IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1226 of 2006 SHREE KSHETRESHWAR NATH MAHADE0JEE Versus RAJU PANJIAR & ORS ----------- 2 18.7.2008 Heard Counsel for the petitioner. The plaintiff petitioner is aggrieved by the impugned order dated 9.6.2006 rejecting his prayer for disposal of the miscellaneous case on a preliminary ground that after the death of the original defendant tenant, the tenancy was not inheritable and therefore the substitution being sought by the heirs of the defendant tenant could not have been gone into by the court below. The Counsel for the petitioner in this regard has referred to a judgment of the Apex Court in the case of Chitranjan Burman Vs. Om Prakash Bajoria & Ors. reported in 2001 (4) PLJR 167 (SC). In the opinion of this Court, first of all the aforesaid Supreme Court Judgment is not applicable to the facts of this case inasmuch as there is nothing on record to show that the original defendant tenant was a statutory tenant. That apart, if the Court below has taken a view in the impugned order that the question with regard to the maintainability of the miscellaneous case would be gone into at the time of the final hearing on the basis of the evidence, the 2 same cannot be held to be a jurisdictional error by this Court specially when the miscellaneous case seeks a prayer of restoration of a suit disposed by an ex-parte decree. This Court infact would not find any fault with the approach of the Court below specially when the scope of both order 7 Rule 11 and Order 14 Rule 2 of the Code of Civil Procedure is absolutely limited and cannot be expanded as sought to be projected by the petitioner. Here is a plain and simple case of seeking restoration of a suit which was decreed ex-parte against the original tenant and the successor of the tenant if they have filed miscellaneous case for setting aside that the ex-parte decree the same cannot be decided on a question of preliminary issue of its maintainability. Accordingly, this application being devoid of any merit is hereby dismissed. Rsh (Mihir Kumar Jha, J.)