IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL ON THE 16^th OF NOVEMBER, 2022 MISC. PETITION No. 5756 of 2018 BETWEEN:-

1. RAMAKANT VERMA (DEAD) THR. LRS. URMILA VERMA W/O LATE SHRI RAMAKANT VERMA, AGED ABOUT 50 YEARS, OCCUPATION: HOUSE WIFE R/O MANAS NAGAR BARA REWA TAH. HUZUR DISTT. REWA M.P. (MADHYA PRADESH)

2. PARESH PATEL S/O LATE SHRI RAMAKANT VERMA, AGED ABOUT 30 YEARS, OCCUPATION: STUDENT R/O MANAS NAGAR BARA REWA TAH. HUZUR DISTT. REWA M.P. (MADHYA PRADESH)

3. SHASHANK PATEL S/O LATE SHRI RAMAKANT VERMA, AGED ABOUT 25 YEARS, OCCUPATION: STUDENT R/O MANAS NAGAR BARA REWA TAH. HUZUR DISTT. REWA M.P. (MADHYA PRADESH)

4. KU. NEHA D/O LATE SHRI RAMAKANT VERMA, AGED ABOUT 22 YEARS, OCCUPATION: STUDENT R/O MANAS NAGAR BARA REWA TAH. HUZUR DISTT. REWA M.P. (MADHYA PRADESH)

.....PETITIONERS (BY SHRI UMESH SHRIVASTAVA, ADVOCATE)

AND

1. AJAY KUMAR MISHRA S/O SHRI DINESH PRASAD MISHRA, AGED ABOUT 18 YEARS, OCCUPATION: STUDENT R/O VILL. AND POST RATHARA REWA TAH. HUZUR DISTT. REWA M.P. (MADHYA PRADESH)

2. VIMLA D/O SHRI DINESH PRASAD MISHRA, AGED ABOUT 20 YEARS, OCCUPATION: HOUSEWIFE VILLAGE AND POST RATHARA REWA (MADHYA PRADESH)

Signature Not Verified

3. VIJAY KUMAR MISHRA S/O SHRI DINESH PRASAD MISHRA, AGED ABOUT 15 YEARS, OCCUPATION: STUDENT MINOR THROUGH NATURAL GUARDIAN MOTHER SMT. GAYATRI VILLAGE AND POST RATHARA REWA (MADHYA PRADESH)

4. KU. PRIYA MISHRA D/O SHRI DINESH PRASAD MISHRA, AGED ABOUT 12 YEARS, OCCUPATION: STUDENT MINOR THROUGH NATURAL GUARDIAN MOTHER SMT. GAYATRI VILLAGE AND POST RATHARA REWA (MADHYA PRADESH)

5. DINESH PRASAD MISHRA S/O LATE BHOORA PRASAD, AGED ABOUT 44 YEARS, VILLAGE AND POST RATHARA REWA (MADHYA PRADESH)

6. BRAJESH MISHRA (DEAD) THROUGH LRS. SMT.

ARCHANA @ PINKI W/O LATE BRAJESH MISHRA, AGED ABOUT 32 YEARS, VILLAGE AND POST RATHARA REWA (MADHYA PRADESH)

7. VAISHNAVI @ MANJU D/O LATE BRAJESH MISHRA, AGED ABOUT 8 YEARS, OCCUPATION: MINOR THROUGH NATURAL GUARDIAN MOTHER SMT. ARCHANA @ PINKI VILLAGE AND POST RATHARA REWA (MADHYA PRADESH)

8. YASH S/O LATE BRAJESH MISHRA, AGED ABOUT 2 YEARS, OCCUPATION: MINOR THROUGH NATURAL GUARDIAN MOTHER SMT. ARCHANA @ PINKI VILLAGE AND POST RATHARA REWA (MADHYA PRADESH)

9. STATE OF M.P. THROUGH COLLECTOR DISTT.

REWA (MADHYA PRADESH)

.....RESPONDENTS (NONE)

This petition coming on for admission this day, the court passed the following:

ORDER

This misc. petition has been preferred by the legal representatives of defendant No.1 Ramakant Verma challenging the order dated 15.11.2018 Signature Not Verified th (Annexure-P/1) passed by 5 Additional District Judge, Rewa in Civil Suit No.30-A/2013 whereby application filed on behalf of the petitioners under Order 7 Rule 11 CPC has been dismissed without deciding merits of the case observing therein that the issue raised by way of the application under Order 7 Rule 11 CPC can be decided only after framing of issues and after recording evidence.

2. Learned counsel for the petitioners submits that learned Court below has erred in not deciding the application under Order 7 Rule 11 CPC on merits and he submits that for exercising the jurisdiction under Order 7 Rule 11 CPC only the plaint allegations are required to be seen and no other evidence or the contentions of the defendants are required to be seen.

3. By placing reliance on the judgment of the Supreme Court in the case of Saleem Bhai and Others Vs. State of Maharashtra and Others (2003) 1 SCC 557 and Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust (2012) 8 SCC 706, he submits that learned Court below has erred in dismissing the application and deferring the decision after recording evidence.

4. Heard learned counsel for the petitioners and perused the impugned order.

5. In view of the decisions given by the Supreme Court in the case of Saleem Bhai and Church of Christ (supra), the impugned order does not appear to be proper because the learned Court below, for the purpose of deciding the applicat