DEVESH Vs. RATIBAI

JUDGEMENT

(1.) CHALLENGE in this petition under Section 115 of the Civil Procedure Code is made to an interlocutory order dated 5.10.2013 passed by the Additional Civil Judge Class II to the Court of First Civil Judge, Class II, Betul in Civil Suit No.184A/13, whereby an application filed under Order 7 Rule 11 CPC has been dismissed with liberty to the petitioner to raise the ground in the written statement and it is held by the Court that the objection shall beconsidered after framing of issues and recording of evidence, as the question of jurisdiction raised in the application under Order 7 Rule 11 is a mixed question of law and facts.

(2.) FACTS in brief goes to show that respondent plaintiff has filed the suit in question for restoration of possession and permanent injunction. The petitioner herein raised an objection under Order 7 Rule 11 and questioned the maintainability of the suit on the ground that the subject matter of the suit relates to certain revenue dispute, which has to be adjudicated in accordance to the provisions of Section 250 of Madhya Pradesh Land Revenue Code and therefore, the Civil Court has no jurisdiction. A prayer was accordingly made that in view of the provisions of Section 257 of M.P. Land Revenue Code as the suit was barred by time, the same be dismissed. Learned Court has considered the aforesaid aspect of the matter and it was found that looking to the nature of dispute involved between the parties, nature of relief claimed, the question as to whether the suit is barred by Section 257 M.P. Land Revenue Code is a disputed question, a mixed question of law and fact and cannot be adjudicated in a proceeding under Order 7 Rule 11 CPC. The Court has held that the petitioner may file the written statement raising the objection and at an appropriate stage after framing of issue, the application shall beconsidered. Living the question open and on the aforesaid ground the application under Order 7 Rule 11 CPC was rejected . Even though by placing reliance on a judgment of this Court and by contending that the suit is barred, petitioner has raised various grounds to say that the suit be dismissed but the fact remains that the Trial Court has exercised its discretion and jurisdiction, has only held that question involved in the matter is mixed question of law and postponed decision on objection to be decided after framing of issue and recording of evidence if required. In doing so, I am of the considered view that the learned Court below has not committed any error so illegal or erroneous warranting consideration in these proceeding under Section 115 of CPC. The provisions of Section 115 CPC gets attracted and this Court can exercise jurisdiction in the matter when the procedure followed by the Court and the order passed is found to be erroneous or illegal to such an extent that amount to arbitrary decision taken in contravention to settled principles of law as is a error illegal to such an extent that it is apparent from the face of the record. If the manner in which the order is passed and the reason given by learned Court for passing the order is analyzed it would been seen that the learned Court while exercising its discretion and finding the question involved to be a mixed question where factsare also to be taken note of has postponed its decision on the objection by granting liberty to the petitioner to raise the ground by filing written statement.

(3.) THE discretion exercised by the Court cannot be termed as erroneous, perverse, or illegal to such an extent where jurisdiction under Section 115 CPC is to be exercised in this matter at this stage.