ishwar Singh and Another Vs. Rakesh Saini and Others

ishwar Singh and Another vs Rakesh Saini and Others

Type Court Judgment Court Rajasthan Decided Jul 27, 2011

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https://sooperkanoon.com/case/920635

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Citation: sooperkanoon.com/920635
Court: Rajasthan High Court
Judge: Mahesh Bhagwati, J.
Decided On: Jul 27, 2011
Case Number: S.B. Civil Misc. stay Application No. 5529 of 2011
Subject: Civil

Case Summary

AI-generated summary - not the official court judgment text.

Civil

Key legal issue: Civil
Acts & sections: Code of Civil Procedure (CPC) , - Order 7 Rule 11; Constitution of India - Article 227

Parties & Advocates

Appellant / Petitioner

ishwar Singh and Another

Advocate Mr. Rahul Tiwari, Adv

Respondent

Rakesh Saini and Others

Legal References

Acts: Code of Civil Procedure (CPC) , - Order 7 Rule 11; Constitution of India - Article 227

Excerpt

.....plaint. 3. the hon'ble apex court in plethora of cases has consistently held that the jurisdiction under article 227 of the constitution must be sparingly exercised to correct errors of jurisdiction and the like, but not to upset pure findings of fact. the hon'ble apex court has also held that the high court should not interfere with the order of the inferior court, unless the same is found to be perverse or not based on any material or it results in manifesting injustice. 4. in saleem bhai and others versus state of maharashtra and others reported in 2003 (1) scc 557, the hon'ble apex court has held with reference to order vii rule 11 of the code that “the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. the trial court can exercise the power at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. for the purposes of deciding an application under clauses (a) and (d) of order vii rule 11 of the code, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.” 5. the crux of aforesaid judgment is that the disputed questions cannot be decided at the time of considering an application filed under order vii rule 11 of cpc. the learned trial court is found to have un-erringly dismissed the application filed by the defendant-petitioners under order 7 rule 11 of cpc . 6. the impugned order is found to be perfectly just and proper. there does not seem to be any perversity in the impugned order nor is it found to be contrary to the provisions of law. in view thereof, this court does not find any ground to interfere with the impugned order passed by the learned court below and the writ petition being devoid of any substance deserves to be dismissed. 7. for the reasons stated above, the writ petition fails and the same being.....

Full Judgment

1. By way of the instant writ petition, the petitioners have beseeched to quash and set-aside the order dated 18th March, 2011, whereby the learned Civil Judge (Junior Division) Kishangarh Bass, District Alwar dismissed the application filed by the defendants-petitioners under Order 7 Rule 11 CPC.

2. Having heard the learned counsel for the petitioners it is noticed that the defendants-petitioners moved the application under Order 7 Rule 11 of CPC for dismissing the plaint, but the learned trial dismissed the application observing that the plaint could be dismissing only on the basis of averments made in the plaint.

3. The Hon'ble Apex Court in plethora of cases has consistently held that the jurisdiction under Article 227 of the Constitution must be sparingly exercised to correct errors of jurisdiction and the like, but not to upset pure findings of fact. The Hon'ble Apex Court has also held that the High Court should not interfere with the order of the inferior court, unless the same is found to be perverse or not based on any material or it results in manifesting injustice.

4. In Saleem Bhai and Others Versus State of Maharashtra and others reported in 2003 (1) SCC 557, the Hon'ble Apex Court has held with reference to Order VII Rule 11 of the Code that “the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.”

5. The crux of aforesaid judgment is that the disputed questions cannot be decided at the time of considering an application filed under Order VII Rule 11 of CPC. The learned trial court is found to have un-erringly dismissed the application filed by the defendant-petitioners under Order 7 Rule 11 of CPC .

6. The impugned order is found to be perfectly just and proper. There does not seem to be any perversity in the impugned order nor is it found to be contrary to the provisions of law. In view thereof, this Court does not find any ground to interfere with the impugned order passed by the learned court below and the writ petition being devoid of any substance deserves to be dismissed.

7. For the reasons stated above, the writ petition fails and the same being bereft of any merit deserves to be dismissed, which stands dismissed.

8. Consequent upon the dismissal of writ petition the stay application, filed therewith, does not survive and that also stands dismissed.

Same Court & Year Rajasthan · 2011 Same Parties ishwar Singh and Another vs Rakesh Saini and Others Same Subject Civil Same Judge Mahesh Bhagwati, J. Acts & Sections Code of Civil Procedure (CPC) , - Order 7 Rule 11; Constituti...