Surjit Singh vs Ranju Jasrotia And Others

Sindhu Sharma, J

Applicant has filed this application seeking recalling of order dated 02.03.2018 passed in Civil Revision No. 21/2017 titled "Ranju Jasrotia and another v. Surjit Singh and others" to the extent "with a direction to the trial court to dispose off preliminary Issue no. 7 in accordance with law by a speaking order."

Plaintiff, Surjit Singh, filed a suit for declaration and grant of injunction in the court of Sub-Judge, Jammu. The trial court vide order dated 23.12.2010 joined the parties to issues out of which issue Nos. 6 & 7 were directed to be treated as preliminary issues, which read as under:

"Issue No. 6 : Whether the suit is barred under Order 7 Rule 11 CPC and is liable to be dismissed?

OPD 1

Issue No. 7 : Whether the suit in the present form is not maintainable and is liable to be dismissed? OPD 1

The trial court vide order dated 05.04.2011 decided issue No. 6 against the plaintiff and in favour of the defendants and rejected the plaint under Order 7 Rule 11 CPC. Issue No. 7 was also decided against the plaintiff as required under Section 168 of the Jammu and Kashmir Co-operative Societies Act.

Plaintiff challenged the dismissal of suit before the District Judge, Jammu, who vide his judgment dated 01.06.2012 allowed the appeal and set aside the judgment and decree dated 05.04.2011 passed by the Sub-Judge, Jammu. The operative portion of the judgment rendered by the Principal District Judge, Jammu reads as under:

"For the reasons discussed hereinabove, I am satisfied that the order drawn by the trial court suffers from illegality and cannot be sustained, requires interference. The appeal of the appellant is hereby allowed and the order drawn by the trial court is hereby set aside. Record of the trial court be sent back forthwith. Parties are directed to cause their appearance before the trial court on 08.06.2012."

Soon after this, defendant No.4, Ranju Jasrotia, appeared to have filed an application under Order 7 Rule 11 CPC for dismissal of the suit on the plea that it was barred by law and plaintiff has no cause of action. This application was rejected by the Sub-Judge vide order dated 02.08.2017.

This Court dismissed the revision petition vide order dated 02.03.2018 against order dated 02.08.2017 holding that,

"Therefore, the trial Court has rightly held that the plaint cannot be rejected in exercise of powers under Order 7 Rule 11 CPC as the aforesaid plaint discloses cause of action. The issue with regard to the locus of respondent No. 1-plaintiff is covered by issue No. 7 which has already been framed as preliminary issue vide order dated 23.12.2010."

In para 12 of the judgment, the court directed as under:

"In the fact situation of the case, this revision petition is disposed of with a direction to the trial court to dispose of preliminary issue No. 7 in accordance with law by a speaking order."

The petitioner seeks recalling of this order on the ground pleaded in para 13 of the application, which reads as under:

"13. That the order passed by learned District Judge Jammu on 1.06.2012 deciding issue Nos. 6 & 7 in favour of the petitioner attained finality, as such, the direction passed in revision No. 21/2017 dated 03.03.2018 directing the trial court to dispose off preliminary issue No. 7 in accordance with law by a speaking order which requires to be recalled, because District Judge Jammu vide order dated 01.06.2012 has already decided controversy."

However, that the District Judge allowed the appeal and set aside the order of trial court dated 05.04.2011 in its entirety. So it is not correct to say that findings of the trial court in Issue No. 7 has not been reversed as the revision was only against the order dated 02.08.2017 passed by the trial court in which application is filed under Order 7 Rule 11 CPC.

In view of the above, the application for recalling the direction is not maintainable. Moreover the order impugned is dated 02.03.2018 and this application was filed on 26.12.2018, which means is an attempt to overcome the limitation for filing the review petition, which is not permissible under law. Hence, no case is made out and application for recalling the order is not maintainable.

Disposed of accordingly.