Chotharam vs Prakashchand
2021 Latest Caselaw 8967 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 162/2019

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For Petitioner(s) : Mr. Tejmal Ranka. For Respondent(s) : Mr. Awar Dan Ujjwal.

Mr. Bala Ram Kumawat.

Ms. Vaishali Parihar for Ms. Rekha Borana.

HON'BLE MR. JUSTICE ARUN BHANSALI Order 07/04/2021

This revision petition is directed against the order dated

12/9/2019 passed by Civil Judge, Bar, District Pali, whereby, the

application filed by the petitioner under Order VII Rule 11 CPC has

been rejected.

The suit was filed by the plaintiff for specific performance of

the contract and permanent injunction. The petitioner filed an

(2 of 3) [CR-162/2019]

application under Order VII Rule 11 (d) CPC inter alia claiming

that the suit was barred by limitation. It was inter alia alleged in

the application that as the plaintiff had earlier filed a revenue suit

under Section 188 of the Tenancy Act, 1955 ('the Act, 1955'),

which aspect has not been disclosed in the suit, from the

averments made in the said revenue suit it is apparent that the

suit was barred by limitation and, therefore, the plaint was liable

to be rejected.

The trial court after hearing the parties came to the

conclusion that the provisions of Order VII Rule 11 (d) CPC

provides that the plaint can be rejected based on the averments

made in the plaint and none of the documents sought to be relied

on by the defendant can be taken into consideration and that the

question of limitation was a mixed question of law and fact and

consequently rejected the application.

Learned counsel for the petitioner submitted that the trial

court was not justified in rejecting the application inasmuch as

filing of the suit before the revenue court and averments made

therein were apparent and, therefore, the plaint was liable to be

rejected as barred by limitation.

Submissions were made that merely because the plaintiff did

not disclose the said aspect in the suit cannot be a reason to

reject the application.

Reliance was placed on Dinesh Parmer & Anr. vs. Smt. Usha

Sharma & Anr. : 2016 (3) RLW (Raj.) 2428 and Annant Pal Singh

Rajput vs. Sumer Singh Rajput & Anr. : 2017 (1) DNJ (Raj.) 1).

Learned counsel for the respondent supported the order

impugned.

(3 of 3) [CR-162/2019]

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The provisions of Order VII Rule 11 (d) CPC are clear,

wherein, a plaint can be rejected 'where the suit appears from the

statement made in the plaint to be barred by any law'. It is well

settled that while considering the application under Order VII Rule

11 (d) CPC it is the plaint only, which can be looked into and not

the defense of the defendant and/or the documents of the

defendant for the purpose of deciding as to whether the suit was

barred by law.

Admittedly, the defendant-petitioner seeks the court to take

into consideration the plaint said to have been filed by the plaintiff

before the revenue court and the averments made therein for

reaching the conclusion that the suit is barred by limitation.

Taking into consideration the said plaint at the stage of

consideration of application under Order VII Rule 11 CPC would be

ex facie against the letter of law and settled law on the said aspect

and, therefore, the plea sought to be raised by the respondent in

this regard cannot be countenanced.

So far as the reliance placed on the judgments in the case of

Annant Pal Singh Rajput (supra) and Dinesh Parmar (supra) are

concerned, said judgments were delivered on peculiar facts of the

said cases and have no application to the facts of the present

case.

In view of the above discussion, there is no substance in the

revision petition and the same is, therefore, dismissed.

(ARUN BHANSALI),J 71-baweja/-

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