SKIPPER Vs. ATMA RAM PROPERTIES PRIVATE LIMITED

JUDGEMENT

(1.) "The defendant in this petition filed under Art.227 of the Constitution of India has questioned the order passed on 28.4.1994 by Shri Vinay Kumar Khanna, Sub Judge, Delhi in an application under Or.7R.11 of the Code of Civil Procedure.S

(2.) The facts in brief are that a suit was filed by the plaintiff-respondent for possession and mesne profits against the defendant-petitioner. After the defendant was served, without filing any written statement, an application under Order 7 Rule 11 of the Code of Civil Procedure was made seeking rejection of the plaint on the ground that proper Court fee has not been affixed on the plaint, therefore, plaint is liable to be rejected. It was alleged that it was a suit for possession treating the defendant to be in unauthorised and illegal possession as a trespasser. The suit ought to have been valued for the purposes of Court-fee at the market value of the property, which was about Rs. 2 crores. Plaintiff, however, had valued the suit for purposes of Court-fee at one year's rental value at the rate of Rs-327.11 p.m. This application was strongly opposed by the plaintiff and on 28.4.1994 the following order came to be passed, which is under challenge: "Defendant has filed the application under Order 7 Rule 11. Heard. Counsel for the Defendant has submitted that the suit is not maintainable and the Counsel for the plaintiff wants to file the reply. The application under Order 7 Rule 11 be taken as written statement. After hearing the following issue arise: Whether the suit is properly .valued for the purpose of Court-fee and jurisdiction? OP Parties. Now to come up for argument on 10.5.94."

(3.) The ground for challenging the order is that the Court erred in treating the application filed under Order 7 Rule 11 to be a written statement. It was not permissible for the Court to have treated the application as a written statement. It is contended that the impugned order, if allowed, to stand will result in depriving the petitioner a chance for filing written statement. Learned Counsel for the plaintiff-respondent has contended that defendant's act in filing the application without filing written statement is a dilatory tactic merely to further delay the proceedings. It ought to have been rejected as not maintainable or in any case issue ought not to have been framed by the Trial Court. In any case the application ought to have been decided on the averments made in the plaint alone.