WPMS/852/2023
2023 Latest Caselaw 1775 UK

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      Date                                       COURT'S OR JUDGES'S ORDERS
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                                  WPMS No. 852 of 2023
                                  Hon'ble Sharad Kumar Sharma, J.

Mr. Vinoda Nand Barthwal, Advocate, for the petitioner.

Mr. B.M. Pingal, Advocate, for the respondents.

The petitioner is a defendant in a Suit preferred under Section 38 of the Specific Relief Act, by the respondent/plaintiffs. In the suit, in question, a preliminary objection was raised by the defendant pertaining to the maintainability of the Suit. Since it pertains to a land as described in Sub- section (14) of Section 3 of the U.P. Z.A. & L.R. Act, he contended that the Suit preferred before the Civil Court would not lie because of bar of Section 331 of the U.P. Z.A. & L.R. Act.

The learned Trial Court, based upon the rival pleadings, had framed the issues. One of the issues, which was decided as a preliminary issue, was issue Nos. 4 and 5, whereby, the learned Trial Court vide its judgment dated 23rd September, 2022, while deciding the aforesaid issue about the maintainability of the Suit, i.e. issue No.5, has rejected the application preferred by the defendant/petitioner under Order 7 Rule 11 (d) of the CPC.

The said order deciding an issue under Order 7 Rule 11 is not appealable under Section 104 to be read with Order 43 of the CPC.

Appeal is a creation of a statute and it cannot be preferred under the whims and fancies of a litigant, even if a wrongful advice has been extended by the counsel. The appeal under Order 43 Rule 1 (a) of the CPC, is only contemplated as against the order passed under Order 7 Rule 10 of the CPC of returning of a plaint, the appeal would not lie.

Since that is not the case at hand, the Misc. Appeal preferred by the present petitioner, being Misc. Civil Appeal No. 11 of 2022, would not be maintainable as not contemplated under Section 104 to be read with Order 43 of the CPC. Once the Appeal itself was not maintainable, there is no question of scrutinization of an order which is even otherwise not legally sustainable as per the procedural law provided under the CPC.

Hence, the Writ Petition is dismissed with the liberty left open for the petitioner to resort to his appropriate remedy as against the order dated 23rd September, 2022, by preferring a Revision before the competent Court in accordance with the law.

(Sharad Kumar Sharma, J.) Dated 05.07.2023 Shiv