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2019 DIGILAW 2625 (RAJ)

Lichhu Devi v. Champalal

2019-10-01

ABHAY CHATURVEDI

body2019
JUDGMENT Abhay Chaturvedi, J. - The present revision petition is filed against the order dated 09.08.2019 passed by learned Additional Civil Judge (Jr. Division) No.4, Jodhpur Metropolitan, Jodhpur in Civil Original Suit No.296/2013, whereby the trial Court rejected the application filed by the petitioner-defendant under Order 7 Rule 11 CPC. 2. Brief facts giving rise to this petition are that the respondent No.1-plaintiff filed a suit for specific performance of the contract against the defendant-petitioner and respondent Nos. 2 to 5 with the averment that on 10.08.1993 agreement to sale was executed by Pabudan Singh in favour of Champalal with regard to the agricultural land bearing Khasra No.114 area measuring 3 bigha 10 biswa situated at Village Chawanda Tehsil and District Jodhpur. Pabudan Singh after receipt of sale consideration handed over the possession of the land but he has not executed sale deed despite repeated requesting. Prayer was made for a specific performance of the contract. The defendants submitted written statement and denied the allegations made in the plaint and further averred that agreement dated 10.08.1993 alleged to have been executed by Pabudan Singh is a forged and fabricated document. It was further alleged that FIR No.163/2013 was registered at Police Station Jhanwar in relation to said agreement. 3. The trial Court after completing the pleadings of the parties, framed issues. Now the case is pending for plaintiff's evidence. 4. The present petitioner submitted an application under Order 7 Rule 11 CPC gor rejecting the plaint on the ground that the agreement dated 10.08.1993 alleged to have been executed by Pabudan Singh, grandfather of defendant Nos.1 and 2, is a forged document. These documents also do not bear signatures of two witnesses. The plaintiff-respondents are not entitled to get a decree of specific performance on the basis of such forged document. The plaintiff-respondent No.1 submitted reply to the application wherein, allegations were specifically denied by him. The trial Court dismissed the application vide impugned order dated 09.08.2019. Hence, this revision petition is filed. 5. Heard learned counsel for the petitioner and perused the material placed on record. 6. Learned counsel for the petitioner submitted that the agreement dated 10.08.1993 is a forged and fabricated document and on basis of such document, decree for specific performance cannot be passed by the Court. Hence, this revision petition is filed. 5. Heard learned counsel for the petitioner and perused the material placed on record. 6. Learned counsel for the petitioner submitted that the agreement dated 10.08.1993 is a forged and fabricated document and on basis of such document, decree for specific performance cannot be passed by the Court. He further submits that the disputed land was not in the name of Pabudan Singh, who allegedly executed the agreement dated 10.08.1993 in favour of the plaintiff. He submits that half of the land in question is in the khatedari of the petitioner Smt. Lichhu Devi and rest of the land is in the khatedari of respondent No.5 Madhuram. Initially, the petitioner was not impleaded as defendant in the suit, however, on the application of petitioner she was impleaded as defendant. Learned counsel for the petitioner, therefore, implored this Court to accept the revision petition and set aside the impugned order dated 09.08.2019 passed by the trial Court. 7. A perusal of the record goes to show that the plaintiffrespondent No.1 filed the suit for specific performance of the contract alleged to have been executed by Pabudan Singh. It is borne out from the record that the defendants have filed written statement and the trial Court has already framed issues and the case is at the stage of the evidence of the plaintiff. 8. It is settled principle of law that at the time of consideration of the application under Order 7 Rule 11 CPC, only the averments made in the plaint has to be seen. Objections and defences taken by the defendants are not considered at that stage. All the objections/defence which have been taken by the petitioner in the application can not be decided at the preliminary stage. Whether, the agreement dated 10.08.1993 is a genuine or forged will be decided by the Court after evidence of parties. 9. In view of the above, this Court finds no error in the order passed by the trial Court dated 09.08.2019. Hence, this revision petition filed by the petitioner being devoid of any force is hereby dismissed.