Ku. Anushri Jain D/O Lt Asim ... vs Mrs. Anamika Jain
2022 Latest Caselaw 6182 MP

              HIGH COURT OF MADHYA PRADESH
                              1                          C.R.No.278/2021


             Ku. Anushri Jain Vs. Mrs. Anamika Jain & Ors.

Gwalior Bench Dated; 26.04.2022

     Shri Nikhil Sharma, learned counsel for the petitioner.

     Shri Ashish Saraswat, learned counsel for the respondents.

With consent heard finally.

1. The present civil revision under Section 115 of the Code of Civil

Procedure, 1908, has been preferred by the petitioner, taking

exception to the order dated 11-08-2021 passed by the II Civil

Judge Class -II, Vidisha whereby the application preferred by the

petitioner under Order VII Rule 11 of CPC, has been rejected.

2. Brief facts giving rise to the present petition are that

respondents/plaintiffs filed a suit for declaration and permanent

injunction against the petitioner/defendant No.1 in respect of the

properties description of which is given in para 4 of the plaint. In

the plaint, plaintiffs alleged that defendant No.1/petitioner is

daughter of first (divorced) wife of late Aseem Prakash Jain, who

already received the permanent alimony of Rs.4,50,000/- by virtue

of order dated 01-03-2009 passed in F.A.No.194/2007, therefore,

defendant No.1 has no right in the property of late Aseem Prakash

Jain.

3. It is stated that plaintiff No.1 is legally married wife of late Aseem

Prakash Jain and plaintiffs No.1 and 2 are sons of late Aseem

Prakash Jain. After the death of late Aseem Prakash Jain on 30-06-

HIGH COURT OF MADHYA PRADESH

2020, petitioner/defendant No.1, moved an application for mutation

and got her name mutated over the properties in question and trying

to interfere in their peaceful possession of the land, therefore, cause

of action arose to the plaintiffs and they preferred the suit before

the trial Court.

4. Present petitioner/defendant No.1 filed an application under Order

VII Rule 11 of CPC on the grounds that suit of plaintiffs is not

maintainable because according to Section 6(a) of the Transfer of

Properties Act, 1882 since petitioner was not party in the divorce

decree arrived at between the mother of petitioner and late Aseem

Prakash Jain, her rights were not in existence, therefore, divorce

decree does not curtail her rights. According to Section 257(z-2) of

the M.P. Land Revenue Code, 1959, (hereinafter referred to as "the

MPLRC"), Civil Court shall not entertain any suit/claim which

restricts performance of any duty imposed by this Code on any

Revenue Officer or other officers appointed under this Code.

5. Further the ground of Section 41(b) of Specific Relief Act, 1963

has also been raised that no suit restraining a person from

prosecuting judicial proceedings can be filed and since Revenue

Courts are not Subordinate Courts to Civil Courts, therefore, no

injunction can be granted against the Revenue Courts. To bolster

his submissions on all these grounds, reliance has been placed on

the judgments of Apex Court in the matter of Krishna Pillai Vs. HIGH COURT OF MADHYA PRADESH

Damodaran Pillai, AIR 1952 Travancore Cochin 315, Swami

Atmanand Vs. Sri Ramakrishna Tapovanam (2005) 10 SCC 51,

Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) (D) Thr.

LRs and others, AIR 2020 SC 3310, Liverpool and London S.P.

And I Assn. Ltd. V. M.V. Sea Success I and Anr. (2004) 9 SCC

512. Thus, prayed for setting aside the order of trial Court and

allowing of application preferred under Order VII rule 11 CPC.

6. Learned counsel for respondents/plaintiffs opposed the submissions

and submitted that according to divorce decree, since mother of

petitioner had received permanent alimony of Rs.4,50,000/- in a

divorce decree, therefore, rights of petitioner/defendant stood

eclipsed. Behind the back of plaintiffs, taking advantage of post of

her mother (she is Tahsildar), petitioner got her name mutated in

the revenue record and is trying to interfere in their peaceful

possession.

7. In the application preferred under Order VII rule 11 CPC, petitioner

did not refer any ground which prohibits continuation of suit and on

the basis of defence of defendant No.1/ petitioner, suit preferred by

the plaintiffs cannot be dismissed. Such application has to be

decided only on the basis of averments of plaint not on the basis of

material produced by the defendant. Thus, prayed for dismissal of

this revision petition. Reliance has been placed over the judgments

of Apex Court in the matter of Biswanath Banik & Anr. Vs. HIGH COURT OF MADHYA PRADESH

Sulanga Bose & Ors., 2022 Legal Eagle (SC) 269 and Premlata

@ Sunita Vs. Naseeb Bee & Ors. 2022 Legal Eagle (SC) 320.

8. Heard.

9. It is settled principle that application preferred under Order VII

Rule 11 CPC has to be decided on the basis of averments made in

the plaint and not on the basis of material produced by the

defendants either in the written statements or on the application

under Order VII Rule 11 CPC.

10. The grounds as pleaded by the petitioner in her application have

been elaborately dealt with by the trial Court and rightly held that

on the basis of defence of petitioner only, suit instituted by the

plaintiffs cannot be dismissed.

11. So far as the ground of Section 257 (z-2) of MPLRC is concerned,

since the suit is for declaration and permanent injunction therefore,

in view of Section 111 of MPLRC, the Civil Court is empowered to

sue the suit. Further under Section 41(b) of Specific Relief Act,

institution of suit is not barred it only deals with regard to non-

grant of injunction. Petitioner is daughter of first wife of late Shri

Aseem Prakash Jain who obtained divorce, therefore, rights of

petitioner can only be decided after conducting the trial, while

leading evidence by both the sides.

12. In the case of Kamla Vs. K.T. Eshwara Sa, (2008) 12 SCC 661,

the Apex Court held that Order VII Rule 11 of CPC has limited HIGH COURT OF MADHYA PRADESH

application. For its applicability it has to be seen whether suit is

barred under any law. Such a conclusion must be drawn from the

averments made in the plaint. What would be relevant for invoking

Order VII Rule 11 CPC are the averments made in the plaint. For

that purpose there cannot be any addition or subtraction. For the

purpose of invoking the said provision, no amount of evidence can

be looked into.

13. The case in hand is not that whether plaintiffs are entitled for any

relief or not and they would succeed or not, the core question is that

whether suit is maintainable or not. The grounds taken by the

petitioner in her application do not warrant dismissal of plaint of

plaintiff at Order VII Rule 11 CPC stage. Respective rights of the

parties in the present case cannot be crystallized on the basis of

application under Order VII Rule 11 of CPC by considering the

evidence produced along with such application. For taking

decision on the application under Order VII Rule 11 of CPC, plaint

allegations are required to be seen and from the plaint allegations, it

appears that trial can proceed for conclusive adjudication of the

controversy between the parties.

14. Scope of civil revision under Section 115 of CPC is very limited

and this Court can only see jurisdictional error or any procedural

irregularity or impropriety caused by the trial Court. Judgments

referred by the petitioner move in different factual realm and are of HIGH COURT OF MADHYA PRADESH

no help to the petitioner at this stage.

15. Considering the fact situation as well as legal position, no case for

interference is made out. No procedural irregularity and

jurisdictional error or impropriety has been indicated warranting

interference of this Court. Civil revision being bereft of merits is

hereby dismissed. Trial Court to proceed as per law.

                                                            (Anand Pathak)
Anil*                                                          Judge


        ANIL KUMAR
        CHAURASIYA
        2022.04.29
        05:02:07 -07'00'