RAM KUMAR AGARWAL Vs. DISTRICT JUDGE MAINPURI

JUDGEMENT

(1.) The opposite party No. 3 filed a suit for declaration that he is the owner of the disputed bus and for Injunction restraining the defendant-petitioner from interfering with the possession of the plaintiff in respect of the bus and the permit. The said suit was registered as Suit No. 1 of 1999 in the Court of Civil Judge, Senior Division, Mainpurt. In the said suit, an application was filed by the defendant-petitioner raising an objection as to the maintainability of the suit on account of its bar under Section 94 of the Motor Vehicles Act, 1988 by means of application No. 27C. Admittedly no written statement was filed by the dependent-petitioner. The said application 27C was disposed of by the learned Civil Judge, Senior Division. Mainpuri, by an order dated 27th April, 1999 holding that the suit is barred under Section 94 of the Motor Vehicles Act and is outside the jurisdiction of the civil court and, therefore, the plaint be returned. Against this order Misc. Civil Appeal No. 24 of 1999 has since been filed by the plaintiff. The learned District Judge, Mainpuri. by an order dated 18th May, 1999 allowed the said Appeal and set aside the order passed by the learned Civil Judge, Senior Division, Mainpuri, holding that the suit for declaration of title to the disputed bus and for injunction to restrain the defendant-petitioner from Interfering with her possession over the disputed bus is triable by the civil court.

(2.) It is this order dated 18th May, 1999 which has been assailed by Mr. H. M. Srivastava learned counsel for the petitioner. Mr. Srivastava contends that the order passed by the learned Civil Judge was not an order under Order VII, Rule 10 of the Code of Civil Procedure and as such, it cannot be appealable under Order XLIII, Rule 1 (a) of the Code of Civil Procedure. According to him, the said order does not specify the test laid down in Order VII, Rule 10 whereas from the text of the order, it appears to be an order under Order VII, Rule 11 (d) which is not appealable under Order XLIII and, therefore, this Misc. Appeal is not maintainable. According to him, an order passed under Order VII, Rule 11 (d) is a decree within the meaning of the definition of decree contained under Section 2 (2) and as such, a regular appeal will lie. On that ground also the Misc. Appeal could not be maintainable. He further contends that even on merits, the order of the learned District Judge cannot be sustained since the jurisdiction of the civil court is barred under Section 94 of the Motor Vehicles Act and as such the suit cannot be maintained before the civil court.

(3.) I have heard Mr. H. M. Srivastava, learned counsel for the petitioner at length.