RUCHITA AGNIHOTRI Vs. ASHOK JAIN

JUDGEMENT

(1.) This petition has been filed by the petitioner/defendant No.1 Ruchita Agnihotri under Article 227 of the Constitution of India against the order dated 04.10.2018 passed by the Second Civil Judge, Class-II Rajnagar, Distt. Chattarpur in RCS No.11-A/18 whereby the petitioner's application filed under Order 7 Rule 11 of CPC has been rejected and the application filed by the plaintiff/respondent no.1 under Order 6 Rule 17 of CPC has been allowed.

(2.) In brief, the facts of the case are that respondent No.1/plaintiff has filed a civil suit for declaration of title and permanent injunction against the defendants which include the present petitioner. In the aforesaid suit, not only the pleadings are complete but the parties have also led their evidence. In the suit, at this stage, an application under Order 7 Rule 11 of CPC has been filed by the petitioner/defendant No.1 on the ground that the plaintiff/respondent No.1 has not averred the cause of action in the plaint and also that the matter relates to revenue Court, hence the Civil Court has no jurisdiction to proceed with the case. It is also mentioned in the aforesaid application that the suit has been filed on insufficient stamps and despite the fact that on 18.01.2018 the Court allowed the amendment application of the plaintiff and directed the plaintiff to amend para 18 of the plaint in which he has also asked for possession of the property, but despite such amendment application being allowed, the plaintiff has not paid the requisite court fees hence the suit is liable to be rejected under Order 7 Rule 11 of CPC. A reply to the aforesaid application has also been submitted by the plaintiff denying the same and additionally, an application under Order 6 Rule 17 of CPC has also been filed by the plaintiff/respondent No.1 stating therein that since he has also sought possession of the property, hence ad valorem court fees is also being paid and an amendment only to this effect was sought that the court fees for possession at ad valorem rate of Rs.100/- is being filed.

(3.) The learned Judge of the lower Court has decided both these applications viz. the application filed by the petitioner/defendant No.1 under Order 7 Rule 11 of CPC as also the application filed by the plaintiff/respondent No.1 under Order 6 Rule 17 of CPC simultaneously in the same order which is under challenge before this Court at the instance of the petitioner/defendant No.1, who has challenged the allowing of the application filed by the plaintiff under Order 6 Rule 17 of CPC as also the rejection of the application filed by the petitioner/defendant No.1 under Order 7 Rule 11 of CPC.