KULAR MANI Vs. JANAK SINGH

JUDGEMENT

(1.) This appeal by the defendants is directed against the judgment and decree dated 31.7.2009, passed by learned first appellate Court, whereby, accepting appeal filed by respondents-plaintiffs, order passed on application under Order 7 rule 11 CPC, has been reversed and the matter has been remitted to the trial Court, with a direction to decide the suit on merits, including the points raised in the application under Order 7 Rule 11 CPC. Whether reporters of the local papers may be allowed to see the judgment?

(2.) Respondents-plaintiffs filed a suit for declaration that they are owners in possession of certain property, described in the plaint, which is situated in Rohru tehsil of Shimla, on the strength of a Will, executed by Smt. Reshmu, owner of the suit property, in favour of one of the respondents-plaintiffs. Defendants filed written statement, contesting the suit. They denied the execution of the Will by Reshmu, in favour of a predecessor of the respondents-plaintiffs. They also raised the plea that the suit was barred under Order 23 Rule 1 CPC, under Order 9 Rule 8 CPC and under Order 2 Rule 2 CPC.

(3.) Trial Court framed issues, based on the pleadings of the parties. Issue, pertaining to the plea of appellants-defendants that suit was barred under the aforesaid provisions of CPC, was separately framed. Parties were called upon to lead evidence. When the plaintiffs evidence had been recorded in part, an application under Order 7 rule 11 CPC was moved by the appellants-defendants, praying for rejecting the plaint, on account of suit being barred under Order 9 Rule 8 CPC, under Order 23 Rule 1 C CPC and under Order 2 Rule 2 CPC. Trial Court allowed that application, holding that the suit was barred under Order 9 Rule 8 CPC, and also under Order 23 Rule 1 CPC and rejected the plaint. Since the order rejecting the plaint is appealable as a decree, appeal was filed before the District Judge. Learned District Judge has accepted the appeal and remitted the case to the trial Court, as aforesaid. Reasons given by the learned first Appellate Court are, that while passing an order on application under Order 7 rule 11 CPC, Court has to take into consideration only the averments made in the plaint, and not those made in the written statement. In support of this reasoning, learned first appellate Court has placed reliance upon the judgment of the Supreme Court in Saleem Bhai and others v. State of Maharashtra and Others, (2003) 1 SCC 557.