Sheikh Azim vs Mohammad Aslam
2024 Latest Caselaw 12812 MP

Madhya Pradesh High Court

Sheikh Azim vs Mohammad Aslam on 7 May, 2024

Author: Anil Verma

Bench: Anil Verma

                                                            1
                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                 AT INDORE
                                                      BEFORE
                                          HON'BLE SHRI JUSTICE ANIL VERMA
                                                  ON THE 7 th OF MAY, 2024
                                              CIVIL REVISION No. 191 of 2024

                           BETWEEN:-
                           1.    SHEIKH AZIM S/O SHEIKH MUNSHI, AGED 72
                                 YEAR S, OCCUPATION: RETIRED DONGARGAON
                                 PANI KI TANKI KE PASS TEH. MHOW DISTRICT
                                 INDORE (MADHYA PRADESH)

                           2.    SHEIKH HAYAT S/O SHEIKH MUNSHI, AGED 62
                                 YEAR S , OCCUPATION: LABOR R/O H.NO. 1489
                                 SURKHI GALI DR. AMBEDKAR NAGAR MHOW
                                 DISTT. INDORE (MADHYA PRADESH)

                                                                                       .....PETITIONER
                           (SHRI MAJEED DARBARI ADVOCATE APPEARING ON BEHALF OF SHRI
                           AHMAD DARBARI ADVOCATE)

                           AND
                           1.    MOHAMMAD ASLAM S/O ABDUL MAZID, AGED 32
                                 YEARS, OCCUPATION: BUSINESS

                           2.    MOHAMMAD WASIM S/O ABDUL MAZID, AGED
                                 38 YEARS, OCCUPATION: BUSINESS BOTH R/O
                                 H.NO. 1585 AZAD MARG DR. AMBEDKAR NAGAR
                                 MHOW DISTT. INDORE (MADHYA PRADESH)

                                                                                     .....RESPONDENTS
                           (BY SHRI RISHI TIWARI ADVOCATE)

                                 This revision coming on for admission this day, th e court passed the
                           following:
                                                             ORDER

The petitioners have preferred this civil revision under section 115 of Code of Civil Procedure, 1908 (in short CPC) being aggrieved by the impugned order dated 13.12.2023 passed by 5th Civil Judge Senior Division Dr.

Ambedkar Nagar District Indore in CS No. 188/2022 whereby the application under Order 7 Rule 11 CPC filed by petitioners/defendants has been rejected.

2 Brief facts of the case are that respondents/plaintiffs had filed a civil suit before the trial court for ejectment of defendants from the premises on the ground under section 12(1)(a), 12(1)(c) and 12(1)(e) of MP Accommodation Control Act and for mesne profit. The petitioners/defendants preferred an application under Order 7 Rule 11 CPC. After hearing both the parties the trial court has dismissed the application by the impugned order. Being aggrieved by the same, petitioners have preferred this revision petition.

3 Counsel for petitioners submits that the impugned order passed by the

court below is against the law and facts. The trial court has committed grave error in dismissing the application. The trial court has ignored the factum of delivery of possession of the suit premises which has been mentioned in the registered sale deed. He has placed reliance upon judgment dated 9.7.2020 passed by Hon'ble Apex court in the matter of Dahiben Vs. Arvindbhai Kalyanji Bhanushali in civil appeal No. 9519/2019 and Liverpool and London SP & I Association Vs. M.V. SEA Success I and others reported in (2004) 9 SCC 512 Hence he prays that the impugned order be set-aside and the application under Order 7 Rule 11 CPC filed by petitioners be allowed.

4 Per contra learned counsel for respondents opposes the prayer by submitting that impugned order passed by the court below is just and proper and does not deserve for any interference.

5 Learned counsel for the parties heard at length and perused the documents filed by them.

6 The trial court has dismissed the application filed by petitioners under Order 7 Rule 11 CPC on the ground that the matter should be adjudicated on

the basis of pleading of the parties and objection should be decided on the basis of evidence given by both the parties on merit. Therefore, the short question that arises for consideration in the petition is whether an application under Order 7 Rule 11 CPC ought to to be decided on the allegation in the plaint.

7 The Hon'ble Apex court in case of G. Nagaraj and another Vs. B.P. Mruthujnayanna and others reported in 2023 SCC Online SC 1270 in para 9 has held as under:-

"9. We are of the view that merely because there were some inconsistent averments in the plaint, that was not sufficient to come to a conclusion that the cause of action was not disclosed in the plaint. The question was whether the plaint discloses cause of action. As observed earlier, the plaint does disclose cause of action. Whether the appellants will ultimately succeed or not is another matter.

8 The Hon'ble Apex court in case of H.S. Deekshit and another Vs. Metropoli Overseas Ltd. reported in 2022 SCC Online SC 2024 has held as under:-

"5. It is well settled that while considering an application under Order 7 Rule 11 of the Code, the averments in the plaint alone are to be examined and no other extraneous factor can be taken into consideration..."

9 It is well established principle that while deciding the application under

Order 7 Rule 11 CPC only plaint averments are to be considered. Thus any defense raised by petitioners cannot be considered at this stage. It is a case of the plaintiff that he has purchased the suit land through registered sale deed, what is the contents of sale deed and actual possession has been delivered as per averment of the sale deed, all these questions cannot be decided at this

stage.

10 On the basis of law laid down by the Hon'ble Apex court and the facts and circumstances of the case, this court is of the considered opinion that the impugned order passed by the trial court is just and proper and no illegality has been committed by the trial court while rejecting the application under Order 7 Rule 11 CPC.

11 Accordingly this civil revision fails and is hereby dismissed. The impugned order dated 13.12.2023 passed by 5th Civil Judge Senior Division Dr. Ambedkar Nagar District Indore in CS No. 188/2022 is hereby affirmed.

(ANIL VERMA) JUDGE BDJ