LAXMAN SHARMA Vs. BALRUM SHARMA

JUDGEMENT

(1.) Aggrieved by order dated 14.06.2011 in Eviction Suit No. 112 of 1997, the present writ petition has been filed.

(2.) It is stated that initially the suit being Title Suit No. 170 of 1997 was filed by the respondent no. 1. The defendant (petitioner herein) is the full brother of the plaintiff. The plaintiff claimed that his father has executed giftdeed in his favour and thus, he became owner of the property in question. The Title Suit No. 170 of 1997 was converted into an eviction suit bearing Eviction Suit No. 112 of 1997. Subsequently, vide order dated 19.01.2001, the plaintiff was again permitted to convert the eviction suit into a title suit however, the plaintiff did not take any step in the matter for correction in the cause title and amendment in the plaint. The defendant (petitioner herein) has also preferred Title Suit No. 94 of 1999 and he preferred an application for analogous hearing of both suits which was dismissed by the Trial Court vide order dated 15.09.2005. The petitioner approached this Court in W.P.(C) No. 6239 of 2005 which was dismissed on the ground that both suits are different in nature and therefore, cannot be heard together. The petitioner again moved an application for examination of the signature of his father on the alleged giftdeed and the said application was also dismissed by the Trial Court against which the petitioner came to this Court by filing W.P.(C) No. 1547 of 2009. The said writ petition was dismissed vide order dated 17.08.2010 taking note of order dated 17.02.2006 in W.P.(C) No. 6239 of 2005 however, it was ordered that both the suits would be tried one after another.

(3.) The learned counsel for the petitioner submits that in the aforesaid facts, the petitioner preferred application dated 18.12.2010 for dismissal of Eviction Suit No. 112 of 1997 however, the said application has erroneously been dismissed vide order dated 14.06.2011. It is submitted that the Trial Court in the impugned order dated 14.06.2011 recorded a finding that no material establishing landlordtenant relationship has been brought on record and once such finding has been recorded by the Court itself, in exercise of power under Section 151 CPC, the Trial Court was under a duty to dismiss the suit. Relying on a judgement in "Temple of Thakur Shri Mathuradassji, Chhota Bhanda Vs. Kanhaiyalal & Others, 2008 AIR(NOC) 1259 , the learned counsel for the petitioner submits that even though application dated 18.12.2010 was filed under Section 151 CPC, the Court has power to pass order dismissing the suit.