Civil Revision No.2313 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2313 of 2011(O&M) Date of Decision: April 6, 2011 Bahadur Singh .....Petitioner v. Daya Singh .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Harpal Singh Saggu, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.9412-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.2313 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for setting aside orders dated 2.2.2011, Annexures P7 and P8 passed by learned Civil Judge, Junior Division, Dhuri. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned orders passed by learned trial Court. It has been contended by learned counsel for the petitioner that impugned order Annexure P7 has been passed by learned trial Court without discussing the merits of application filed by respondent-defendant and the reply to the same filed by petitioner-plaintiff, merely on the ground that this Court has permitted the trial Court to treat the issue regarding maintainability of the suit as a preliminary issue. It is further contended that however, this Court vide impugned order, Annexure P4, has not made any such order and that only opportunity was granted to respondent to approach this Court in case his request for treating issue regarding maintainability as preliminary issue is not accepted by learned trial Court. Earlier an application under Order VII Rule 11 of the Code of Civil Procedure was filed by respondent-defendant for rejection of the plaint on the ground that suit filed by present petitioner-plaintiff was premature Civil Revision No.2313 of 2011(O&M) -2- and, however, the said application was dismissed by learned trial Court vide order, Annexure P3. Respondent-defendant filed revision petition before this Court, which was disposed of by passing the following order:- “ Learned counsel for the applicant-petitioner, at the very outset, has pointed out that he does not want to press the present petition and the same be dismissed as withdrawn with a liberty to file the fresh one after annexing all the relevant documents alongwith the petition. He further disclosed that he is pursuing the suit on the ground of maintainability. In case the issue of maintainability is not treated as preliminary issue by the trial Court, then he may be granted liberty to file a fresh petition. I order accordingly with aforesaid liberty.” There is force in the argument of learned counsel for the petitioner that vide order, Annexure P4, respondent-defendant was only permitted to withdraw the revision petition filed by him against order, Annexure P3, passed by learned trial Court dismissing application under Order VII Rule 11 of the Code and, however, liberty was granted to respondent-defendant to approach this Court again in case his plea for treating the issue regarding maintainability as preliminary was not accepted by learned trial Court. However, perusal of the impugned orders shows that issue regarding maintainability is treated as preliminary issue by learned trial Court without discussing merits of the said plea taken by respondent- defendant on the ground that this Court had directed to treat the issue regarding maintainability of the suit as preliminary issue. Hence, in view of these facts, the present revision petition is accepted. Impugned order is set aside. Learned trial Court is directed to decide the application filed by respondent-defendant for treating the issue regarding maintainability of suit as a preliminary issue afresh on merits by passing a speaking order. Disposed of accordingly. 6.4.2011 (Ram Chand Gupta) meenu Judge Civil Revision No.2313 of 2011(O&M) -3-