1 2026:CGHC:8067 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 129 of 2023 • Ratilal S/o Late Lachhindhar Aged About 60 Years R/o Village Mulmula, Tehsil Kondagaon, District Kondagaon (C.G.),....(Defendant No. 1) ... Applicant versus 1. Tulsi Ram S/o Late Sonadhar Aged About 49 Years R/o Village Mulmula, Tehsil Kondagaon, District Kondagaon (C.G.),.....(Responddent/plaintiff). 2. Chief Executive Officer Zila Sahakari Kendriya Bank Maryadit, Jagdalpur, District Jagdalpur (C.G.) (Regional Office),.....(Respondent/defendant No. 2). 3. Assistant Registrar Cooperative Society, Kanker, District Kanker (C.G.) (Wrongly Typed As Assistant Registrar Kanker),...(Respondent/defendant No. 3). 4. State Of Chhattisgarh Through Collector, Kondagaon, District Kondagaon (C.G.),....(Respondent /defendant No. 4) ... Non-applicants (Cause title taken from Case Information System) For Applicant : Mr. Manoj Paranjpe, learned Senior counsel assisted by Mr. Aditya Diwan, Advocate. For Non-applicant No.1 : Mr. Ishan Verma, Advocate. For Non-applicant No.2 : Mr. Harshal Chauhan, Advocate. For State/Non-applicants No.4 : Mr. Ashutosh Shukla, P.L. Hon’ble Shri Justice Amitendra Kishore Prasad Order on Board 13/02/2026 1. Heard. 2. This Civil Revision has been filed by the applicant/defendant No.1 under Section 115 of the Civil Procedure Code, against the order dated 21.09.2023 DEEPTI JHA Digitally signed by DEEPTI JHA 2 passed by the Second Civil Judge, Class-I, Kondagaon, District Kondagaon (C.G.). 3. Facts of the case in brief are that, the respondent No.1/plaintiff filed a suit for declaration and injunction. The relief of declaration was sought to the effect that, he is the owner of the property in question described in Schedule C annexed with the plaint. The further declaration was sought to the effect that, the sale deed dated 06.01.1982 be declared as null and void and possession of the property be directed to be handover to the plaintiff from defendant No.1 and the injunction was also sought. The defendant No.1 filed his separate written statement and denied all the allegations made in the plaint. The defendant No.2 also filed the separate written statement. During the pendency of the suit, the issues were framed on 13.02.2020. Subsequently an application filed for framing additional issues and on 16.01.2023, the additional issues were framed. Two additional issues were framed; (a) whether the defendant No.2 is a public servant under the Cooperative Societies Act, 1960? and (b) whether the suit filed by the plaintiff is maintainable for want of mandatory notice?. Thereafter, an application under Order 7 Rule 11 of Code of Civil Procedure was filed and the prayer for rejection of the plaint was made on the ground that, without serving the mandatory notice under Section 94 of the Cooperative Society Act, 1960, the suit has been filed and therefore the same is liable to be rejected. But, the learned trial court vide impugned order dated 21.09.2023 has not only rejected the said application on the ground that, since the defendants did not raised the issue of maintainability of the suit for want of notice to defendant No.2 & 3, therefore, now they cannot be permitted to raised such a plea. It has been further held that, in fact the defendants have waived their rights to raised the issue of maintainability of the suit and on the other hand, the additional issues have been decided on merits. 3 4. Learned counsel for the applicant submits that though issue has been framed in respect of maintainability of the suit. However, the said issue has not been adjudicated during the course of trial and before that on an application under order 7 rule 11 of CPC, concerned trial Court has decided the same and has held that it will not effect the case of petitioner. The same issue has already been raised in the written statement. Since, the question which has already been raised is question of law and it can be adjudicated after considering the issue during the course of trial, hence, while setting aside the order passed by concerned trial court, the trial court may be directed to decide the issue after taking evidence of the parties during the course of the trial. 5. Learned counsel for the respondents would have submitted that the trial Court has rightly passed the order while holding that the non-issuance of notice to the respondent No.6 under Section 80(1) of the Code of Civil Procedure, 1908 (for short ‘CPC’) would not be fatal, as the same has never been objected by the defendants in their written statement. Even though, the concerned trial Court has considered this aspect while framing an appropriate issue in this aspect and the concerned trial Court has rightly held that since the objection has not been raised in respect of issuance of notice under Section 80(1) of CPC, as such it would be deemed that the defendants have abandoned the said ground and now the same cannot be agitated by the defendants. 6. I have heard learned counsel for the respective parties and perused the material available on record. 7. From perusal of the records, it appears that the concerned trial Court has framed the preliminary issue, i.e., issue No.9, which reads as under:- "ब द   9-   द . 2  च प  आ  द  द अचलल  ?” 4 8. From perusal of the aforesaid issue No.9, it appears that when the issue has been framed in respect of the maintainability of the suit. For the reasons that issuance of notice under Section 80(1) of CPC, which was a condition precedent under the Cooperative Societies Act, 1960 has been framed by the concerned trial Court, then the trial Court ought to have considered the said issue and should have decided and considered the same after taking evidence of the respective parties. 9. From perusal of the plaint, it appears that specific averments have been made in respect of auction of the property by the District Cooperative Bank Maryadit, Jagdalpur (C.G.), which goes to show that the auction proceedings have been done by the concerned respondent No.2 and as such when the defendants have raised the issue in this aspect, the concerned trial Court has rightly framed an issue. It is a trite law that when an appropriate issue has been framed regarding maintainability of the suit, the same shall be decided by the concerned trial Court after taking evidence of the parties and the same shall not be decided while considering the application filed under Order 7 Rule 11 of CPC. 10. So far as the abandonment of the ground by the defendants are concerned. Since later on, these grounds have been raised by the defendants, as such it cannot be said that they have abandoned their right to raise this issue. As such so far as, deciding these issues by the trial Court on an application filed under Order 7 Rule 11 of CPC is concerned. This Court is of the considered opinion that the trial Court committed an error of a law, while deciding the same issue. In view of the fact that when an issue has been framed by the concerned trial Court, the same shall be adjudicated after giving due opportunity to the parties, while leaving the evidence and thereafter the same shall be decided. 11. Accordingly, while setting aside the order dated 21.09.2023 passed by the Second Civil Judge, Class-I, Kondagaon, District Kondagaon (C.G.) on the 5 application filed under Order 7 Rule 11 of CPC, the concerned trial Court is directed to decide the issue No.9 regarding the maintainability of the suit while, giving opportunity of hearing and recording evidence to the parties, as an issue during the course of trial. 12. It is made clear that any observations made by this Court shall not be any precedent and the concerned trial Court may pass an appropriate order in accordance with law on its own. 13. With the aforesaid observations and directions, the instant revision stands disposed of. 14. Interlocutory application(s), if any, also stands disposed of. Sd/- (Amitendra Kishore Prasad) Judge Deepti Jha