SBC REVISION PETITION NO.164/2008 – GRAM PANCHAYAT GHATOL V/S SMT. NIRMALA DEVI . - ORDER DTD.20.11.2008 1/3 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL REVISION PETITION NO.164/2008 Gram Panchayat Ghatol versus Smt. Nirmala Devi. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.P. Nayak , for the petitioner. Mr. P.R. Mehta, for the respondent. DATE OF ORDER : 20th November, 2008. O R D E R 1. Heard the learned counsels for the parties. 2. This revision petition is directed against the order dated 15.5.2008 whereby the learned trial Court rejected the application of the defendant – petitioner under Order 7 Rule 11 C.P.C. The SBC REVISION PETITION NO.164/2008 – GRAM PANCHAYAT GHATOL V/S SMT. NIRMALA DEVI . - ORDER DTD.20.11.2008 2/3 defendant – Gram Panchayat had filed this application under Order 7 Rule 11 C.P.C. on the ground that the plaintiff – respondent before filing the said suit did not serve mandatory prior notice in accordance with Section 109 of the Rajasthan Panchayati Raj Act,. 1994 which says that no civil suit shall be instituted against the Panchayat Samiti unless an advance notice of two months is given to the Panchayat Samiti. 3. The learned trial Court by the impugned order has merely observed that the said application was filed after two dates were given after the defendant's counsel filed his Vakalatnama on 29.2.2008 and since it was filed on third date of hearing, therefore, the said application cannot be entertained. This approach of the learned trial Court is not appreciated. The very purpose of Order 7 Rule 11 C.P.C. is to see that if the suit is not maintainable, unnecessary trial need not begin and that is why the trial Court ought to have considered the application under Order 7 Rule 11 C.P.C. on its own merit. Merely because it is filed on third date after Vakalatnama is filed by the defendant is not a ground to reject the application under Order 7 Rule 11 C.P.C., which deserved consideration on its own merit. Whether a SBC REVISION PETITION NO.164/2008 – GRAM PANCHAYAT GHATOL V/S SMT. NIRMALA DEVI . - ORDER DTD.20.11.2008 3/3 notice under Section 109 of the Panchayati Raj Act, was given or not is a question of fact which has to be addressed by the learned trial Court. 4. Accordingly this revision petition is allowed and the impugned order dtd.15.5.2008 is set aside and the learned trial Court is directed to consider afresh the application under Order 7 Rule 11 C.P.C. of the defendant – petitioner in accordance with law. No order as to costs. (Dr.VINEET KOTHARI)J. Item No.49 Ss/-