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2013 DIGILAW 783 (RAJ)

Choutha Ram v. Shivnath Ram

2013-04-18

GOPAL KRISHAN VYAS

body2013
JUDGMENT 1. - Heard learned counsel for the parties. 2. Constitution of India, the petitioner has prayed for quashing the impugned order dated 11.5.2006 Annexure-3 whereby the application filed by the plaintiff respondent Shivnath was allowed by the trial Court and issue No.12 framed by the trial Court with regard to maintainability of the suit was deleted. 3. Learned counsel for the petitioner submits that the said issue was framed for the reason that as per Section 207 of the Rajasthan Tenancy Act, a suit with regard to agricultural land is not maintainable, therefore, the said issue was to be decided after recording evidence but trial Court allowed the application filed by the respondent plaintiff under Order 14 Rule 5 (2) CPC without considering the above aspect of the matter, therefore, the order impugned may be quashed. 4. Learned counsel appearing for the respondent plaintiff submits that earlier SB Civil Revision Petition No.214/2004 was filed by the petitioner in which the order dated 17.4.2004 passed by the District Judge, Balota in the said suit was challenged whereby the trial Court rejected the application filed under Order 7 Rule 11 read with Section 3 of the Limitation Act filed by the petitioner and it was held by this Court that the suit is maintainable. 5. Learned counsel for the respondents invited attention of this court towards the judgment dated 1.8.2005 passed by Coordinate Bench of this Court in SB Civil Revision Petition No.214/2004 in which it was specifically observed at page 8 of the judgment that the civil court is having jurisdiction to decide the controversy. Meaning thereby, once this court affirmed that civil court has jurisdiction then it was not thought proper by the trial Court to decide the issue No.12 which was framed for the purpose of maintainability of the suit. Therefore, it is submitted that there is no force in this writ petition and the same may be dismissed. 6. After hearing learned counsel for the parties, it emerges from the facts of the case that although earlier revision petition filed by the petitioner in the year 2004 was dismissed on 1.8.2005 but thereafter the issue was framed with regard to maintainability of the suit in the year 2006. 6. After hearing learned counsel for the parties, it emerges from the facts of the case that although earlier revision petition filed by the petitioner in the year 2004 was dismissed on 1.8.2005 but thereafter the issue was framed with regard to maintainability of the suit in the year 2006. therefore, learned counsel for the petitioner submits that dismissal of the earlier revision petition is not applicable in the present case because the issue No.12 which is framed by the trial Court with regard to maintainability of the suit is to be decided independently without prejudice to the earlier judgment but learned trial Court erroneously accepted the application filed under Order 14 Rule 5 CPC filed by the respondent plaintiff. In the opinion of this Court, once this Court held in the earlier revision petition that civil Court is having jurisdiction to adjudicate the controversy while deciding the application filed under Order 4 Rule 11 CPC then obviously it was not proper for the trial Court to again frame the issue with regard to maintainability of the suit. Hence, this writ petition is hereby dismissed.Writ Petition Dismissed. *******