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Judgment
U.C. Maheshwari, J.—Although this matter is listed today for admission and consideration of IA No. 3687/13, an application for grant of stay against further proceeding of the trial court but looking to the nature of the question involved in this petition, instead to hear the same on such question, with the consent of the parties the same is taken up for final disposal. Heard.
The petitioner/defendant No. 2 has filed this petition being aggrieved by the order dated 27.2.13 passed by 2nd Civil Judge, Class-II, Balaghat in COS No. 22-A/13, whereby hearing of his application (Ann. P. 2) filed under Order 7 Rule 11 of CPC for dismissal of the suit at the initial stage has been differed with the observation that after framing the issues on such question the same shall be considered and decided at the time of final hearing of the suit.
Petitioner''s counsel after taking me through the papers placed on record along with the impugned order argued that in view of the averments of the application (Ann. P. 2), the same ought to have been considered and decided by the trial Court on its own merit at the initial stage of the suit but under the wrong premises it''s hearing has been deferred. In continuation he said that hearing on such application of Order 7 Rule 11 of CPC could not be deferred till disposal of the suit because the same is filed to struck down the suit by stating to be unnecessary litigation and prayed to set aside the impugned order till the extent of the aforesaid application with a direction to the trial Court to hear and decide such application at the initial stage by admitting and allowing this petition.
On the other hand responding the aforesaid arguments the counsel of respondent No. 2 to 4 by justifying the impugned order said that same being based on proper appreciation of the available factual matrix, it does not require any interference at this stage. In continuation, he said that in the light of the pleading of the parties the issues have already been framed by the trial Court and the process for recording the evidence has already been started and in such premises the question raised by the petitioner could be decided very well after recording the evidence on appreciation of the same and there was no necessity to consider the aforesaid application at the initial stage of the suit and prayed for dismissal of the petition.
Having heard the counsel keeping in view their arguments, I have carefully perused the papers placed on record. It is apparent from the impugned order that aforesaid application of the petitioner filed under Order 7 Rule 11 of CPC has not been considered on merits by the trial Court and the hearing on the same has been deferred without mentioning any proper reason or any factual matrix of the matter with a direction that same shall be considered after framing the issues and recording the evidence at the final stage of the suit. Such approach of the trial Court is apparently contrary to settled proposition. The law is well settled on such question that the application of Order 7 Rule 11 of CPC could be filed at any stage of the suit, even before filing the written statement and on filing such application, it should be considered and adjudicated, even in the absence of the written statement. So in such premises, it is apparent that filing of written statement, framing the issues or recording the evidence are not the condition precedent to consider and decide such application filed under Order 7 Rule 11 of CPC. Therefore, instead to defer or postpone the hearing on such application till final hearing by the trial Court, the same should have been heard and decided on merits at the interlocutory stage.
Apart the aforesaid for the shake of argument if the impugned order till the extent of aforesaid application is examined then it is apparent that only in two and half line''s the hearing of such application has been deferred without assigning any proper reason, as such to defer such hearing no sufficient cause has been mentioned in the impugned order, the order has also not been passed in speaking manner. In such premises, it could be assumed that the same has been passed without proper application of mind by the trial Court.
In view of the aforesaid, the impugned order till the extent of aforesaid application being perverse and contrary to settled legal position is not sustainable. Consequently, till this extent the same deserves to be set aside. Hence, by allowing this petition the impugned order till the aforesaid extent is set aside and the trial Court is directed to hear and decide the impugned application under Order 7 Rule 11 of CPC on its own merits within thirty days from the date of filing the certified copy of this order. The petitioner counsel is also directed to submit the certified copy of this order before the trial Court within fifteen days from today. C.C. as per rules.