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2010 DIGILAW 1529 (RAJ)

Bhanwar Singh v. Shaitan Singh

2010-08-25

R.S.CHAUHAN

body2010
JUDGMENT 1. - Aggrieved by the order dated 23.07.2010, passed by the Civil Judge (Junior Division), and Judicial Magistrate, First Class, Lalsot, District Dausa, whereby the learned Civil Judge has dismissed the petitioner's application under Order 7, Rule 11 CPC, the petitioner has challenged the same before this Court. 2. The Brief facts of the case are that in 2009, the respondent, Shaitan Singh, filed a suit against the petitioner for permanent injunction claiming himself as adopted son of Late Padam Singh. On 26.03.2010, the petitioner filed his written statement and denied the contents made in the plaint. On 19.04.2010, the petitioner filed an application under Order 7, Rule 11 CPC for rejection of plaint on the ground that no 'will' was ever executed by late Padam Singh in favour of the respondent and respondent was never adopted by him as his son. On 01.05.2010, the respondent filed reply to the application. However, vide order dated 23.07.2010, the learned Judge has dismissed the said application. Hence, this petition before this Court. 3. Mr. Shishu Pal Singh, the learned counsel for the petitioner, has contended that the entire plaint is based on false and fabricated facts. According to the learned counsel, the respondent is not the adopted son of Late Padam Singh. The issue whether he is the adopted son of Late Padam Singh or not already stands decided by judgment dated 16.05.1992, passed by the learned Munsif and Judicial Magistrate, First Class, Lalsot, District Dausa, wherein the learned Magistrate had already held that the respondent is not the adopted son of Late Padam Singh. According to the learned counsel, this judicial finding could not be ignored. Yet hiding this judgment which was against him, the respondent had filed the civil suit for permanent injunction against the petitioner. According to the learned counsel, the withholding of the vital facts tantamounts to a fraud being played upon the Court. However, the learned Judge has overlooked these aspects of the case and has erred in rejecting the application under Order 7, Rule 11 CPC. 4. Heard the learned counsel for the petitioner and perused the impugned order. 5. Order 7, Rule 11 CPC is as under : 11. However, the learned Judge has overlooked these aspects of the case and has erred in rejecting the application under Order 7, Rule 11 CPC. 4. Heard the learned counsel for the petitioner and perused the impugned order. 5. Order 7, Rule 11 CPC is as under : 11. Rejection of Plaint : The plaint shall be rejected in the following cases : (a) Where it does not disclose a cause of action; (b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of Rule 9. Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time could cause grave injustice to the plaintiff. 6. According to said provision, there are six grounds for which the plaint can be rejected. The learned counsel for the petitioner has not been able to make out any case as to under which of these six circumstances the present case falls under. Merely because there is a judicial finding to the fact that the plaintiff is not the adopted son, at best the petitioner can plead that there is an issue estoppel in the case. However, just on the basis of issue estoppel, the plaint cannot be rejected. Therefore, the learned Judge was certainly justified in concluding that it is too early in a day to reject the plaint. Thus, this Court does not find any illegality or perversity in the impugned order. 7. However, just on the basis of issue estoppel, the plaint cannot be rejected. Therefore, the learned Judge was certainly justified in concluding that it is too early in a day to reject the plaint. Thus, this Court does not find any illegality or perversity in the impugned order. 7. In this view of the matter, this petition is devoid of any merit. It is, hereby, dismissed.Petition dismissed. *******