KISHORI LAL Vs. VIJAY KUMAR SOOD AND ANOTHER

JUDGEMENT

(1.) By way of this petition filed under Article 227 of the Constitution of India, petitioner has challenged order dated 08.05.2019 passed by the Court of learned District Judge, Shimla, vide which an application filed by the present petitioner under Order 7, Rule 11(d) of the Code of Civil Procedure for rejection of plaint, has been dismissed.

(2.) Brief facts necessary for the adjudication of the present petition are that respondents/plaintiffs have filed a suit for possession against the petitioner/defendant with respect to the portion of a shop, measuring about 5x7 feet, in shop No. 93, The Mall Shimla, built upon land comprised in Khasra No. 627, Bazaar Ward, Bada Shimla, as also for recovery of use and occupation charges. A decree for recovery of 1.00 Lac alongwith pendilite and future interest has also been prayed for.

(3.) Petitioner filed an application under Order 7, Rule 11(d) of the Code of Civil Procedure for rejection of plaint being barred by law inter alia on the ground that petitioner was mentally infirm and was undergoing treatment in the Department of Psychiatry, IGMC, Shimla, yet, plaintiffs sued him in his independent capacity, without instituting the suit through next friend of the petitioner/defendant. According to the petitioner, even the service in the suit was not properly effected upon him. Same was effected on some family member of the petitioner. Appearance was put through attorney of defendant by filing memo of appearance and thereafter, power of attorney was also filed through one Power of Attorney holder of the petitioner. Even before the filing of the suit, a notice was issued by the plaintiff on false and flimsy grounds to the petitioner which was replied by the attorney of the petitioner and the fact of mental infirmity of the petitioner was brought to the notice of the plaintiffs, yet, plaintiffs chose to file a suit against a mentally infirm person, which was barred in law. On these grounds, petitioner prayed that plaint be rejected under Order 7, Rule 11(d) of the Code of Civil Procedure.