession Act, 1925 (hereinafter referred to as ' the Act, 1925') is not only barred by time but is under valued as well. The claim as made is, therefore, liable to be rejected. The said application has been contested by the Plaintiff and after considering the averments made in the plaint, it was rejected by the trial Court by observing inter alia that the question as raised by Defendant No.10 involves a mixed question of law and fact and could be determined only at the time of trial on the basis of evidence adduced by the parties. This is the order which has been impugned by way of this Revision Petition.