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2018 DIGILAW 932 (RAJ)

Sawai Singh Bhati v. Manak Singh

2018-04-06

ARUN BHANSALI

body2018
JUDGMENT : Arun Bhansali, J. This revision petition has been filed by the petitioners aggrieved against the order dated 18.1.2018 passed by the trial court, whereby, the oral objection raised by the petitioners during course of submissions in the application under Order XXXIX Rule 1 & 2 CPC pertaining to jurisdiction of the Court, has been decided in the main suit and it has been kept open for the petitioners to raise the said objection in the suit, wherein, after taking evidence, the issue would be decided. 2. A suit for permanent injunction was filed by the respondent No.1 - plaintiff against the respondents No.2 to 4 and petitioners. Alongwith the suit, an application under Order XXXIX Rule 1 & 2 CPC was filed. 3. During the course of submissions on application under Order XXXIX Rule 1 & 2 CPC, the petitioner raised objection about the maintainability of the suit based on provisions of Section 18 of the Rajasthan Rent Control Act, 2001 ('the Act of 2001') and submitted that the jurisdiction for the subject-matter of the suit lies with the Rent Tribunal and, therefore, the plaintiff was not entitled for grant of injunction. 4. When the submission was made, the same was resisted by the plaintiff, inter alia, indicating that the suit was maintainable before the Civil Court. 5. By the impugned order dated 18.1.2018, the trial court observed that as the preliminary objection would affect the suit itself, the same was being disposed of in the suit and order was passed in the order-sheet of the suit, wherein, it was observed by the court that based on the averments made in the plaint prima facie it cannot be said that the suit was barred under the provisions of the Act of 2001 and went on to observe that the petitioners will be free to raise objection in the written statement, wherein, also the same could be decided by way of preliminary objection after the evidence of the parties is recorded and disposed of the objection. 6. 6. It is submitted by learned counsel for the petitioners that the procedure adopted by the trial court is incorrect, inasmuch as, on one hand the objection raised by the petitioner has been rejected in the suit and on the other hand the same has been kept open for the petitioners to be raised in the suit, which objection even if now raised in the suit could not be decided otherwise by the trial court. 7. With reference to the averments made in the plaint, it was submitted that the averments clearly indicates a dispute between landlord and tenant and, therefore, the jurisdiction lies with the Rent Tribunal under Section 18 of the Act of 2001 and the jurisdiction of the Civil Court is barred and, therefore, the trial court was not justified in rejecting the plea raised by the petitioners in this regard. 8. Learned counsel for the respondents supported the order impugned. It was submitted that once the objection regarding maintainability of the suit itself was raised during course of application seeking temporary injunction, the trial court was justified in dealing with the said objection in the main suit and from the plaint, it is apparent that the dispute doesn't pertain between landlord and tenant, the trial court was justified in rejecting the objection raised by the petitioner and, therefore, the order impugned doesn't call for any interference. 9. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 10. As noticed hereinbefore, the petitioners while arguing the application under Order XXXIX Rule 1 & 2 CPC, raised objections regarding the maintainability of the suit, the said aspect can always be raised while contesting the issue pertaining to prima facie case, once the said objection was raised by the petitioner, the trial court could have very well dealt with the said objection while deciding application under Order XXXIX Rule 1 & 2 CPC and there was no occasion for the trial court to deal with the said objection separately in the order-sheet of the suit. 11. Looking to the nature of objection raised and the fact that the aspect of jurisdiction of the present nature is required to be decided based on the averments made in the plaint, the observations made by the trial court that the said aspect requires evidence, prima facie also appears to be unjustified. 11. Looking to the nature of objection raised and the fact that the aspect of jurisdiction of the present nature is required to be decided based on the averments made in the plaint, the observations made by the trial court that the said aspect requires evidence, prima facie also appears to be unjustified. 12. Even if, once the objection was dealt with by the trial court in the suit itself then the trial court should not have stopped at only deciding the same prima facie and should have decided the objection whole hog, the procedure adopted by the trial court, wherein, the issue has been prima facie decided in the suit and has been kept open for the petitioners to raise while filing the written statement, cannot be approved. In view thereof, the order dated 18.1.2018 passed by the trial court, cannot be sustained. 13. Consequently, the revision petition filed by the petitioner is allowed. The order dated 18.1.2018 is quashed and set aside. 14. The petitioner would be free to file an application under Order VII Rule 11 CPC in the main suit itself and the trial court after taking response from the respondents would decide the application appropriately. Additionally, it would be open for the trial court to decide the said objection as raised by the petitioners, while deciding the application under Order XXXIX Rule 1 & 2 CPC. 15. It goes without saying that any of the observations made hereinbefore and/or the fact that the order dated 18.1.2018 has been set aside by this Court, would not prejudice the cause of either of the parties.