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2019 DIGILAW 1244 (RAJ)

Jagat Pal v. Mahaveer

2019-04-25

DINESH MEHTA

body2019
JUDGMENT Dinesh Mehta, J. - The present revision petition is directed against the order dated 11.2.2019, passed by the Presiding Officer, Gram Nayalaya, Hanumangarh (hereinafter referred to as 'the learned trial Court or'the learned Court below) in Civil Case No.20/2018, vide which, the petitioner's application dated 17.1.2019, under Order VII Rule 11 of the Code of Civil Procedure has been rejected. 2. The brief facts of the case are that the applicants Mahaveer and Bal Ram (respondents No.l and 2 herein) filed a suit for mandatory injunction before the learned Court below, inter alia,seeking injunction that the defendants be restrained from constructing 'Pukka Khala' over the land mentioned in the application. The petitioner herein, who was subsequently impleaded as defendant moved an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 and requested to return the plaint as according to him, the suit was not maintainable, particularly because the Khala in question was not being constructed on the land/area alleged by the plaintiffs. 3. The learned Court below rejected the petitioner's said application dated 17.1.2019 filed under Order VII Rule 11 of the Code of Civil Procedure, inter alia, observing that the issue in this regard has already been framed and the contentions raised by the applicant can only be considered after recording of the evidence. 4. Challenging the order dated 11.2.2019 passed by the learned Court below, Mr. Salil Trivedi, learned counsel contended that the learned Presiding Officer of the Gram Nayalaya has erred in rejecting the petitioner's application dated 17.1.2019 submitted under Order VII Rule 11 of the Code of Civil Procedure, inasmuch as the Nala in question was not being constructed on the land stated by the plaintiffs. In this regard, he invited attention of the Court towards the written statement filed by the State in order to convince that the 'Pukka Nala' in question was not being raised on the land claimed by the respondents nos.1 and 2. 5. Having heard learned counsel for the petitioner and upon perusal of the impugned order, I am of the considered view that there is no error of law or of jurisdiction in the impugned order dated 11.2.2019, warranting exercise of supervisory jurisdiction. 5. Having heard learned counsel for the petitioner and upon perusal of the impugned order, I am of the considered view that there is no error of law or of jurisdiction in the impugned order dated 11.2.2019, warranting exercise of supervisory jurisdiction. It is settled proposition of law that while deciding an application under Order VII Rule 11 of the Code of Civil Procedure, the Courtis required to see the averments made in the plaint. What has been sought to be urged before this Court is, that in view of the stand of the respondent-State, it is clear that the Pukka Nala in question was not being constructed as alleged by the plaintiffs (respondents No.1 and 2 herein). 6. As noticed above, the Court below was not required to see the averments in the written statement or the stand of the defendants, while deciding the subject application under Order VII Rule 11 of the Code. That being the position, I do not find any error in the impugned order dated 11.2.2019. The present revision petition is, thus, dismissed. 7. The stay application No.523/2019 also stands disposed of.