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Judgment
Dev Darshan Sud, J.—The petitioner is aggrieved by the order passed by the learned trial Court rejecting his application under Order 7 Rule 11-A of the Code of Civil Procedure. Defendant No. 4 before the learned trial Court (the petitioner herein) had instituted the application on the averments that the plaint does not disclose any actionable cause of action against him and the road in question which was being constructed by the State.
The learned trial Court relying on a part of the pleadings in para 3 of the plaint that the petitioner had removed the stones through the Contractor of the Public Works Department, which has caused damages to the property of the plaintiff, rejected the application.
The plaint may not have been drafted setting out the complete facts. Nevertheless at this stage calling for rejection of the plaint on the ground that no cause of action is disclosed against the petitioner, would not be maintainable, since this has to be determined as a fact on the settled issues as there is some pleading in this case. In these circumstances, it will be open to the petitioner herein to (a) prove on settled issues that he was never involved in any act directly or indirectly which has caused damage to the property of the plaintiff or committed any act of omission or commission which is actionable; (b) pray for deletion of his name since no relief has been claimed against him. On both these points as urged by the petitioner herein, it is needless to add that the CPC provides sufficient protection to a party who has been dragged into litigation without any justifiable cause by imposing exemplary costs under the provisions of Section 35-A of the Code of Civil Procedure. In case the facts and circumstances so warrant, it will be open to the petitioner herein to claim such damages before the learned trial Court.