RAJEEV MISHRA Vs. SANJAY SRIVASTAVA

JUDGEMENT

(1.) Heard Sri Shailendra, learned Counsel for the petitioner and Sri Ramendra Asthana, learned Counsel for the respondent No. 1. The respondent Nos. 2 and 3 are pro forma parties and the petitioner in essence claims himself to be a transferee of the property from them. Hence it is not necessary to issue notice to the said respondents.

(2.) The contention is that the petitioner is the defendant in the suit and a preliminary objection was raised through an application under Order VII, Rule 11 of the Code of Civil Procedure that the suit itself was not maintainable and the plaint itself deserves to be rejected outright under Order II, Rule 2 of the Code of Civil Procedure read with the provisions of section 70 and section 111 of the U.P. Co-operative Societies Act, 1965. It is further submitted that these facts with regard to the filing of earlier suits have been deliberately concealed in the plaint of the suit giving rise to the present proceedings, therefore the said fact should have been taken into consideration for drawing an adverse inference against the respondent No. 1 but the Courts below have given an opinion otherwise.

(3.) Sri Shailendra, learned Counsel for the petitioner submits that the approach of the Courts below is erroneous in law, inasmuch as, this preliminary issue of the maintainability of the suit had to be decided keeping in view the nature of the allegations made in the plaint coupled with such facts which had not been stated in the plaint but have been brought on record in the written statement.