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2012 DIGILAW 494 (RAJ)

Bhairu v. Board of Revenue for Rajasthan, Ajmer

2012-02-21

ALOK SHARMA

body2012
ORDER : 1. This petition has been filed with the following prayer : (i) By an appropriate writ, order or direction, the impugned judgment and decree dated 12.05.2009 (Annexure-5) passed by the learned Assistant Collector, Chomu, Judgment dated 01.02.2010 (Annesure-6) passed by the learned Revenue Appellate Authority, Jaipur and judgment dated 02.03.2010 (Annexure-7) passed by the learned Board of Revenue, Ajmer may kindly be quashed and set aside and the application of the respondent No.5 Bharathari filed under Order 7 Rule 11 Civil Procedure Code may kindly be dismissed with costs and the suit of the petitioners be ordered to be decreed as prayed for. 2. Mr. R.K. Goyal appearing for the petitioners submits that courts below have mechanically resorted to Order 7 Rule 11 Civil Procedure Code in dismissing the suit filed by the petitioners-plaintiffs for declaration and injunction against the defendants, private respondents herein. Order 7 Rule 11 Civil Procedure Code reads as under : 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 would cause grave injustice to the plaintiff. 3. 3. The argument is that no matter whatever the merits of the case unless a suit laid falls specifically within any clause of Order 7 Rule 11 Civil Procedure Code, it cannot be dismissed at the inception. Counsel's argument is that the land in issue was purchased by a registered sale-deed on the basis of prior possession from the predecessors and ancestors of the private respondents in the year 1960 at which point of time sale by scheduled tribe person to non scheduled tribe person were not void but only voidable and came to be statutorily declared void only effective 01.05.1964. His submission is that no suit ever came to be filed by the private respondents or their predecessors in interest seeking declaration of the sale in 1960 in favour of the petitioners-plaintiffs as a void transaction. His further submission is that whatever the merits and demerits of the petitioners' suit for declaration and injunction against respondent-defendant No.4, the same has to be addressed on the basis of the pleadings of the parties, framing of issues, evidence laid and the obtaining position of law at the time of transaction. Mr. R.K. Goyal has relied upon the judgment of the Hon'ble Supreme Court in the case of Popat and Kotecha Property Vs. State Bank of India Staff Association, (2005) 7 SCC 510 to reiterate the universally accepted legal position. 4. Mr. K.K. Mehrishi appearing for the respondents would submit that the courts below including the Board of Revenue have rightly dismissed the suit of the petitioners-plaintiffs with reference to Order 7 Rule 11 Civil Procedure Code more particularly clause (d) thereof which provides that the plaint shall be rejected inter alia where the suit appears from the statement in the plaint to be void in law. His submission is that the land in issue had been purchased in 1960 from a scheduled tribe person in contravention of Section 42(b) of the Rajasthan Tenancy Act as existing at the relevant time and even though the transaction so made merely voidable, yet it being in the nature of prohibited transaction was also in the face of Section 23 of the Contract Act and no frivolous suit as the one laid by the petitioners-plaintiffs could be allowed to crowd the dockets of the courts and the petitioners' suit was rightly dismissed. His submission is that there is no error in the orders of the courts below which have concurrently found that the suit in issue was hit by Order 7 Rule 11 Civil Procedure Code. 5. I have considered the submission of the counsel for the parties and perused with writ petition as also the impugned orders. 6. A bare look at the Order 7 Rule 11 Civil Procedure Code indicates that a suit can be dismissed only in the four circumstances as set out in clause (a) to (d) thereof. Moreover as per dictum of the Hon'ble Supreme Court aside of situations under Order 7 Rule 11 Civil Procedure Code a suit can also be dismissed under Section 151 Civil Procedure Code where such suit is wholly frivolous without any legal substance merely to harass the opposite party. However, in the facts of the case, I find that the case of the petitioners-plaintiffs was that by virtue of their previous possession and to give it legal colour they had purchased the parcel of the land in issue from the original khatedars and even though the transaction was then voidable it was not void and hence not illegal. It is submitted that even though the transaction in 1960 may have been prohibited, it was only voidable transaction not a void or illegal transaction and was good transaction unless set aside in regular proceedings filed within the period of limitation. On the basis of obtaining facts of the case, on the basis of pleadings of the suit laid by the petitioners-plaintiffs before the SDO, it is submitted that there was no occasion to invoke Order 7 Rule 11 Civil Procedure Code by the courts below and dismiss the suit at the threshold. 7. For the proposition that what is voidable is not illegal until the party entitled to avoid the transaction takes legal proceedings and has the voidable transaction declared at his option void is fully supported in the judgment of the Hon'ble Supreme Court in G. Annamalia Pillai Vs. District Revenue Officer & Ors. (1993) 2 SCC 402 , para 5 which is reproduced hereunder : "We have heard learned counsel for the parties. We have been taken through the orders of the Revenue Authorities, judgment of the learned single Judge and of the Division Bench of the High Court in writ appeal. District Revenue Officer & Ors. (1993) 2 SCC 402 , para 5 which is reproduced hereunder : "We have heard learned counsel for the parties. We have been taken through the orders of the Revenue Authorities, judgment of the learned single Judge and of the Division Bench of the High Court in writ appeal. The Division Bench of the High Court, in a lucid judgment, answered the question - posed by us in the beginning - in the affirmative and against the appellant-Annamalai Pillai on the following reasoning: "We have already seen that clause (3) of section 8 of the Hindu Minority and Guardianship Act, 1956, specifically makes the transaction voidable. The lease executed by the guardian in this case is prohibited and in that sense it was without any authority. On the legal efficacy and the distinction between valid, void and voidable agreements, we find the following passage in Salmond on Jurisprudence, Twelth Edition at page 341:- 'A valid agreement is one which is fully operative in accordance with the intent of the parties. A void agreement is one which entirely fails to receive legal recognition or sanction, the declared will of the parties being wholly destitute of legal efficacy. A voidable agreement stands midway between these two cases. It is not a nullity, but its operation is conditional and not absolute. By reason of some defect in its origin it is liable to be destroyed or cancelled at the option of one of the parties to it. On the exercise of this power the agreement not only ceases to have any efficacy, but is deemed to have been void ad initio. The avoidance of it relates back to the making of it. The hypothetical or contingent efficacy which has hitherto been attributed to it wholly disappears, as if it had never existed. In other words, a voidable agreement is one which is void or valid at the election of one of the parties to it.' This distinction has also been judicially noticed in the Privy Council judgment reported in Satgur Prasad v. Harnarain Da, AIR 1932 PC 89 and in the Division Bench judgment in S.N.R. Sundara Rao and Sons, Madurai v. Commissioner of Income Tax, Madras, AIR 1957 Mad. 451 . 451 . The Division Bench held, following the Privy Council Judgment as follows:- "When a person, who is entitled to dissent from the alienation, does so, his dissent is in relation to the transaction as such and not merely to the possession of the alienee on the date of such dissent. The effect of the evidence is, therefore, to get rid of the transaction with the result that in law it is as if the transaction had never taken place." We have, therefore, no doubt that when the fifth respondent avoided the lease executed by his father, the fourth respondent, the lease became void from its inception and no statutory rights, could, therefore, accrue in favour of the appellant herein." 8. It is trite that the maintainability of a suit with reference to Order 7 Rule 11 Civil Procedure Code has to be evaluated on the basis of pleadings of the plaintiff without anything more. In this state of law, a bare look at the pleadings indicates that the pleadings as made did not occasion the dismissal of the suit for declaration and injunction filed by the petitioners at the threshold under Order 7 Rule 11 Civil Procedure Code. I find no substance in the contention of Mr. K.K. Mehrishi that the transaction in 1960 was contrary to the Section 23 of the Contract Act. That is an argument whatever its worth on the merits of the suit and not an argument to dislodge the very laying suit and to warrant invoking the powers of a court under Order 7 Rule 11 Civil Procedure Code. The respondents will be free to take all conceivable defences in the trial of the suit for declaration and injunction as laid by the petitioners-plaintiffs and the petitioners-plaintiffs will no doubt have the right to rebut all such defences. 9. In this view of the matter the writ petition is allowed and the order 1-2.05.2009 is set aside. The matter is remanded to the SDO, Chomu to dispose of the suit for declaration and injunction filed by the petitioners within a period of one year as the suit was laid as early as 1999. Petition allowed.