SADHNA HOTWANI Vs. RAJKUMAR MEHANI

JUDGEMENT

(1.) This civil revision has been filed by the defendants being aggrieved of order dtd. 19/03/2021 passed by the learned 5 th Civil Judge Class-I, Katni in RCS No.12B/2020 (Rajkumar Mehani and ors Vs. Anmol Refractories and Chemicals and ors), whereby an application under Order 7 Rule 11 of C.P.C filed on behalf of defendant no.3 to 5 has been rejected on the ground that the suit has been filed against commercial entities namely Anmol Refractories and Chemicals so also Rahul Industries, who are respectively defendant no.1 and 2 and not against a dead person. It is further held that it is a matter of evidence whether defendant no.3, 4 and 5 are partners/managers/proprietors of said firm or not.

(2.) Learned counsel for revision petitioner has placed reliance on the judgment of Supreme Court in case of Shabina Abraham and others Vs. Collector of Central Excise and Customs, (2015) 10 SCC 770, wherein it is held that notice for recovery of excise duty is maintainable only against a living person who is chargeable with excise duty. The definition of a "person" under the General Clauses Act, 1897 in Sec. 3(42), does not include legal representatives of persons who are since deceased, for the purpose of Excise Act. Similarly reliance is placed on a judgment of the Supreme Court in the case of Rajendra Bajoria & ors Vs. Hemant Kumar Jalan & ors, 2021 SCC Online SC 764, wherein it is held that while considering an application under Order 7 Rule 11 C.P.C court can also take into consideration not only the averments made in the plaint but also the averments made in the written statement because a clever drafting can create illusion of a cause of action, and a meaningful reading thereof would show that the pleadings are whether vexatious and meritless or not.

(3.) Learned counsel for the plaintiff/respondent on the other hand places reliance on judgment of Supreme Court in case of Liverpool and London S.P And Lasson. Ltd Vs. M.V. Sea Success I and another, (2004) 9 SCC 512 and placing reliance on paragraph 150 to 153, it is submitted that "in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the court has to find out whether those averments disclose a cause of action or a triable issue as such. The court cannot probe into the facts on the basis of the controversy raised in the counter."