Bhuvan S/O Balraj Kumar vs Vijay S/O Rudaji @ Sadaji Kawle
2017 Latest Caselaw 9398 Bom

                                                    1          J-CRA-ST-13728-17.odt

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                       NAGPUR BENCH, NAGPUR

         CIVIL REVISION APPLICATION (CRA) ST.NO.13728/2017

 Mr.Bhuvan s/o Balraj Kumar,
 Aged about : 30 years, 
 Occ : Business, R/o Block No.1,
 K.A.P.S. Residency, 
 Fago Layout, Gittikihadan,
 Gorewada Road, Nagpur-440013.                               ..... PETITIONER
                                                             (ORI.DEFENDANT)
                               ...V E R S U S...

 Vijay s/o Rudaji @ Sadaji Kawle,
 Aged about : 42 years,
 Occ : Business, R/o Dwivedi Colony,
 Residential Diary Compound,
 Borgaon Road, Gittikhadan,
 Nagpur - 440013.                                            ... RESPONDENT
                                                              (ORI.PLAINTIFF)
 -------------------------------------------------------------------------------------------
 Shri B. B. Kumar, Advocate for the petitioner.
 Shri A. P. Fuley, Advocate for the respondent.
 -------------------------------------------------------------------------------------------

                                CORAM:-    
                                            ARUN D. UPADHYE, J.

DATED :

07/12/2017.

ORAL JUDGMENT : (PER ARUN D. UPADHYE, J.)

1. By this application, the applicant prays to quash and set

aside the order dated 10/02/2017 below Exh.12 passed by the Joint

Civil Judge, Junior Division, Nagpur in RCS No.1448/2015.

2. I have heard both the sides at length. Shri B.B.Kumar,

learned counsel for the applicant and Shri A.P.Fuley, learned counsel

for the respondent.

2 J-CRA-ST-13728-17.odt

3. The learned counsel for the petitioner/applicant has

submitted that the suit filed by the plaintiff itself is not maintainable.

The application filed by the defendant under Order VII Rule 11 (a), (b)

and (d) of the C.P.C. was partly allowed and directed the plaintiff to

make valuation of the suit afresh, on the basis of market valuation,

however, the claim of maintainability of the suit was refused. He also

submitted that the suit is not maintainable, as per the provisions of

Section 8-A (1) of The Administration of Evacuee Property Act, 1950.

He, therefore, submitted that the application filed under Order 7 Rule

11 of the C.P.C., therefore, be allowed by setting aside the impugned

order passed by the Joint Civil Judge, Junior Division, Nagpur.

4. Shri Fuley, learned counsel for the respondent,

however, submitted that the Trial Court has rightly passed the

impugned order. Therefore, the Civil Revision Application be dismissed.

5. Considering the submission of respective sides and on

going through the impugned order and the documents placed on

record, it appears that the learned Trial Court has rightly turned down

the claim of the defendant on the point of tenability of the suit and

observed that the plaint cannot be straightway rejected only on the

ground of procedural aspect and without giving an opportunity to the

3 J-CRA-ST-13728-17.odt

plaintiff to make correction in the same. Therefore, the plaintiff was

directed to make valuation of the suit afresh, on the basis of market

valuation. As regards the tenability is concerned, the averments made in

the plaint would disclose that he has claimed the relief of ownership on

the basis of Gift allegedly made by the father of defendant long back. If

that is so, the defendant may contest the suit by filing the suit in the

matter and therefore, the plaint cannot be rejected, as claimed by the

defendant.

6. No interference of this Court is called for in the

impugned order.

7. The C.R.A. St.No.13728/2017 is devoid of any merit

and accordingly rejected.

JUDGE

Choulwar