Oral Judgment: (P.B. Majmudar, J.)

Admit.

2. Mr. Vidyarthi, learned Advocate, waives service for the Respondent No.1 and Mrs. Bhilare, learned Advocate, waives service for the Respondent No.2. With the consent of the learned Advocates, the First Appeal is taken for final hearing today itself.

3. The Appellant is the Original Plaintiff and the Respondent Nos.1 & 2 are the Original Defendant Nos.1 & 2 in the Special Civil Suit No.270 of 2008. The said suit was filed before the learned Civil Judge Senior Division Pune, for getting decree for damages, as according to the Appellant, his vehicle was subjected to damage because of the accident in question. It is the case of the Appellant that the vehicle in question was insured with the Respondent No.1 i.e. Insurance Company and the Respondent No.2 is the dealer of the said vehicle and in view of the loss sustained by the Appellant as it is the case of total loss, the Respondents should jointly pay the damages to the Appellant in quantum of the value of the car in question. In the aforesaid proceedings, the Respondent No.1-Insurance Company filed an Application at Exhibit “11” which application was filed under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 on the ground that no cause of action has arisen against the Respondent No.1 for filing the suit as the vehicle involved in the suit is not insured with the Respondent No.1 and in that view of the matter the plaint is required to be rejected. The said application was opposed by the present Appellant/Original Plaintiff on various grounds. The learned Trial Judge by the impugned order dated 9th February, 2009 allowed the said application at Exhibit “11” and the plaint was rejected against the Respondent No.1. The learned Trial Judge ordered that the suit to proceed against the Respondent No.2 only. It is the aforesaid order which is impugned at the instance of the Appellant/Original Plaintiff.

4. Mr. Dushyant Pagare, learned Counsel for the Appellant, submitted that the learned Trial Judge has gravely erred in passing the impugned order at the stage even when the issues are not framed. The learned Counsel for the Appellant, further submitted that the learned Trial Judge should not have passed the impugned order without recording the evidence and without giving an opportunity to the Appellant to lead appropriate evidence before the Trial Court and it is further submitted the Application under Order VII Rule 11 of the Code of Civil Procedure, 1908 was premature as the said point is required to be decided in the suit itself and finding should have been recorded after considering the evidence on record.

5. The learned Counsel for the Respondent No.1, on the other hand submitted that since the vehicle is not insured with the Respondent No.1, the suit was naturally not maintainable against the Respondent No.1. The learned Counsel further submitted that in case if this court comes to the conclusion that said question is required to be decided in the suit itself, then the Respondent No.1 be permitted to file written statement. The learned Counsel for the Respondent No.2 submitted that Respondent No.2 has nothing to say in this matter as the suit is allowed to be proceeded against Respondent No.2 who is the Original Defendant No.2 in the suit.

6. We have heard the learned Advocates at length. We have also gone through the impugned order and other documents forming part of the proceedings. So far as Order VII Rule 11(a) of the C.P.C.1908 is concerned, the Court is required to consider the averments made in the plaint. In the instant case, even though no issues are framed and even though no written statement is filed by the Respondent No.1, the Trial Court has considered the cover note and some other documents for coming to the conclusion that the vehicle was not insured with the Respondent No.1- Insurance Company. It is required to be noted that under Order VII Rule 11(a), the Court is required to fin