DEEN DAYAL Vs. RAM DUTT PUNETHA

JUDGEMENT

(1.) THIS appeal is preferred under Section 100 of Code of Civil Procedure, 1908, and is directed against the judgment and order dated 25.8.2000 passed by Sri A.K. Saxena, the then learned I Addl. District Judge, Nainital, in Civil Appeal No. 52 of 1999, and also against the order dated 10.4.2002 passed by Sri Raj Krishnal the then learned Addl. District Judge/II Fast Track Court, Nainital, whereby he has rejected the review petition against the order passed in appeal.

(2.) BRIEF facts of the case are that plaintiff -respondents filed earlier S.C.C. Suit No. 42 of -1989; - against the defendant -appellant, in last round of litigation alleging the defendant to be tenant of the plaintiffs. The said S.C.C. Suit appears to have been decreed by the learned Trial Court on 10.5.1993 but the defendant went in revision and the revision (No -. 41/ 1993) was allowed vide order dated 21.7.1997, and the decree passed by the Judge S.C.C. was set aside. Again, in this round of litigation, in respect of the same property i.e. house no. 104 in ward no. 4 (old No. 69 of ward no. 2) situated at Tanakpur, another suit (Civil Suit No. 44/1997) is filed by the plaintiff -respondents against the defendant -appellant for ejectment and damages, alleging the defendant to be un -authorized occupant in the premises in suit. It appears that defendant -appellant moved an application paper no. 20 -C before the trial court with the request to reject the plaint under Order VII Rule 11 of the Code of Civil Procedure 1908, to which the plaintiff -respondents filed objection, and after hearing the parties the learned trial court allowed the application 20 -C and rejected the plaint under Order VII Rule 11 of the Code vide its order dated 7:10.1999. The plaintiff -respondents then preferred an appeal before the Lower Appellate Court which was registered as Civil Appeal No. 52/1999, and after hearing the parties the same was allowed, and the order directing rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure was set aside vide impugned order dated 25.8.2000. It appears that a review . petition, which was registered as Misc. Case No. 7/2000, was filed before learned Lower Appellate Court. However after hearing the parties the same was also rejected vide order -dated 10.4.2002. Aggrieved by both the orders the present Second Appeal has been preferred by defendant.

(3.) I heard learned counsel for the parties and perused the record.