Rajasthan High Court - Jaipur
Smt Dev Bai vs Additional Civil Judge Kota on 10 February, 2012
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur S.B.Civil Writ Petition No.1941 of 2006 Smt. Dev Bai vs. Addl. Civil Judge No.1, Kota and ors Date of Order : 10.02.2012 HON'BLE MS. JUSTICE BELA M. TRIVEDI Mr.Ravi Kasliwal for the petitioner Mr.Shailesh Prakash Sharma for the respondents-defendants By the Court:
1.The present petition is directed against the order dated 25.11.2004 passed by the learned Addl. Civil Judge (JD),No.1 (South), Kota (hereinafter referred to as 'the trial court') in Civil Suit No.356/2000, whereby the trial court has allowed the application of the respondents (original-defendants) filed under Order 7 Rule 11 rejecting the plaint of the petitioner-original plaintiff.
2.The short facts giving rise to the present petition are that the petitioner-plaintiff has filed the suit before the trial court seeking cancellation of the sale deed dated 11.6.1984 executed in favour of the defendants, by one Smt.Mangibai in respect of suit property and seeking possession of the said property. It was averred in the plaint interalia that the petitioner-plaintiff happened to be daughter of Shri Narain and Smt.Kesharbai. After the death of Kesharbai and her father Narain,the petitioner-plaintiff alone was the legal heir of her father Shri Narain. According to the petitioner-plaintiff, the possession of the plaintiff in respect of the suit land was sought to be disturbed by the said Mangibai and others in March, 1992 and at that time she came to know for the first time that said Mangibai in collusion with one Shri Pratap and the officers of revenue departments had got her name mutated in the revenue records and therefore the plaintiff had filed a suit in the revenue court against the said Mangibai and Shri Pratap under sections 88, 89 and 188 of the Rajasthan Tenancy Act, which suit was pending before the revenue court. According to plaintiff, during the pendency of the said suit, she came to know that one sale deed dated 11.6.1984 was also executed in favour of Shri Pratap by the said Mangibai. Since the said Mangibai and the said Pratap expired, the petitioner filed the suit against the heirs of said Pratap seeking cancellation of said sale deed and seeking possession of the suit property from the said defendants. The said suit was resisted by the present respondents-defendants by filing the written statement. The respondents thereafter submitted an application under Order VII Rule 11 of CPC seeking rejection of the plaint on the ground that the court had no jurisdiction to entertain the suit, hence, the plaint was liable to be rejected under Order VII Rule 11(d) of CPC. The said application came to be allowed by the trial court by the impugned order dated 25.4.2004. Being aggrieved by the said order, the petitioner-plaintiff has invoked the jurisdiction of this court under Article 227 of the Constitution of India.
3.It has been submitted by learned counsel Mr. Ravi Kasliwal for the petitioner that the trial court could not have dismissed the suit of the plaintiff under Order VII Rule 11 as there was no bar to file the suit in the civil court seeking relief for cancellation of the sale deed, under the Rajasthan Tenancy Act and only the civil court could have granted such relief. Relying upon the decision in the case of Saleem Bhai and others vs State of Maharastra and others (AIR 2003 SC 759), Mr. Kasliwal has submitted that application under Order VII Rule 11(d) could be decided by the court only on the basis of the averments made in the plaint and allegations made in the written statements would be wholly irrelevant. He has also relied upon the judgment of Rajasthan High Court in the case of Amir Mohammad vs Gafoor Ahmed Khan and others (1987(1) RLR 51), to summit that the suit for cancellation of sale deed could lie in the civil court only.
4.Per contra, the learned counsel Mr. Shailesh Prakash Sharma for the respondents-defendants, however, has vehemently submitted that the suit filed by the petitioner-plaintiff was a frivolous suit inasmuch as having lost in the revenue court for the relief of declaration of her khatedari rights, the present suit was filed by the plaintiff seeking cancellation of the sale deed executed in favour of the father of the defendants by the deceased Mangibai. According to the learned counsel for the respondents-defendants, the substantive relief sought in the present suit is for the declaration of khatedari rights of the petitioner-plaintiff, which relief could be granted only by the revenue court under section 88 of the Rajasthan Tenancy Act and therefore the suit was barred under section 207 of the said Act. He has relied upon the judgments of this court in the case of Temple of Thakur Shri Mathurdassji, Chhota Bhandar vs Shri Kanhaiyalaol and ors (2008 (2) RLW 1390 (Raj.), Hardev deceased represented by his L.Rs. Vs Goru and ors (1988(1) RLR 609) and Ashok Chauhan vs Smt. Amri Bai and Anr. (2010 (2) DNJ (Raj.) 776), in support of his submission. According to Mr. Sharma, the order passed by the trial court being in consonance with the settled legal position, this court should not interfere with the same.
5.Before adverting to the rival contentions raised by the learned counsel for the parties, it would be beneficial to reproduce the relevant provision contained under Order VII Rule 11(d) of CPC which reads as under:
Rule-11-Rejection of plaint:
The plaint shall be rejected in following cases-
(a) ..................
(b) .................
(c ).................
(d) where the suit appears from the statement in the plaint to be barred by any law;
6.From the bare reading of the said provision, it clearly transpires that the plaint could be rejected under clause-(d) of Rule 11 Order VII of CPC only where the suit appears from the statement in the plaint to be barred by any law. The said provision has been interpreted by the Apex court in case Saleem Bhai and others vs State of Maharastra and others (AIR 2003 SC 759), wherein the court has observed as under:
9.A perusal of O. VII R. 11 C.P.C. makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The Trial Court can exercise the power under O. VII R. 11 C.P.C. at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Cls (a) and (d) of R. 11 of O. VII C.P.C., the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under O. VII R. 11 C.P.C. cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court
7.In the opinion of this court, the ratio laid down by the Apex Court in case of Kamala vs K.T.Eswara Sa, AIR 2008 SC 3174, clinches the issue. It has been observed in para-15 thereof as under:
15.Order VII, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order VII, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order VII, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order VII, Rule 11 of the Code is one, Order XIV, Rule 2 is another.
8.In view of the above settled legal position, it clearly transpires that the court while considering the application under Order VII Rule 11(d) of CPC has to take into consideration only the averments made in the plaint and pleas taken by the defendants in the written statement would be wholly irrelevant at that stage. So far as the facts of the present case are concerned, the suit has been filed by the petitioner-plaintiff seeking cancellation of the sale deed executed by the deceased Mangibai in favour of the deceased Pratap, the father of the respondents-defendants. Such a prayer could be granted only by the civil court and not by revenue court. It is true that section 207 of the Rajasthan Tenancy Act bars the jurisdiction of the civil court for the suits specified in the third schedule. However, the relief claimed by the petitioner-plaintiff in the instant suit, being not specified in the said third schedule, it could not be said that the suit is barred by the Tenancy Act.
9.It was sought to be submitted by learned counsel Mr.Sharma for the respondents that the petitioner had filed the suit misusing the process of law after she failed to get any relief from the revenue court in respect of the suit filed by her for the declaration of Khatedari rights in the suit property. According to him, court should not feel helpless when the suit appears to have been filed by way of abuse of process of law and such a suit is liable to be dismissed under Order VII Rule 11 read with Sec.151 of CPC. In this regard, he has relied upon the judgment of this court in the case of Temple of Thakur Shri Mathurdassji, Chhota Bhandar (supra). However, the said judgment is of no use to the respondents in view of the legal position settled by the Supreme Court in the case Kamala vs K.T.Eshwara Sa (supra) and in case of Saleem Bhai and others (supra) laying down that only averments made in the plaint are required to be looked into for considering the application under Order VII Rule 11(d) of CPC. Whether the suit was filed misusing the process of law or not could not be decided in the application filed under Order VII Rule 11. The suit could also not be dismissed under S.151 on the ground of having been filed misusing the process of law, more particularly when there are disputed questions of facts and law involved in the case, which would require the evidence to be led by the parties. The other judgments relied upon by the learned counsel for the respondents are also not applicable to the facts of the present case inasmuch as in the case of Ashok Chauhan vs Smt. Amri Bai and Anr(supra), this court had returned the plaint under Order VII Rule 10 of CPC on the ground that the Civil Court had no jurisdiction and the same was not rejected under Order VII Rule 11. It is needless to say that the issue whether the civil court has jurisdiction or not in respect of the reliefs claimed by the petitioner-plaintiff could be decided at the time of the trial of the suit, when both the parties will have opportunity to lead their respective evidence. Further, the plaint cannot be rejected on the ground of jurisdiction under Order VII Rule 11 (d) of CPC. For rejecting the plaint under Order VII Rule 11(d) it should appear from the statements made in the plaint that the suit is barred under a particular law.
10.In that view of the matter, the trial court having decided the application under Order VII Rule 11 of CPC dehors its jurisdiction and having rejected the suit of the petitioner-plaintiff on the extraneous consideration i.e. relying on the material other than the averments made in the plaint, the said order deserves to be set aside and is accordingly set aside.
11.The petition therefore stands allowed. The suit filed by the petitioner-plaintiff is directed to be restored on file to its original number in the trial court.
(BELA M. TRIVEDI) J.
om All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Om Prakash pa