CR No.2632 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.2632 of 2009(O&M) Date of decision: 21.5.2009 Puran and others ......Petitioners Versus Manphool Singh and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. M.K. Mittal, Advocate for the petitioners. * * * Rakesh Kumar Garg, J.(Oral) CM No.11185-CII of 2009 CM is allowed subject to all just exceptions. CR No.2632 of 2009 This is defendants' revision petition challenging the order dated 16.3.2009 passed by the Civil Judge (Sr. Division), Rewari whereby application under Order 7 Rule 11 CPC filed by the petitioners was rejected. As per the averments made in this petition, one Richpal filed a civil suit titled as “Richpal v. Sheo Taj” challenging the gift deed dated 3.9.1976 on the ground of fraud. The aforesaid suit was decreed on 19.9.1980. An appeal was preferred challenging the aforesaid decision. During the pendency of the appeal, a compromise took place between the parties and a decree dated 30.1.1985 was passed on the basis of the compromise. The plaintiff-respondents have challenged the said compromise decree in the present suit which was filed on 25.1.2003. The CR No.2632 of 2009(O&M) 2 aforesaid suit is being contested by the petitioners on various grounds including the ground that a separate suit is not maintainable in view of provisions of Order 23 Rule 3A CPC. Along with other issues, the trial Court also framed the following issues in this case on 21.7.2004:- “(i) Whether the suit is not maintainable? OPD (ii) Whether the suit is liable to be dismissed under Order 7 Rule 11 CPC?”OPD The evidence of the plaintiff was closed on 22.4.2008 and the case was posted for evidence of the defendant-petitioners. On 11.6.2008, the petitioners filed an application under Order 7 Rule 11 CPC praying for rejection of the plaint on the ground that the present suit was barred under Order 23 Rule 3A CPC and no separate suit challenging compromise decree was maintainable. The trial Court vide impugned order dated 16.3.2009 rejected the aforesaid application filed by the defendant-petitioners taking note of the fact that issues were framed as far back as on 21.7.2004 and the plaintiff had already led evidence thereon and thereafter, when the case was posted for evidence of the defendants, instead of adducing the evidence, the present application was moved by them and thus, no merit was found in the application and the same was dismissed. The present revision has been filed by the defendants challenging the aforesaid impugned order. I have heard learned counsel for the petitioners. Undisputedly, the trial Court framed the issues in the suit on 21.7.2004 and issue regarding maintainability of suit was also framed. Issue “whether the suit is liable to be dismissed under Order 7 Rule 11 CPC?” OPD, was also framed. The onus to prove these issues was upon the defendant-petitioners. Instead of adducing the evidence or praying the CR No.2632 of 2009(O&M) 3 Court to treat these aforesaid issues as preliminary issues, the petitioners had filed the present application. Despite the fact that specific issues were framed on 21.7.2004, the petitioners have not explained as to why they never prayed for treating the issues as preliminary issues and how they could file application on 11.6.2008 for rejection of plaint under Order 7 rule 11 CPC. From the record of this petition, it is found that the compromise decree dated 30.1.1985 has also been challenged on the ground that interest of minor was not safeguarded. In my view, once a specific issue has been framed by the trial Court regarding the maintainability of the suit and rejection of plaint under Order 7 rule 11 CPC, the application filed by the petitioners for rejection of the plaint on the same ground was not maintainable. The trial Court was right in law while passing the impugned order. It seems that the application was filed only with the intention to delay the trial of the case. For the reasons recorded above, I find no merit in this revision petition. Dismissed. May 21, 2009 (RAKESH KUMAR GARG) ps JUDGE