QAMAR AHMAD QURESHI Vs. ABDUL WAJID KHAN (RAJA)

JUDGEMENT

(1.) This civil revision has been filed under Sec. 115 of Civil Procedure Code against the order dated 30.03.2017 passed by Fourth Civil Judge Class II, Jabalpur in Civil Suit No.48-A/2017 whereby the learned Civil Judge Class II rejected the applicant's application filed under Order 7, Rule 11 of Civil Procedure Code that the suit is barred by law.

(2.) Brief facts of the case relevant to the disposal of this petition are that non-applicant/plaintiff filed Civil Suit No.48- A/2017 for eviction under Sections 12 (1)(a), (1)(c), (1)(e) of M.P. Accommodation Control Act and for arrears of rent and also for mesne profit averring that the The suit house was formerly owned by the ancestors of the plaintiff, and after partition it came in the share of his grandmother and after her death, the plaintiff is a co sharer of the suit house with others. Applicant/defendant is a tenant in the suit house. But the applicant did not pay the rent since the year 1999 and also denied the fact that non applicant is the owner of the suit house. The non-applicant requires suit house for his and his brother's residence.

(3.) During trial of the suit, applicant filed an application under Order 7, Rule 11 of Civil Procedure Code averring that the non-applicant has not filed any documents regarding ownership of the suit house. Earlier, the applicant/defendant had filed Civil Suit No.16A/2011 against grandparents of the non-applicant/ plaintiff which was decided by Vth Civil Judge Class II, Jabalpur by judgment dated 12.03.2012 in which learned Civil Judge held that ownership of the suit house rests with Abdul Kayum Khan, Son of Abdul Gaffar Khan. Against that judgment non-applicant/plaintiff's grandparents filed Civil Appeal No.18-A/2012, which was disposed of by the 10th Additional District Judge, Jabalpur vide judgment dated 07.02.2013 and he affirmed the judgment of Civil Judge, Class-II, so plaintiff's suit was barred by principles of res judicata. Non-applicant/plaintiff in his reply opposed the prayer. Learned Civil Judge rejected the applicant's application by order dated 30.03.2017 observing that whether or not the non-applicant/plaintiff was owner of the suit house is a matter of evidence and can be decided only after recording of evidence. So, the application is not maintainable at this stage. Being aggrieved from that order, applicant filed this petition.