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ABDUL KADIR v DEVI SINGH - CR Case No. 133 of 2007  RD-RJ 2731 (17 May 2007)
S.B.Civil Revision Petition No.133/2007
Abdul Quadir. vs.
Date : 17.5.2007
HON'BLE MR. PRAKASH TATIA, J.
Mr.OP Mehta, for the petitioner.
Heard learned counsel for the petitioner/ defendant.
The petitioner is aggrieved against the order dated 9.2.2007 by which the trial court dismissed the petitioner's application filed under Section 11 CPC whereby the petitioner prayed for dismissal of the suit.
Learned counsel for the petitioner submitted that the plaintiff/respondent filed two suits for recovery of loan amount against the petitioner/defendant. In one of the suit, the Additional District Judge No.3,
Jodhpur decided the issue against the plaintiff and held that the plaintiff is a money lender and his suit was dismissed for want of license vide judgment and decree dated 20.5.2006. The defendant, therefore, submitted application under Section 11 CPC and prayed that in view of the said finding, the present suit of the plaintiff be dismissed.
Learned counsel for the petitioner frankly pointed that the issue has already been framed by the trial court in the present suit with respect to the defendant's contention about the plaintiff being money lender and having no license.
I considered the submissions of learned counsel for the petitioner and perused the impugned order.
When the issue is framed, then normally it is preferable that proper request be made to the Court to decide it as preliminary issue if it is permissible under Order 14 Rule 2 CPC and thereafter, a finding can be recorded.
In this case, in the order itself, it is mentioned that the plaintiff in the suit which was decided by the judgment and decree dated 20.5.2006, has preferred first appeal before this Court. In view of the above, the application of the petitioner is misconceived and the revision petition deserves to be dismissed.
Consequently, this revision petition, having no merits, is hereby dismissed.
After dictation of the order, learned counsel for the petitioner submitted that he may be permitted to withdraw this revision petition so that he may move application under Section 10 CPC.
For that purpose, no permission is necessary because of the reason that what the plaintiff can do legally, he can do legally.
(PRAKASH TATIA), J.
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