Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 826 (RAJ)

Kiran Kanwar v. Durga Devi Padam Singh

2018-03-21

SANJEEV PRAKASH SHARMA

body2018
JUDGMENT Sanjeev Prakash Sharma, J. - Both the counsels agreed that the matter may be decided at this stage. 2. Admit. 3. The petitioners-plaintiffs referred two suits for declaration and permanent injunction which were consolidated by the SDO, Malpura. Upon notices having being issued to the respondents-defendants, an application under Order VII, Rule 11 was preferred by the respondents, which has been allowed by the SDO, Malpura vide order dated 24.11.2009 holding that the jurisdiction of the Revenue Court would not lie in relation to the question regarding adoption of the plaintiff by the respondent as also with regard to validity of the sale deed executed in favour of the respondent No.2. On the averment made by the respondents that the respondent No.1 is alive, the claim on the basis of succession could not be led and cause of action does not arise and the suits have been rejected. The order passed by the SDO has been upheld by the Revenue Appellate Authority as well as by the Board of Revenue. Hence, the present writ petition has been preferred, aggrieved thereof, by the petitioners. 4. Learned counsel for the petitioners submits that the provisions of Order VII, Rule 11 would apply and are to be considered with relation to the plaint alone and the averment made therein. While considering the application under Order VII, Rule 11 the Court is not required to examine the submissions raised in defence and the said submissions which contradict or deny the claim of the plaintiffs can only be examined by framing issues and recording the evidence. The power contained in Order VII, Rule 11 could not have been applied in the present case as the petitioner in his suit had not claimed and declared that he is an adopted son of the respondent nor there was any prayer relating to the sale deed in both the suits. Learned counsel has taken this Court to the prayer made in both the suits to submit that all the three courts below have fallen is an error in allowing the application under Order VII, Rule 11. He relied upon the judgment passed by the Supreme Court as reported in the case of Saleem Bhai and Others v. State of Maharashtra and Others , (2003) AIR SC 759. 5. He relied upon the judgment passed by the Supreme Court as reported in the case of Saleem Bhai and Others v. State of Maharashtra and Others , (2003) AIR SC 759. 5. Per contra, learned counsel for the respondents submits that from the plain reading of the contents of the plaint of both the suits, it is apparent that no cause of action arises for filing suit for declaration relating to the land in view of position that the respondent No.1 who was having the land recorded in her favour and she was alive, the claim of the petitioner for succession could not be made out and the courts below have, therefore, rightly allowed the application under Order VII, Rule 11. Learned counsel further submits that after passing of the impugned orders, the petitioners have preferred civil suit also with regard to the cancellation of sale deed exeucted to the defendant-respondent No.2. 6. Having heard both the counsel and after examining the facts as have come on record and after also looking into the averments made by the petitioners in both the plaints, I find that there was no occasion for the courts below to have allowed the application under Order VII, Rule 11, CPC on the basis of the application moved by the respondents. It is apparent that in the application moved under Order VII, Rule 11, CPC, the respondents-defendants have raised issues relating to the petitioner plaintiff being not adopted son of Durga Devi and have also raised pleadings relating to the land having been sold by registered sale deed in favour of the respondent No.2. The cause of action as alleged by the petitioner in his original suit that the respondent No.1 is likely to sell out the property, is thus made out even from the averments made by the respondent in the application under Order VII, Rule 11, CPC. 7. In the circumstances, I find that the revenue authorities have failed to take into consideration the facts to invoke the provisions under Order VII, Rule 11, CPC. Supreme Court in the case of Saleem Bhai and Others v. State of Maharashtra and Others , (2003) AIR SC 759 has considered the scope of orders under Order VII, Rule XI, CPC as under:- "7. Supreme Court in the case of Saleem Bhai and Others v. State of Maharashtra and Others , (2003) AIR SC 759 has considered the scope of orders under Order VII, Rule XI, CPC as under:- "7. The short common question that arises for consideration in these appeals is, whether an application under Order VII, Rule 11, C.P.C. ought to be decided on the allegations in the plaint and filing of the written statement by the contesting defendant is irrelevant and unnecessary. 8. Order VII, Rule 11, C.P.C. reads 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 by 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, failed 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 great injustice to the plaintiff. 9A. A perusal of Order VII, Rule 11, C.P.C. makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order VII, Rule 11, C.P.C. at any state of the Suit- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. The trial court can exercise the power under Order VII, Rule 11, C.P.C. at any state of the Suit- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Rule 11 of Order VII, C.P.C., there averments in the plaint are germane/ the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order VII, Rule 11, C.P.C. cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the court as well as procedural irregularity. The High Court, however, did not advert to these aspects." 8. In the judgment reported in The Central Provident Fund, Commissioner, New Delhi and Others. v. Lala J.R. Education Society and Others , (2016) 10 JT 524 , the provisions have been reiterated and it has been held that at the stage of Order VII, Rule 11 only the pleadings in the plaint shall be taken into consideration and nothing else and the averments made in the written statement or submissions of the respondents-defendants could not have been taken into consideration while deciding the application. This Court also has taken similar view in S.B.C.W.P. No.20841/2017 (Nanagram and Ors. v. Kajodmal Choudhary and Others.), decided on 30.01.2018. 9. In view thereof, the writ petition is allowed. The orders passed by the Revenue Courts below dated 24.11.2009 passed by the SDO, Malpura and the appellate order passed by the Revenue Appellate Authority dated 22.02.2016 and the order of Board of Revenue dated 29.08.2017 are quashed and set-aside. The SDO, Malpura is directed to decide both the suits preferred by the petitioners on merits after recording evidence as required under the law. No costs.