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2012 DIGILAW 932 (RAJ)

Naseeb Kaur v. Bhagwan Singh

2012-04-12

VINEET KOTHARI

body2012
Hon'ble Dr. KOTHARI, J.—The petitioner-defendant Smt. Naseeb Kaur W/o Sh. Gurtej Singh being aggrieved by the order impugned dated 7.2.2012 passed by learned trial court of Civil Judge (Jr. Division) & Judicial Magistrate, First Class, Sardulsahar, District Sriganganagar, rejecting her application under Order 7 Rule 11 CPC in Civil Suit No. 10/2006- Bhagwan Singh & Anr. vs. State & Ors., is before this Court in the present revision petition. 2. Learned counsel for the petitioner-defendant, Mr. H.S. Sidhu submitted that vide order dated 7.6.2005, the Executive Engineer, Irrigation Department, Hanumangarh Junction sanctioned additional "Naka" (outlet) for water course on defendant's land situated in Chak No. 12-SDS-A, Murraba No. 48/144 at Kila No. 22 to 25, 48/145 at Kila 2 to 5 and No. 47.2/145 and against the said order of Executive Engineer dated 7.6.2005, the plaintiffs, namely, Bhagwan Singh and Mool Chand filed present suit in the civil court, which was not maintainable; and therefore, the defendant filed present application under Order 7 Rule 11 CPC for dismissal of the said suit in view of bar of jurisdiction under Section 52 of the Rajasthan Irrigation & Drainage Act, 1954, which is quoted below for ready reference. Learned counsel for the petitioner, therefore, urged that civil court had no jurisdiction to entertain the suit as the same pertained to supply of water by additional `Naka' (outlet) to the present petitioner-defendant and consequently the suit deserves to be dismissed at the anvil of the Order 7 Rule 11 CPC. "Sec. 52- Jurisdiction under this Act of Civil Court: Except where herein otherwise provided all claims against the State Government in respect of anything done under this Act may be tried by the Civil Courts; but no such court shall in any case pass an order as to the supply of water to any crop sown or growing at the time of such order." 3. A perusal of the impugned order dated 7.6.2005 shows that on the application of the petitioner's husband, namely, Gurtej Singh, the said additional `Naka' (outlet) was sanctioned by the Executive Engineer on 7.6.2005 despite objection of the plaintiff-respondent, namely, Bhagwan Singh, who also raised the issue before the said authority that the case of the defendant-Naseem Kaur for sanction of such additional `Naka' (outlet) had also been rejected on two earlier occasions, however, the said additional `Naka' (outlet) was sanctioned on 7.6.2005, and appeal against that also, came to be rejected by the Superintending Engineer vide order dated 7.3.2006. 4. Having failed before the departmental authorities, the plaintiffs, namely, Bhagwan Singh and Mool Chand filed the present suit in the Civil Court, which at stage of defendant's evidence, was sought to be dismissed by filing application under Order 7 Rule 11 CPC and upon its rejection, the defendant-petitioner has filed present revision petition before this Court. 5. A bare perusal of provision of Section 52 of the Act would indicate that a limitation has been placed on the jurisdiction of civil courts under Section 52 of the Act, which provides that all claims against the State Government in respect of anything done under this Act may be tried by civil court, but `no such court shall in any case pass an order as to supply of water to any crop sown or growing at the time of such order.' The exception and the limited restraint on the jurisdiction of the civil courts is conditioned by the fact that no such order should be passed at a particular point of time when either the crop is sown or is growing at the time of such order. 6. The said condition does not completely oust the jurisdiction of the civil court altogether. From the additional `Naka' (outlet) sanctioned in favour of present defendant-petitioner, water supply would be a regular phenomenon, which has been sought to be challenged by the plaintiffs-respondents; and to determine the respective rights of the parties, the civil court will have necessarily to allow the parties to lead their respective evidence; and then decide the suit on merits. It is not the case set up by the defendant-Smt. Naseeb Kaur W/o Gurtej Singh that any such order has been passed at point of time when the crop of the defendant is either sown or is growing. It is not the case set up by the defendant-Smt. Naseeb Kaur W/o Gurtej Singh that any such order has been passed at point of time when the crop of the defendant is either sown or is growing. As a matter of fact, no such adverse order has yet been passed during the trial. The application under O. 7 R. 11 CPC was not only filed at a belated stage i.e. at the defendant's evidence stage but when the suit is likely to be decided in near future. It appears that parties are at logger heads about the said water course right from the beginning. 7. The rights of the plaintiffs-respondents to secure their legal rights whatever they are, through the process of Civil Court, cannot be cut short at the anvil of Order 7 Rule 11 CPC as was sought to be made out by the present petitioner-defendant. 8. In the opinion of this Court, the learned court below was perfectly justified in rejecting the application under Order 7 Rule 11 CPC of the defendant-petitioner. The present revision petition, is therefore, found to be devoid of any merit and the party and learned court below forthwith.