Rajasthan High Court - Jodhpur
Sudesh Kumar Saini vs Shri Satyanarayan Ji Mandir Dharmarth ... on 5 July, 2017
Author: Sangeet Lodha
Bench: Sangeet Lodha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision No. 86 / 2017
Sudesh Kumar Saini S/o Late Shri Purnamal, Aged About 55 Years,
By Caste Saini, Resident of Shop No.13, Tikmani Dharmashala,
Rajgarh, Teh-Rajgarh Distt- Churu, Rajasthan.
----Petitioner
Versus
Shri Satyanarayan Ji Mandir Dharmarth Turst, Post Sadulpur Disstt
Churu Through Managing Trustee Shri Santosh Kumar Tikmani S/o
Prahlad Rai Tikmani, Resident of Rajgarh, Distt- Churu Through
Special Power of Attorney Holder & Manager Shri Laxminarayan
Sharma S/o Late Shri Kashiram by Caste Brahman Resident of
Rajgarh Distt- Churu.
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. J.K.Mishra
_____________________________________________________
HON'BLE MR. JUSTICE SANGEET LODHA
Order 05/07/2017
1. This petition is directed against order dated 9.12.16 passed by the Senior Civil Judge, Rajgarh, whereby an application preferred by the petitioner under Order VII Rule 11 read with Section 151 CPC, stands rejected.
2. The respondent filed a suit for eviction and mesne profit against the petitioner-defendant before the Civil Judge, Rajgarh, Churu. The suit is being contested by the petitioner by filing a written statement thereto. During the pendency of the suit, the petitioner preferred an application under Order VII Rule 11 CPC seeking rejection of the plaint on the ground that the respondent had terminated his tenancy vide notice dated 30.11.14 and thereafter, the tenancy could not have been terminated by way of (2 of 3) [CR-86/2017] yet another notice dated 11.12.15 and therefore, the suit is liable to be dismissed. That apart, it was contended that the suit is liable to be rejected for the reasons set out in para 14 to 16 of the written statement wherein the petitioner has questioned locus standi of Shri Laxminarayan Sharma to maintain the suit on behalf of the respondent Trust. It is further contended that the suit filed is barred by principle of res judicata.
3. The application has been rejected by the court below observing that the objections raised by the petitioner can only be decided after framing the issues, on the basis of the evidence to be led by the parties. Hence, this petition.
4. Learned counsel appearing for the petitioner reiterating the stand taken before the court below submitted that the tenancy having been terminated w.e.f. 30.11.14, the suit filed on the basis of the cause of action alleged to have been accrued pursuant to the notice dated 11.12.15 is not maintainable. Learned counsel submitted that Mr. Laxminarayan Sharma who has filed the suit on behalf of the Trust has no authority to file the suit and therefore, the same was liable to be rejected. Learned counsel submitted that a suit for eviction filed by the respondent was dismissed vide judgment and decree dated 21.9.96 by the court of Munsif and Judicial Magistrate, Rajgarh and therefore, the fresh suit filed is barred by the principle of res judicata.
5. It is settled law that while deciding an application for rejection of the plaint under Order VII Rule 11(d), the court is not competent to go into correctness or otherwise of the allegations contained in the plaint. The plaint can only be rejected if from (3 of 3) [CR-86/2017] bare perusal of the statement in the plaint without any addition or subtraction it appears to be barred by law. The new facts which are brought on record by the petitioner by way of written statement filed, cannot be taken into consideration for the purpose of disposal of the application preferred under Order VII Rule 11 CPC. Obviously, all the contentious issues between the parties shall be decided by the court on the basis of the evidence to be led by the parties in accordance with law. Further, if according to the petitioner, the suit may be disposed of on an issue of law, arising in the matter, it is always open for him to make prayer before the court to decide such an issue as preliminary issue at the appropriate stage. But in any case, from perusal of the plaint, in no manner, it can be inferred that the suit as framed, is barred by law.
6. In view of the discussion above, the order impugned passed by the court below does not suffer from any infirmity, illegality or jurisdictional error so as to warrant interference by this court in exercise of its revisional jurisdiction.
7. In the result, the petition fails, it is hereby dismissed in limine.
(SANGEET LODHA), J.
aditya/-