HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 4 Case :- WRIT - C No. - 36402 of 2011 Petitioner :- Smt. Kalpana Tiwari Respondent :- Mithlesh Chandra Tiwari Petitioner Counsel :- R. K. Pandey Hon'ble Rajes Kumar,J.
The petitioner is a defendant in the suit. The plaintiff filed a suit for the cancellation of the settlement deed. The petitioner moved an application under Order 7 Rule 11 C.P.C. that the suit is barred. The trial court has rejected the application on the ground that till the issue, namely, that the suit is barred under Section 331 (2-A) of the U.P. Zamindari Abolition & Land Reforms Act (hereinafter referred to as the "Act") is not decided , no order can be passed under Order 7 Rule 11 C.P.C. Against the said order, the petitioner filed revision. The revisional authority vide order dated 6.4.2011 dismissed the revision, however, observed that the suit is not barred under Section 331 of the Act.
Learned counsel for the petitioner submitted that when the trial court has not adjudicated the issue, namely, that whether the suit is barred under Section 331 of the Act and the said issue was not before the revisional authority, the observation of the revisional authority is patently illegal.
The matter requires consideration.
Issue notice to the respondent returnable at an early date. The petitioner may take steps to serve the respondent by registered post.
List in the week commencing 16.8.2011.
Till the next date of listing, the operation of the order dated 6.4.2011 passed by the Additional District Judge, Court No. 6, Ramabai Nagar in revision no. 108 of 2010 shall remain stayed.
Order Date :- 7.7.2011 OP