MINU CHIBBER Vs. S.S. CHIBBER

JUDGEMENT

(1.) THIS appeal under Section 10 of the Delhi High Court Act, 1966 impugns the order dated 15th March, 2013 (of the learned Single Judge of this Court exercising Ordinary Original Civil Jurisdiction in CS(OS) No. 2521/2010 filed by the respondent/plaintiff) of dismissal of IA No. 7092/2011 filed by the appellants/defendants under Order VII Rule 11 of the CPC.

(2.) NOTICE of the appeal was issued and vide ex parte ad -interim order dated 22nd April, 2013 which continues to be in force, the proceedings in the suit before the learned Single Judge were stayed. The respondent/plaintiff has filed a reply to the appeal. The counsels for the parties have been heard.

(3.) WE are afraid, the aforesaid contention is on a misreading of Shah Babulal Khimji (supra). The Supreme Court in the said judgment has rather held that where a Trial Court Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, for example, bar of jurisdiction, res judicata, a manifest defect in the suit, absence of notice under Section 80 and the like and these objections are decided by the Trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the Trial Judge rejecting the objections undoubtedly adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. It was thus held that such an order even though keeps the suit alive, decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a 'judgment' so as to be appealable to a larger Bench. To the same effect is the judgment of the Division Bench of this Court in Jyotika Kumar Vs. Anil Soni : 156 (2009) DLT 685 and SLP (CC) No. 10698/2009 whereagainst was dismissed in limine on 11th May, 2009. Insofar as the reliance on the order in Satna Cement Works (supra) is concerned, the same, rather than supporting the contention of the respondent/plaintiff, is also against the respondent/plaintiff. There is thus no merit in the objection of the respondent/plaintiff to the maintainability of the appeal.