# M/S Sarnath Auto Zone Pvt. Ltd. Revisionist v. M/S Span Infra Developers Ltd

- **Citation:** (2024) 5 ILRA 1972
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Civil Revision No. 35 of 2024
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-sarnath-auto-zone-pvt-ltd-revisionist-v-m-s-span-infra-developers-ltd-51914
- **Pages:** 8

## Headnote

Civil Laws - Civil Procedure Code, 1908 -
Section 115 - Order 7 - Rules 11 - The
Limitation Act, 1963 - Article 54 of part 2
of the Schedule - Civil Revision - challenging
the rejection order passed by Civil Judge
rejecting the misc. Application filed under order
7 Rules 11 CPC - suit - for specific performance
of contract - barred by limitation as prescribed
u/article 54 of part 2 of the schedule of the
limitation Act - per contra, plea taken that, even
if the agreement for sale did not fix any
particular date by way of time limit for execution
of sale deed, it should be taken to be a date
fixed by plaintiff and the limitation to file suit for
specific performance may run from the date of
the notice - court finds that, the whole purpose
and idea behind order 7 Rule 11 that the
meaningless litigation should not be dragged
and therefore, such power has to be exercise
very cautiously - held, limitation is a mixed
question of law and question of maintainability
of the suit for being barred by limitation is the
root of the matter - therefore, present civil
revision stands disposed of with direction to the
court below to decide the issue qua order 7 rules
11 as preliminary issue while framing the issues
in the suit and decide the same first by affording
reasonable opportunity to the parties. (Para - 7,
17, 22, 24)

Civil Revision Disposed of. (E-11)

List of Cases cited:

## Text

1972 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 35 (2) of the POCSO Act, therefore,
I hereby direct the learned Trial Court to
conclude the trial within a period of nine
months from the date of receipt of copy of
this order taking recourse of Section 309
Cr.P.C. by fixing short dates, if possible, fix
dates on day-to-day basis to ensure that the
examination of all prosecution witnesses
and other witnesses from both the sides, if
any, be completed expeditiously and if any
of the witnesses does not cooperate in the
trial proceedings properly, the learned Trial
Court may take appropriate coercive steps
against such witness, which is permissible
under the law. Further, no unnecessary
adjournment shall be given to any of the
parties so that the trial in question could be
concluded within the time so stipulated.

19. However, liberty is given to the
applicant to file another bail application, if
the trial is not concluded within the
aforesaid stipulated time.

20. Let copy of this order be provided
to the learned Trial Court through District
& Sessions Judge, Hardoi by the Registry
of this Court within three working days for
its strict compliance.

21. Before parting with, I appreciate
the efforts and research made by Shri
Piyush
Tripathi,
Research
Associate
attached with me, in finding out the
relevant case laws applicable in the present
case.
----------
(2024) 5 ILRA 1972
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Civil Revision No. 35 of 2024

M/S Sarnath Auto Zone Pvt. Ltd.
 ...Revisionist
Versus
M/S Span Infra Developers Ltd.
 ...Opposite Party

Counsel for the Revisionist:
Satish Chandra Dubey, Sr. Advocate, Ujjwal
Satsangi

Counsel for the Opposite Parties:
Ravi Anand Agarwal, Shreya Gupta

Civil Laws - Civil Procedure Code, 1908 -
Section 115 - Order 7 - Rules 11 - The
Limitation Act, 1963 - Article 54 of part 2
of the Schedule - Civil Revision - challenging
the rejection order passed by Civil Judge
rejecting the misc. Application filed under order
7 Rules 11 CPC - suit - for specific performance
of contract - barred by limitation as prescribed
u/article 54 of part 2 of the schedule of the
limitation Act - per contra, plea taken that, even
if the agreement for sale did not fix any
particular date by way of time limit for execution
of sale deed, it should be taken to be a date
fixed by plaintiff and the limitation to file suit for
specific performance may run from the date of
the notice - court finds that, the whole purpose
and idea behind order 7 Rule 11 that the
meaningless litigation should not be dragged
and therefore, such power has to be exercise
very cautiously - held, limitation is a mixed
question of law and question of maintainability
of the suit for being barred by limitation is the
root of the matter - therefore, present civil
revision stands disposed of with direction to the
court below to decide the issue qua order 7 rules
11 as preliminary issue while framing the issues
in the suit and decide the same first by affording
reasonable opportunity to the parties. (Para - 7,
17, 22, 24)

Civil Revision Disposed of. (E-11)

List of Cases cited:

1. Ahmadsahab Abdul Mulla (2) (dead) Vs
Bibijan & ors.(2009) 5 SCC 462,
5 All. M/S Sarnath Auto Zone Pvt. Ltd. Vs. M/S Span Infra Developers Ltd.
1973
2. Eldeco Housing and Industries Limited Vs
Ashok Vidyarthi & ors.decided on 30.11.2023 3
of 13 in Civil Appeal No.1043 of 2023,

3. Madina Begum & anr. Vs Shiv Murti Prasad
Pandey & ors. decided on 01.08.2016 in Civil
Appeal No.6687 of 2016,

4. M/S Bankhandi Nath Developers Pct. Ltd. Vs
Alok Kumar Goel & ors. decided on 31.07.2019
in First Appeal No.118 of 2018,

5.
Tarlok
Singh
Vs
Vijay
Kumar
Sabharwal:(1996) 8 SCC 367,

6. Rathnavathi & anr. Vs Kavita Ganashamdas, 9
of 13 (2015) 5 SCC 223,

7. Dahiben Vs Anvindbhai Kalyanji Bhanusali
(Gajra) (dead) through legal representatives &
ors.: (2020) 7 SCC 366.

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Rakesh Pandey, learned
Senior Advocate assisted by Sri Satish
Chandra Dubey, learned counsel for the
petitioner and Ms. Shreya Gupta, learned
counsel for the contesting respondent.

2. Petitioner before this court has
questioned the order passed by Civil Judge
(Senior Division), Bareilly rejecting the
misc. application filed by the petitioner
being paper no.36-C requesting for disposal
of misc. application filed under Order 7
Rule 11 CPC first before proceeding with
suit.

3. The argument advanced by
learned counsel for the petitioner was that
the court was to hear and dispose of
application filed under Order 7 Rule 11
CPC for rejection of the plaint, if it
appeared from bare pleadings raised in the
plaint that suit was barred by law. Learned
counsel for the petitioner submitted that for
a decree of specific performance of
contract, the limitation prescribed under
Article
54 of
Second
Schedule
of
Limitation Act, 1963 was three years and
according to him from the pleadings raised
in the plaint, it was apparently an admitted
position that agreement for sale was
executed on 12.09.2012. Thus according to
him limitation to maintain a suit would be
upto 3 years whereas the suit had been
instituted in the year 2020 as the plaint was
verified and presented on 07.12.2020. It
was also submitted that in paragraph 5 of
the plaint it was pleaded that there were two
suits going on being O.S. Nos.843 of 2012
and 758 of 2012 relating to the property
which was subject matter of agreement for
sale and which came to be finally decided
on 26.10.2020 and 30.07.2020 respectively
but there was no statement of fact pleaded
that there was any interim order operating
in favour of the parties not to dispose of the
suit land during pendency of the suit
proceedings. Thus according to him,
petitioner was not restrained by any order
of court from executing the sale deed
pursuant to the agreement for sale. Learned
Senior Advocate has placed reliance upon
judgment of the Supreme Court in the case
of Ahmadsahab Abdul Mulla (2) (dead) v.
Bibijan and others (2009) 5 SCC 462 in
support of his arguments and prayed to
interfere with the order in my exercise of
jurisdiction under Section 115 of Code of
Civil Procedure.

4. Per contra, it was argued by
learned
counsel
appearing
for
the
contesting respondents, Ms. Shreya Gupta
that in view of the limitations as contained
under Article 54 of Part 2 of Schedule of
Limitation Act, 1963, in the event date was
not fixed for performance, the limitation of
three years period would start when the
plaintiff received a notice of refusal of
performance by the proposed vendor. In
1974 INDIAN LAW REPORTS ALLAHABAD SERIES
support of her argument she took the Court
to the pleadings raised in paragraphs 4 and
7 of the plaint in which a categorical
statement had been made that the last notice
sent to the defendant on 03.11.2020 was not
replied to and it was for the first time on
30.11.2022 that the defendants refused to
execute agreement for sale except on
payment of a higher price towards sale
consideration. Thus according to her in
view of Article 54 cause of action accrued
to file a suit on 30.11.2020 only and so the
presentation of the suit on 07.12.2020 was
well within the time prescribed for. She
also took the Court through the document
of agreement for sale in which vide
paragraph 1 it was stated that the petitioner
would get the sale deed registered within
three months from the date of agreement for
sale and vide paragraph 3 thereof it was
stated that the boundary wall will be
constructed within a period of 3 months and
if there would be any dispute then any
registry will be done only after the
resolution of such dispute.

5. Ms. Gupta submitted that those
two suits were going on relating to the
property in question and there was some
serious boundary dispute and that is why no
boundary
was
constructed
within
prescribed period of three months of
execution of agreement for sale. She
submitted that vide paragraph 4 of the
plaint it was clearly pleaded that the
registered notice was sent by the plaintiff
on 03.12.2012 i.e well within the period of
three months for execution of a saledeed in
performance of agreement for sale.

6. Learned counsel for the
answering respondents has relied upon a
recent judgment of the Supreme Court in
the case of Eldeco Housing and Industries
Limited v. Ashok Vidyarthi and others
decided on 30.11.2023 in Civil Appeal
No.1043 of 2023 and Madina Begum and
another v. Shiv Murti Prasad Pandey and
others decided on 01.08.2016 in Civil
Appeal No.6687 of 2016 and also a
judgment of Division Bench of this Court
in the case of M/S Bankhandi Nath
Developers Pct. Ltd. v. Alok Kumar Goel
and 4 others decided on 31.07.2019 in
First Appeal No.118 of 2018

7.

Meeting
the
counter
submissions made by Ms. Shreya Gupta,
Mr. Rakesh Pandey, learned Senior
Advocate for the petitioner has submitted in
rejoinder that even if the agreement for sale
did not fix any particular date by way of
time limit for execution of the sale deed,
since the notice dated 03.12.2012 was itself
got issued by the plaintiff, it should be
taken to be a date fixed by the plaintiff and
this limitation to file suit for specific
performance of contract may run from the
date of the notice and the date time given
therein.

8. Having heard learned counsel
for respective parties and having perused
the records, the question arises for
consideration of the Court is whether the
pleadings as raised in paragraph 4 would
bring the limitation within the meaning of
first part of Article 54 or in the event of it
being not so, the date of refusal to execute
a sale deed mentioned in paragraph 7 as
30.11.2020 would be a point of limitation.
Article 54 of the Limitation Act, 1963 runs
as under:

Description
of suit
Period of
limitation

Time
from
which period
begins to run
54.
For
specific
do
The
date
fixed for the
performance,
5 All. M/S Sarnath Auto Zone Pvt. Ltd. Vs. M/S Span Infra Developers Ltd.
1975
performance
of a contract

or, if no such
date is fixed,
when
the
plaintiff has
notice
that
performance
is refused.
(Emphasis added)

9. From the agreement for sale
copy of which is part of the record filed as
annexure 1 to the affidavit filed in respect
of the said application, I find that no date
has been mentioned for execution of the
sale deed. Paragraph nos.1, 2 and 3 relevant
for the purposes are reproduced hereunder:

"1. यह दक िोनो पक्षों ने बैनामें की तहरीर व रदजस्री
के दलये अपनी हमदत े दमयाि बैनामा रदजस्री की आज दिनािंक
 े तीन माह करार पाई है।
2. यह दक प्रथम पक्ष दनदित की अवदध के भीतर अपनी
दनमनदलदखत मपदत्त का बैनामा दद्वतीय पक्ष के हक में तहरीर व
तकमील कर िेगा और कोई भी आपदत्त दक ी भी प्रकार की बैनामा
करने में नहीं करेगा।
3. यह तक अन्दर म्याद उि आराजी पर प्रथम पक्ष
द्वारा बाउन्री कराई जायेगी यतद बाउन्री होिे के दौराुुि कोई
तववाद उत्पन्ि होिा है िो प्रथम पक्ष द्वारा तववाद सुिझाये जािे
के पश्चाि ही रतजस्री कराई जायेगी। आराजी का फ्रन्ट उत्तर से
दतक्षण 82 तिट है।"
(Emphasis added)

10. From a bare reading of the
aforesaid paragraphs two facts emerge out:
Firstly a period of three months was
prescribed for execution of the sale deed
with effect from the date of agreement for
sale which is admittedly 29.10.2012: and
secondly the registry of sale deed was also
subject to the condition that boundary wall
would be constructed within the prescribed
period of three months and if the boundary
wall is not constructed on account of any
dispute, then the execution of the sale deed
will take place only after resolution of such
dispute. Thus, it is clear that period of three
months was not a date fixed period in
paragraph no.1 as prescribed under the
agreement for sale and further such period
of three months was subject to condition
that there should not be any dispute with
regard to the boundary as the boundary was
to be constructed within such period of
three months.

11. In the face of these conditions
as laid in the agreement to sell, if I examine
the plaint allegations I find that in
paragraph 4, a notice was sent on
03.12.2012 by the plaintiff asking the
petitioner to execute a sale deed within
time. This date is the point for sending the
notice within a period of three months.
Since three month's period had yet not
expired therefore, it cannot be said that
03.12.2012, date of notice sent by the
plaintiff should be taken as a date in point
of time to execute the sale deed so as to
apply the first part of Article 54 of the
Limitation Act. Still further, I find that
pleadings have been made in paragraph 5 of
the plaint to the effect that dispute was
going on in respect of the same land and
that being a situation coupled with the fact
that the boundary wall had not been
constructed, it could be a case therefore,
that there was some dispute that was why
boundary wall was not constructed and this
dispute lasted till 26.10.2020 when the
second suit was decided. This becomes a
question of fact to determine as to whether
these suits that were pending, were relating
to the same property and was there any
dispute regarding the land in question so as
to create obstruction in construction of the
boundary wall. This could have been
determined only after the parties led their
evidence. Therefore, this issue becomes
mixed question of fact and law whether in
the matter of limitation to run so as to
1976 INDIAN LAW REPORTS ALLAHABAD SERIES
determine whether the suit was bared by
time or not. The court was to apply the law
to the facts yet to come out by way of
evidence to be led by the parties and its
proper appreciation. There could be a case,
therefore, if the land in question which was
subject matter of agreement for sale, was in
issue in two suits being O.S. Nos.7843 of
2012 and 758 of 2012 and the boundary
could not be constructed as per terms
carried in paragraph 3 of the agreement for
sale, so saledeed could be executed only
after the resolution of such dispute. Further
upon appreciation of facts if this fact comes
out to be a correct fact that there was a
dispute qua property in question, then
certainly limitation would run from the date
when the second suit being 843 of 2012
came to be disposed of finally on
26.10.2020 in the light of paragraph 3 of the
agreement for sale.

12. As far as pleadings raised in
paragraph no.7 that the plaintiff faced
refusal for the first time on 30.11.2020 at
the end of the defendant in the matter of
execution of saledeed is concerned as
defendant had been claimed to have
demanded
certain
more
price
as
consideration, this in my view is also a
question of fact which can be decided after
appreciation of evidence in support of the
facts so pleaded. Thus in any view of the
matter therefore, second part of Article 54
is applicable to the present case and looking
to the terms and conditions of the
agreement for sale vis-a-vis the pleadings
raised that two suits, as claimed to be
pending in connection qua the same
property..

Coming to the judgment cited by
Mr. Pandey in the case of Ahmadsahab
Abdul Mulla (2) (dead) (supra) I find that
the court referred to judgment in the case of
Tarlok
Singh
v.
Vijay
Kumar
Sabharwal:(1996) 8 SCC 367, which court
had dealt with the expression 'date fixed for
the performance' as contained in Article 54
of the Schedule of the Limitation Act. The
court held that the judgment in Tarlok
Singh was rendered in a factual scenario
and proceeded to hold vide paragraph 10
that the word "'fixed' in essence means
having final and crystallized form or
character not subject to change or
fluctuation".

13. Having held this expression
'date fixed' to be a crystallized notion, the
Court meant it to mean that there has to be
a date fixed as final limit at a definite point
of time. The Court vide paragraph 12 held
thus:

 "Whether the date was fixed or
not
the
plaintiff
had
notice
that
performance is refused and the date thereof
are to be established with reference to
materials and evidence to be brought on
record. The expression `date' used in
Article 54 of the Schedule to the Act
definitely is suggestive of a specified date in
the calendar. We answer the reference
accordingly. The matter shall now be
placed before the Division Bench for
deciding the issue on merits."
(Emphasis added)

14. This judgment was relied upon
by Ms. Gupta, learned counsel appearing
for the plaintiff-respondents. She has
argued that the what had been held in
paragraph 12 was only suggestive of
specified date in calendar which is not the
case in hand and, therefore, the second part
of Article 54 would prevail. A Division
Bench of this Court in the case of M/s
Bankhandi Nath Developers Pvt. Ltd
(supra) in the background of the factual
5 All. M/S Sarnath Auto Zone Pvt. Ltd. Vs. M/S Span Infra Developers Ltd.
1977
matrix of that case held that the plaint could
not be rejected under Order 7 Rule 11 CPC
by placing reliance upon a part of the plaint.
Vide paragraph 29, the court has held thus;

"29. In our opinion, this itself is
a matter of appreciation of evidence and
therefore, plaint could not have been
rejected under Order VII Rule 11 C.P.C. by
placing reliance upon part of plaint and
ignoring material pleadings contained in
plaint which explain the circumstances
leading to institution of suit in the year
2017. In our view, Court below has erred in
allowing application under Order VII Rule
11 (d) C.P.C. filed by DefendantRespondent No.2. In all propriety, Trial
Court should have framed an issue
regarding question of limitation and decide
the same after evidence had been led by
parties."

15. In view of the above, therefore,
relying upon a part of the pleading in
paragraph 4 that a notice was sent by the
plaintiff to the defendant to execute the
saledeed on 03.12.2012 cannot be read in
isolation. It is to be read contextually
alongwith further pleadings raised in the
subsequent paragraphs. Supreme Court in
the case of Madina Begum (supra) has
dealt with this issue of limitation prescribed
under Article 54 of the Schedule of the
Limitation Act, 1963.

16. In that case, Supreme Court
first referred to the order of the High Court
wherein the period of 6 months to execute
the sale deed as prescribed under the
Contract Act was taken to be a date fixed
for performance of contract and so the
limitation was stated to run on the expiry of
six months period. Supreme Court did not
agree with this above view of the High
Court and referred to the judgment in the
case of Ahmadsahab Abdul Mulla (supra)
to hold that 'date fixed' for performance
means as a crystallized notion and the
expression date fixed was held to be
suggestive of a definite timeline. The Court
then proceeded to refer another judgment of
the Supreme Court in the case of
Rathnavathi and another v. Kavita
Ganashamdas, (2015) 5 SCC 223 wherein
it was held that if no date was fixed,
limitation of three years would begin to run
when the plaintiff had the notice of refusal
of
performance
of
agreement.
That
judgment of the Supreme Court was
accordingly referred to vide paragraph 20,
21, 22 and 23, and the Court held thus:

 "20. Quite independently and
without reference to the aforesaid decision,
another Bench of this Court in Rathnavathi
and Another v. Kavita Ganashamdas[2]
came to the same conclusion. It was held in
paragraph 42 of the Report that a mere
reading of Article 54 would show that if the
date is fixed for the performance of an
agreement, then non-compliance with the
agreement on the date would give a cause
of action to file a suit for specific
performance within three years from the
date so fixed. But when no such date is
fixed, the limitation of three years would
begin when the plaintiff has notice that the
defendant has refused the performance of
the agreement. It was further held, on the
facts of the case that it did not fall in the
first category of Article 54 since no date
was fixed in the agreement for its
performance.
21. The Clauses of the agreement
for consideration in Rathnavathi were
Clauses 2 and 3 and they read as follows:-

"2. The purchaser shall pay a
sum of Rs. 50,000 (Rupees fifty thousand
only) as advance to the seller at the time of
signing this agreement, the receipt of which
1978 INDIAN LAW REPORTS ALLAHABAD SERIES
the seller hereby acknowledges and the
balance sale consideration amount shall be
paid within 60 days from the date of expiry
of lease period.

3. The seller covenants with the
purchaser that efforts will be made with the
Bangalore Development Authority for the
transfer of the schedule property in favour
of the purchaser after paying penalty. In
case it is not possible then the time
stipulated herein for the balance payment
and completion of the sale transaction will
be agreed mutually between the parties."

22. As far as the present appeal is
concerned, the agreement between Gulab
Bai and Madina Begum did not specify a
calendar date as the date fixed for the
performance
of
the
agreement.
Consequently, the view expressed in
Ahmadsahab Abdul Mulla and Rathnavathi
on the first part of Article 54 clearly applies
to the facts of the case. In taking a contrary
view, ignoring the absence of a specified
date for the performance of the agreement
and reversing the Trial Court, the High
Court has fallen in error.

23. It is not necessary for us to
multiply
authorities
on
the
subject
particularly when the issue has been
conclusively settled by a Bench of three
learned
judges
of
this
Court
in
Ahmadsahab Abdul Mulla and we see no
reason to take a different view.

17. In a recent judgment of Eldego
Housing and Industries Limited (supra)
the Supreme Court has referred to its earlier
judgment regarding the scope of Order 7
rule 11 in the case of Dahiben v.
Anvindbhai Kalyanji Bhanusali (Gajra)
(dead) through legal representatives and
others: (2020) 7 SCC 366. The Court in this
case has held that this power under Order 7
Rule 11 is envoked to dismiss the suit
summarily at threshold if on the ground
contained under the provisions such suit
can be dismissed, as the Court would not be
permitting the plaintiff to unnecessarily
protract the proceedings. The whole
purpose and idea is that the meaningless
litigation should not be dragged and
therefore, such power has to be exercised
very cautiously. It could be also a case
where no cause of action is seen. So the
only question now, therefore, to be seen is
as to whether from bare pleadings raised in
the plaint it can be concluded that suit was
barred by time or where the pleadings does
not disclose any cause of action so the suit
deserves dismissal at a very threshold.

18. Mr. Pandey, has not argued that there
was no cause of action. The only point
argued was that the suit was barred by
limitation.

19. On the point of limitation, a
suit can be dismissed summarily if it is
determinable from the pleadings that
limitation would have run from a particular
point, say 'A', which plaintiff admits and
yet suit has been filed beyond prescribed
limit. But this is not the case in hand.

20. Looking to the exposition of
law on the point and interpretation of the
provisions contained under Article 54 of
Limitation Act, 1963 in judgments referred
to hereinabove, it can be safely concluded
that the agreement since did not contain any
fixed date or a crystallized date to suggest
that if agreement for sale was not executed
on or before that date then cause would
arise to maintain a suit for specific
performance of contract.

21. Even for arguments' sake
though law is otherwise, if it is taken that
period of three months would run as
limitation period, clause 3 of the agreement
5 All. Umesh Singh Vs. State of U.P. & Anr.
1979
for sale would come into play, as this clause
gives a discretion to the defendantpetitioner to execute the saledeed after the
resolution of dispute, if any, by erecting the
boundary wall upon the land in suit if it was
not constructed within three months of
execution of agreement for sale.

22. Looking to the pleadings as
raised in paragrpah no.5 to the plaint it can
be safely concluded that there was some
dispute regarding land in question and the
Court would only come to a conclusion
after the evidence is led whether this
dispute was the reason for petitioner not
constructing the boundary wall and not
executing the saledeed. There is no
pleading in the entire petition that petitioner
had ever shown his readiness and
willingness to execute the sale deed by
constructing the boundary wall, or that he
had replied to the first notice. All this,
therefore, leads to an inevitable conclusion
that question as to limitation is a mixed
question of law and fact so as to determine
whether the suit in question is filed within
limitation period or was barred by law of
limitation.

23. In such above view of the
matter, therefore, neither I find any
manifest error in the order passed by the
trial court, nor do I see any wrongful
exercise of jurisdiction vested in the Court,
nor even any failure to exercise jurisdiction
vested in Court that may require this Court
to interfere with the order impugned in
exercise of its revisional power under 115
C.P.C.

24. However, since the question as
to maintainability of the suit for being
barred by limitation goes to the root of the
matter, I hereby provide that while the
issues are framed, the issue qua order 7 rule
11 CPC shall be framed as first issue to be
decided as preliminary issue before any
other issue is decided. Parties shall be
permitted to lead their evidence and shall be
afforded reasonable opportunity of hearing
upon the said preliminary issue.

25. With these observations and
directions, this petition stands disposed of.
----------
(2024) 5 ILRA 1979
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Revision No. 5872 of 2023

Umesh Singh ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Mohd. Raghib Ali, Sr. Advocate

Counsel for the Opposite Parties:
G.A., Satya Priya Mishra

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 2 (d), 2(h), 156(3),
161, 173, 173(2), 190, 190(1), 190(1)(a),
190 (1)(b), 191(b), 200, 202, 397 & 401 -
Indian Penal Code, 1860 - Sections 34,
307 & 427 - Indian Evidence Act, 1872 -
Section 11 - Criminal Revision - u/s 397/401
Cr.P.C. - FIR u/s 307, 427, 34 of IPC -
investigation - final report - protest petition -
rejected by the ACJM - complainant field
criminal revision - Revisional Court allowed the
revision by remitting the matter to court below
to decide the same afresh - against which the
present Revision - aspect of, the power of
magistrate and jurisdiction of Revisional Court is
discussed - court finds that, (i) after registration
of FIR and after submission of the final report by
the I.O. same was transfer to crime branch, (ii)