Rajasthan High Court - Jodhpur
Smt.Bhagwati Kunwar vs Gulab Singh And Anr on 2 August, 2019
Equivalent citations: AIRONLINE 2019 RAJ 654
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision Petition No. 267/2008
Smt. Bhagwati Kunwar W/o Shri Bhawani Singh Rao, aged 30
years, resident of Rao Madra (Bhat Madra) Tehsil Gogunda,
District Udaipur
----Petitioner
Versus
1. Gulab Singh S/o Shri Devi Singh Rao
2. Shri Man Singh S/o Shri Gulab Singh Rao,
Both residents of Village Rao Madra (Bhat Madra) Tehsil,
Gogunda, District Udaipur
----Respondents
Connected With
S.B. Civil Revision Petition No. 266/2008
1. Smt. Shanker Kunwar Wd/o Shri Shambhu Singh ji Rao, aged
38 years, resident of Devana, Tehsil Rajsamand, District
Rajsamand (Raj.)
2. Rajveersingh S/o Late Shri Shambhusingh ji Rao, aged 13
years, Minor through legal guardian Smt. Shanker Kunwar Wd/o
Shri Shambhu Singh ji Rao, aged 38 years, resident of Devana,
Tehsil Rajsamand, District Rajsamand (Raj.)
3. Miss. Sharda D/o Late Shri Shambhusingh ji Rao, aged 17
years, Minor through legal guardian Smt. Shanker Kunwar Wd/o
Shri Shambhu Singh ji Rao, aged 38 years, resident of Devana,
Tehsil Rajsamand, District Rajsamand (Raj.)
4. Miss. Maya D/o Late Shri Shambhusingh ji Rao, aged 15
years, Minor through legal guardian Smt. Shanker Kunwar Wd/o
Shri Shambhu Singh ji Rao, aged 38 years, resident of Devana,
Tehsil Rajsamand, District Rajsamand (Raj.)
5. Smt. Bhagwati Kunwar W/o Shri Bhawani Singh Rao, aged 30
years, resident of Rao Madra (Bhat Madra) Tehsil Gogunda,
District Udaipur.
----Petitioners
Versus
1. Gulab Singh S/o Shri Devi Singh Rao
2. Shri Man Singh S/o Shri Gulab Singh Rao,
Both residents of Village Rao Madra (Bhat Madra) Tehsil,
Gogunda, District Udaipur
----Respondents
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(2 of 7) [CR-267/2008]
For Petitioner(s) : Mr. R.K. Thanvi, Senior Advocate
assisted Mr. Mahendra Thanvi
For Respondent(s) : Mr. Pradeep Shah & Mr. Puneet
Parihar
HON'BLE MR. JUSTICE P.K. LOHRA
Order 02/08/2019 Petitioner-defendants by these twin revision petitions have challenged two orders of even date, in different civil suits for cancellation of sale-deeds and perpetual injunction, passed by Addl. District Judge (Fast Track) No.5, Udaipur (for short, 'learned Court below'). As the lis involved and the plaintiff-respondents in both these revision petitions are common, both are heard together and disposed of by this single order.
The facts, in brief, are that plaintiff-respondents filed two civil suits for cancellation of sale-deeds and perpetual injunction against both the petitioner-defendants. In the civil suit, filed against petitioner Ms. Bhagwati Kanwar, besides perpetual injunction cancellation of sale-deed dated 1 st of February, 2007 is sought precisely on the ground that the vendor had no right, title or interest to execute the sale-deed, whereas in civil suit filed against petitioner Smt. Shanker Kanwar, cancellation of sale-deed dated 12th of July 2007 is prayed besides perpetual injunction on identical grounds. In both the suits, along with the plaints, respondent-plaintiffs also filed application under Order 39 Rule 1 & 2 CPC for temporary injunction. On behalf of petitioners, taking shelter of clause (d) of Rule 11 of Order 7 CPC separate (Downloaded on 30/08/2019 at 12:27:40 AM) (3 of 7) [CR-267/2008] applications under Order 7 Rule 11 CPC were filed in both the suits. It is, inter alia, averred in the applications that the subject-matter of both the suits relate to agricultural land and the relief prayed for is declaratory as well as perpetual injunction, therefore, suits are barred by law and such suits can only be tried by revenue Courts. In the applications under Order 7 Rule 11 CPC, petitioners urged that a suit of such nature is maintainable only before the revenue Court under Section 207 of the Rajasthan Tenancy Act, 1955 (for short "Act") and suit before a civil Court is barred by law by virtue of Section 256 of the Act.
Both the respondent-plaintiffs contested the applications submitted on behalf the petitioners.
Learned Court below heard arguments on the applications for temporary injunction as well as under Order 7 Rule 11 CPC simultaneously and by two different orders of even date allowed the applications for temporary injunction but rejected applications under Order 7 Rule 11 CPC.
It is submitted by learned Senior Counsel, Mr. R.K. Thanvi that the learned Court below has committed illegality and material irregularity in exercise of its jurisdiction while passing the impugned orders. Mr. Thanvi would urge that, essentially in respect of agricultural land, injunctory relief can be granted by the revenue Court and looking to the nature of the relief pertaining to sale-deed, which is for declaration, suit as a whole is barred by law but this aspect has not at all been examined by the learned Court below. Mr. Thanvi would contend that the learned Court (Downloaded on 30/08/2019 at 12:27:40 AM) (4 of 7) [CR-267/2008] below has failed to exercise jurisdiction so vested in it while rejecting the applications. In support his arguments, learned counsel has placed reliance on following judgments:
• Ashok Chouhan Vs. Smt. Amri Bai & Anr. [2010
(2) DNJ (Raj.) 776
• Mohanlal Vs. Ratna [AIR 1971 Raj. 164]
Alternatively, Mr. Thanvi has also contended that even if it is presumed that in both the suits cancellation of sale-deed is prayed then too plaints vis-a-vis relief for perpetual injunction are liable to be thwarted as barred by Section 256 of the Act.
Per contra, learned counsel appearing for the respondents has argued that essentially in both the suits respondent-plaintiffs have prayed for cancellation of sale-deeds of different dates and for such relief, civil Court is the only appropriate forum. Learned counsel has further submitted that for cancellation of a registered instrument, the revenue courts have no jurisdiction. It is also argued by learned counsel that the learned Court below, while repudiating applications of the petitioners under Order 7 Rule 11 CPC, has not committed any jurisdictional error which can be interfered with in exercise of revisional jurisdiction. Harping on the relief in both the suits as prayed for, learned counsel contends that in the relief clause there is a clear stipulation for cancellation of sale-deeds and not mere declaration that the sale-deeds are null and void. He, therefore, urged that the jurisdiction exercised by the learned Court below cannot be faulted within the limited scope of judicial review under Section 115 CPC. Learned counsel would contend that the learned Court below has not (Downloaded on 30/08/2019 at 12:27:40 AM) (5 of 7) [CR-267/2008] committed any illegality or material irregularity while passing the impugned orders. In support of his arguments, learned counsel has placed reliance on following judgments:
Pratapi (Smt. Vs. Jhamku & Ors. [2013(3) DNJ (Raj.) 1112] Shyam Kumar Vs. Budh Singh [1977 RLW 131] Khema & Ors. Vs. Shri Bhagwan & Ors.
[1994(2) RLW 14] Smt. Santosh & Ors. Vs. Gajendra Kumar & Ors.(CMA No.954/2010 - decided 29.08.2013 I have heard learned counsel for the parties, perused the impugned orders and also scanned record of the case.
The powers conferred on civil courts to reject plaint at the threshold are extra-ordinary powers and therefore, required to be exercised with great care and circumspection very sparingly. In normal circumstances, where a plaintiff is complaining about violation of his civil rights, the appropriate forum is civil Court for redressal of his grievances. Section 9 CPC is couched with a language so as to confer very wide jurisdiction on civil Courts to try all the suits of civil nature. Bar of jurisdiction of civil Courts cannot be lightly presumed unless it is shown that there is a bar envisaged under any statute or it can be inferred by necessary implication. It is also noteworthy that even where two reliefs are claimed by the plaintiff but upon bifurcation if it is found that the main relief can be granted by a civil Court then too it is not (Downloaded on 30/08/2019 at 12:27:40 AM) (6 of 7) [CR-267/2008] expected of the Court to relegate aggrieved party to other forum for ancillary relief.
Law is trite that while construing clause (d) of Rule 11 of Order 7 CPC, plaint has to be read as a whole and the averments made therein are required to be given meaningful construction. In these matters, well it is true that in some part of the pleadings, respondent-plaintiffs have asserted that sale-deeds are null and void vis-a-vis their rights but then a relief is also sought for cancellation of the sale-deeds, and injunctory relief is the ancillary relief.
In Shyam Kumar (supra), the Court examined the issue threadbare and held that a suit for cancellation of sale-deed of agricultural land and perpetual injunction is triable by a civil Court. Similarly, in Smt. Pratapi (supra), same view is reiterated and the Court held that civil suit is not barred for cancellation of sale-deed by virtue of Section 207 of the of the Act.
At this stage, it is desirable to examine the alternative plea of learned Senior Counsel that the suits to the extent of perpetual injunction be relegated to revenue Court and the plaints be rejected to that extent. In my view, this euphonious plea is not tenable. The intent of legislature is very clear that by resorting to Order 7 Rule 11 CPC, a plaint can be rejected as a whole and not in part. As observed hereinabove, cancellation of sale-deed is the main relief in both the suits and injunctory relief is an ancillary relief, such plea of the learned Senior Counsel is neither tenable nor can be countenanced. My this view is fortified by a judgment (Downloaded on 30/08/2019 at 12:27:40 AM) (7 of 7) [CR-267/2008] of Supreme Court in Madhav Prasad Aggarwal & Anr. Vs. Axis Bank Ltd. & Anr. [2019 DNJ (SC) 657], wherein the Court has held:
"Indisputably, the plaint can and must be rejected in exercise of powers under Order 7 rule 11(d) of C.P.C. on account of non-compliance of mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 of C.P.C. In other words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part..."
In view of foregoing discussion, the Court below while rejecting the applications under Order 7 Rule 11 CPC filed by petitioner, has not committed any illegality or material irregularity in exercise of its jurisdiction. Moreover, it is also not a case of failure in exercising or overstepping jurisdiction by the Court below.
Consequently, both these revisions petitions fail and are, hereby, rejected.
The office is directed to send record of both the civil suits as well as misc. cases to the learned trial Court forthwith.
(P.K. LOHRA),J a.asopa/-
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