LAWS(HPH)-2019-10-64

KIMTU DEVI Vs. STATE OF HIMACHAL PRADESH

Decided On October 15, 2019
Kimtu Devi Appellant
V/S
STATE OF HIMACHAL PRADESH Respondents

JUDGEMENT

(1.) This appeal is directed against the order passed by learned Single Judge in OMP No. 120 of 2019 (COMS No. 34 of 2018). The challenge to the impugned order is on the grounds, inter-alia, that since the defence of the defendants (respondents herein) in the main suit stand struck off, therefore, the application under Order 7 Rule 11 CPC was not maintainable. Also that the impugned order could have not been passed by learned Single Judge without deciding the application registered as OMP No. 121 of 2019 filed under Order 8 Rule 10 CPC by the appellant-plaintiff with a prayer to close the defence of the respondents-defendants as they failed to file the written statement within the stipulated period. As per the provisions contained under Order 14 Rule 1 CPC the issues could have not been framed in the absence of pleadings.

(2.) On hearing Mr. S.S. Mittal, Sr. Advocate assisted by Mr. Ajay Kumar Dhiman, Advocate and learned Senior Additional Advocate General and also going through the impugned ordr, we find that the issues have not been framed in the main suit and rather in the application registered as OMP No. 113 of 2019 filed by respondent No. 2 under Order 7 Rule 11 CPC for rejection of the plaint. The appellant-plaintiff has admittedly fled reply thereto. Therefore, it is on the basis of the pleadings of the parties, the issues have been framed in the application OMP No. 113 of 2019 vide order under challenge in this appeal. The appellant-plaintiff has confused herself while submitting that issues have been framed in the main suit without there being the written statement filed by the respondents-defendants.

(3.) We are also not satisfied with the submission that without deciding the application OMP No.121 of 2019 filed by the appellant-plaintiff under Order 8 Rule 10 CPC, the order under challenge could have not been passed for the reason that the prayer in the said application has been made to struck off the defence of the respondents-in the main suit. Otherwise also, the order under challenge not decides the application under Order 7 Rule 11 CPC finally which as as matter of fact will stand disposed of finally after taking on record the evidence of the parties and affording to them the opportunity of being heard. In this view of the matter also, the present appeal filed under Clause 10 of Letters Patent is not maintainable.