An application under Order 7 Rule 11 CPC must be disposed of before trial; failure constitutes a jurisdictional error warranting revision.

JUDGMENT :

1. Heard learned counsel for the petitioners, Sri Hemant Kumar Pandey, learned counsel for the State as also Sri Dilip Kumar Pandey, learned counsel for the Gaon Sabha concerned.

2. Present petition has been filed for the following main reliefs:-

"Issue a writ, order or direction in the nature of CIRTIORARI to quash the impugned order dated 30-10-2023, 17.08.2023 passed by opposite party Nos. 1 & 2. Contained as Annexure No.1 & 7 to this writ petition.

Issued a writ, order or direction in the nature of MANDAMUS commanding the opposite parties not to disturb the peaceful possession of the petitioner during the pendency of this writ petition."

3. Brief facts of the case are to the effect that during pendency of the suit instituted under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act, 1950 (in short "Act of 1950"), pending as Case No. RST/00635/2019, Computerized Case No. T201910640200635 (Mullu vs. Sarju Prasad), an application under Order 7 Rule 11 of Code of Civil Procedure (in short "CPC") was filed by the petitioners and vide order dated 17.08.2023, the opposite party No. 2/Sub-Divisional Magistrate, Sadar, Sitapur, declined to dispose of the same. The order dated 17.08.2023 reads as under:-

4. Being aggrieved, the petitioners filed the revision under Section 333 of the Act of 1950, registered as Case No. 2584 of 2023, Computerized Case No. C202310000002584 (Sushil and others vs. Kamlesh Kumar and others).

5. By means of the impugned order 30.10.2023, the opposite party No. 1/Additional Commissioner (Judicial-I), Lucknow Division, Lucknow, dismissed the revision at the admission stage filed by the petitioners against the order dated 17.08.2023. The order dated 30.10.2023 reads as under:-

6. Based upon the judgment passed by the Hon'ble Apex Court in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali, (2020) 7 SCC 366 and Rajendra Bajoria v. Hemant Kumar Jalan, (2022) 12 SCC 641, it is stated that the suit is liable to be dismissed and the opposite party No. 2 has committed material illegality and has failed to exercise his jurisdiction in declining to dispose of the application under Order 7 Rule 11 of CPC preferred by the petitioners and as such, the revision was maintainable and in not entertaining the same, the opposite party No. 1 erred in law.

7. It is also submitted that the application under Order 7 Rule 11 of CPC can be preferred at any stage of the proceedings and if filed the same shall be disposed of by the concerned court/authority.

8. Considered the aforesaid and perused the record.

9. It appears from the record that prior to passing the order dated 17.08.2023, no notice was given to the private opposite parties and the opposite party No.1/Additional Commissioner (Judicial-I), Lucknow Division, Lucknow, dismissed the revision at the admission stage and taking note of this aspect of the case as also the law on the subject, this Court is of the view that no prejudice would be caused to the private opposite parties by the order proposed to be passed and accordingly, the issuance of notice to private opposite parties is dispensed with and the present petition is being disposed of finally at the admission stage.

10. This Court is not entering into the merits of the application under Order 7 Rule 11 of CPC and is only considering the issue of maintainability of the revision filed under Section 333 of the Act of 1950, as the opposite party No. 1/Revisional Authority has dismissed the revision being not maintainable at the admission stage, wherein, the order dated 17.08.2023 passed on the application under Order 7 Rule 11 of CPC was challenged, by which the opposite party No.2 declined to dispose of the said application.

11. Before proceeding further, it would be apt to take note of para(s) 23 and 24 of the judgment passed by the Hon'ble Apex Court in the case of Dahiben (supra), wherein the law related to dealing with an application under Order 7 Rule 11 of CPC has been indicated. Para(s) 23 & 24 of th