MAQDOOM ALI MOHD Vs. DISTRICT COLLECTOR MAHABOOBNAGAR

JUDGEMENT

(1.) The order of the learned District Munsif, Mahaboobnagar in CFR. No. 5495 of 1997 dated 3-11-1997 is challenged. The learned District Munsif instead of registering the suit and issuing summons held that the suit was not maintainable for mandatory injunction. The order which is short reads as follows :

(2.) The order is cryptic and arbitrary. No provision is mentioned as to how the petitioner - plaintiff was to exhaust any remedy before the defendants before approaching the Civil Court. The order has amounted to rejection of the plaint. The circumstances under which a plaint can be rejected are to be read from clauses (a) to (d) of Order VII, Rule 11 of Code of Civil Procedure which read as follows : "11. The plaint shall be rejected in the following cases'a) where it does not disclose a cause of action;

(3.) None of the above clauses empowers the Court to reject the plaint on the ground that alternative remedy is not exhausted. If the defendants after issue of summons raise any contention as to the maintainability of the suit for any reason that will form the subject matter of issue under Order 14, Rule 1 CPC and can be a preliminary issue under Order 14, Rule 2 CPC when the maintainability of the suit can be questioned. In the absence of any specific provision in any law barring a suit for such relief of mandatory injunction, the presumption of jurisdiction of a Civil Court to try all suits of civil nature under Section 9 of C.P.C. cannot be taken to have been ousted. The learned District Munsif has committed a very serious error in law touching the question of jurisdiction and, therefore, this Court has to interfere with the impugned order under Section 115 C.P.C.