~:'\. ^^. ''\. •'-F /-^ ^ \-<% 1 '3!"eti 1 ^ ^.^'r iET,ii ,,,'lie HIGH COURT OF CHHATTtSGARH : BILASPUR WRIT PETITION (Art. 2271 N0. S652 OF 2008 PETITIONERS/ (Defendants No.1 to 3 before e trial Court) RESPONDENTS/ (Plaintiff before the trial Court) (Defendants No.4 to 14 before the trial Court) 2. 3. 3. 4. 5. 6. 7. Dinesh Kumar, S/o Late Nepal Singh Bharadiya, aged about 54 years. Pyarelal, S/o Late Nepal Singh Bharadrya, aged about 52 yeare. Smt. Sona Bai, Wklow of Late Nepal Singh Bharadiya, aged about 70 years. All are residents <rf Village & Post Office Bharda, Tahsi! & Disfrict Duig, Chhattisgarh. Versus Krishrwi Kumar Singh, S/o Gulab Singh Bharadiya, ^ed about 55 years, R/o village Bharda, Tahsil & District Durg, Chhattisgarh. Sohanlal, S/o Late Jethmal Jain, aged about47years. Suresh Kumar, S/o Late Jeflimal Jain, aged about 45 years. Sandeep Kumar Jain, S/o Rajendra Kumar Jain, aged about 45 yeare. Respondents No.2, 3 & 4 atl residente of Jain ^4andir Road, Durg, Ward No.32, Tahsil & District Durg (CG). Pawan Kumar, S/o Late Vikram Singh Bharadiya, aged about 55 years, R/o village Bharar, Post Bharar, TahsB Paten, Distt. Duig (CG). Smt. Chandrakala, Widow of Late Pooran Kumar Bharadiya, aged about 60 years. Ghanshyam, S/o Late Pooran Kumar Bharadiya, aged about 18 years. Respondents No.6 & 7 both residents of village Bharda, Post OfRce Kuthrail, Tahsil & Distt. Durg (CG). Smt. Chitrarekha, D/o Late Pooran Kumar Bharadiya, aged about 30 years, Wffis of Chandrika Prasad, R/o Titeri, Post Aijunda, Tahsil Gundardehi, Distt. Durg ^\"\ s^^a^ ^ ^•^'•^':-')^. ^ ^ .'':'' -'u- ^ <3 9. Smt. Sushma, D/o Late Pooran Kumar, aged about 28 years, Wtfe of Mahendra Belchandan, R/o Bharda, Tahsil & Distt. Durg (CG). 10. Smt. Giteshwari, D/o Late Pooran Kumar Bharadiya, aged about 25 years, Wife of Langeshwar, R/o Anjora (Dhaba), Post Nagpura, Tahsil & Distt. Durg (CG). 11, Smt. htemlata, D/o bate Pooran Kumar Bharadiya, aged about 23 years, Wife of Balla Deshmukh, R/o Pacharipara, Durg (Desh Kirana Stores), Tahsi! & Distt. Durg (CG). (Writ petition under Article 227 of the Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Rajeev Shrwastava with Ms. Asttia Singh Sisodia counsel for the petitioners. ORAL ORDER (Passed on this 13"' day of October, 2008) The petitionere/defendants No.1 to 3 being aggrieved by the order dated 18-9-2008 (Annexure-P/1) passed by the 11 Add'Bonal District Judge, Durg, in ch/il siiit No.6-A/2006 (Krishna Kumar vs. Dinssh Kumar & Others) have preferred this petition under Articte 227 of the Const'rtution of India chaltenging ttie decision of the Court below on the ground that the question raised in the apptication filed under Order 7 Rule 11 ofthe Code of Civjl Procedure, 1908 (fw short "the CPC") read wtth Section 8 6f the Suite Valuation Act, 1887 (forshort "the Act, 188T^ can be considered only after evidences are examined. 2) Shri Shrivastava, teamed counsel appearing on behalf of the petitioners/defendants No. 1 to 3 relying on a decision of the Hon'ble Supreme Court in the matter of Sajjan Sikaria and Others vs, Shakuntala Devi Mishra and Others contends that it is a setfled position in 'aw that white dealing wBh an application under Order 7 Rule 11 6f the CPC, consideiBtion of written statement is not a condition precedent and only averments In the ptaint have to ba considered, 3) It appears that learned Additional Distrtet Juctge after havir^ considered the facts and circumstances of ttie cass has found that the question involved is a mixed question of taw and facts. Thus, the appljcation cannot be considered without examining the evidences at alt. (2005) 13 SCC 687 -\- £? / Gowri 4) In view of the foregoing, it would be expedient if the applieation of the petitioners filed under Order 7 Rule 11 of ttie CPC is considered, immediately, as preliminary objection after evidences are recorded and examined. 5) Since no decision has been given on merit, notice was n&t g'lven to the respondents herein; however, if the respondente are aggrieved by this order, liberty is reserved to them to approach this @ourt for review of this order. 8) Wrth fte aforesaid directions and obsen/ations, this petition stands disposed of. 7) Consequently, !.A No.1 for grant of interim relief/stay also stands dfeposedof. - --—--.__ Sd,/- SatishK.Agnihotri Judge