Rajasthan High Court - Jaipur
Jaipur Bench vs Janak Singh The Hon'Ble Supreme Court ... on 16 December, 2015
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Civil Writ Petition No.17413/2015 (Bajrang Lal Sharma v. Meena Kanwar @ Govindi & Ors.) Date of Order: 16/12/2015 PRESENT HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Mr. Anshuman Saxena, for the petitioner.
Present petition has been filed under Article 227 of the Constitution of India to assail the judgment dated 28.10.2015 rendered by the Board of Revenue for Rajasthan, Ajmer whereby the Board of Revenue had set aside the judgment dated 19.4.2010 passed by the SDO, Dudu, District Jaipur and the judgment dated 12.7.2010 passed by the Revenue Appellate Authority, Ajmer.
Respondents No.1 to 5 had filed a suit for declaration, permanent injunction and partition. They had pleaded therein that the sale deed made by their brother Tara Chand be cancelled as the same was result of fraud and deception. During pendency of the suit before the SDO, Dudu, petitioner filed an application under Order 7, Rule 11 CPC praying that the plaint be rejected. The said application was accepted by the SDO, Dudu. Aggrieved against the same, respondents No.1 to 5 filed appeal. Their appeal was dismissed by the Revenue Appellate Authority. Respondents No.1 to 5 challenged the order passed by the SDO, Dudu and the Revenue Appellate Authority, Ajmer by filing a second appeal before the Board of Revenue. The Board of Revenue relied upon the judgment rendered by the Supreme Court in Church of Christ Charitable Trust v. Ponniammal Educational Trust [2012(8) SCC 706] and Bhau Ram v. Janak Singh [2012(8) SCC 701] to hold that the plaint filed by the respondents could not be rejected by invoking provisions of Order 7, Rule 11 CPC. For accepting the appeal, the Board of Revenue had given the following reasoning:-
5. In 2012 (8) SCC 706, Church of Christ Charitable Trust v. Ponniammal Education Trust and in 2012 (8) SCC 701 Bhau Ram Vs. Janak Singh the Hon'ble Supreme Court has held that under order 7 Rule 11 of the Civil Procedure Code, the trial court only has to see whether the averments made in the plaint are barred by any law or not, or whether the plaint discloses any cause of action or not, or whether the relief claimed is under valued or not? The trial court is not required at this stage to undertake a roving or fishing enquiry. On perusal of the impugned judgment, it is clear that on jurisdictional issue revenue suit filed under section 88, 188 and 53 of the Act has been dismissed under Order 7 Rule 11 of the Civil Procedure Code. Thereafter the first appellate court has also on jurisdictional issue dismissed the first appeal and upheld the judgment /decree passed by the trial court. From perusal and consideration of AIR 1985 (SC) 577 it is clear that only on the ground of jurisdiction revenue suit cannot be dismissed in limine. From a perusal of the relevant provisions of the Civil Procedure Code also, it is clear that on the basis of jurisdictional issue provisions of Order 7 Rule 10 of the Civil Procedure Code would come into play and not the provisions of Order 7 Rule 11 of the Civil Procedure Code. On the point and arguments that the appellants have filed the regular civil suit for cancellation of the deeds, therefore, this present appeal is not maintainable, it is observed that these are subsequent developments, this court is at present seized with the appeal under section 224 of the Act in which the impugned judgment/decrees have to be considered. This court cannot consider the question whether in view of the regular civil suit having been filed, this present appeal has become infructuous. In our opinion any subsequent development cannot render the case instituted before, as infructuous. This present appeal has been filed in the year 2010 and has now come up for hearing, under no circumstances can it be held that this present appeal has become infructuous. The judgments submitted by the respondents No.8 to 10 are on point that a document takes effect from the time when it was executed and not from the time of its registration, however, at present these questions are not in issue. The Board of Revenue at this stage has to only see whether the judgments/decrees of the courts in rejecting the revenue suit summarily under Order 7 Rule 11 of the Civil Procedure Code is correct in law and fact or not. As mentioned above, both the courts below have proceeded on the jurisdictional issue to dismiss the revenue suit under Order 7 Rule 11 of the Civil Procedure Code which they cannot do so. In jurisdictional issue the provisions of Order 7 Rule 10 of the Civil Procedure Code have to be applied and complied with. The present revenue suit has been filed under section 88, 188 and 53 of the R.T. Act and these provisions can only be complied/acted on by the revenue courts and not the civil court. The valuable right of trial cannot be snatched by the trial court summarily without any authority of law. Before winding up it is necessary to note that Order 7 Rule 11 of the Civil Procedure Code provides for rejection of the plaint and not for dismissal of the plaint. While the courts below have proceeded to dismiss the plaint instead of rejecting the plaint. In view of the discussion above, it is clear that under the jurisdictional pretext the revenue suit cannot be dismissed summarily under Order 7 Rule 11 of the Civil Procedure Code. Therefore, the judgments/decrees passed by both the courts below are contrary to the settled legal position. Consequently, the present appeal deserves to be allowed.
Shri Anshuman Saxena learned counsel for the petitioner has assailed the judgment rendered by the Board of Revenue on the ground that for cancellation of sale only the respondents could approach the civil court. It is submitted that indeed, respondents have filed a civil suit. It is contended that as per the provisions of the Specific Relief Act for cancellation of sale deed only civil suit could be filed as only civil suit is maintainable. It is urged that revenue suit in the facts and circumstances of the case could not proceed.
Having heard counsel for the petitioner, this court is of the view that in the revenue suit besides declaration prayer for permanent injunction and partition was also made. Reliance placed by the Board of Revenue upon the judgments rendered by the Supreme Court in Church of Christ Charitable Trust (supra) and Bhau Ram v. Janak Singh (supra) suffer from no infirmity. No fault can be found with the reasoning propounded by the Board of Revenue. Respondents No.1 to 5 could not be non-suited for the reasons stated by the SDO, Dudu and the Revenue Appellate Authority, Ajmer. No interference is warranted while exercising jurisdiction of superintendence under Article 227 of the Constitution of India.
Hence, this present petition being devoid of merit is hereby, dismissed.
(KANWALJIT SINGH AHLUWALIA),J.
Govind /-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Govind Sharma, Sr.PA