Suresh Kumar vs Shree Satyanarayan Ji Mandir ...
2021 Latest Caselaw 9167 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 90/2019

Suresh Kumar S/o Prahlad Ram, Aged About 51 Years, R/o Mohalla Kumharan, Near Bhadra Railway Line, Rajgarh, Tehsildar Rajgarh, District Churu.

----Petitioner Versus Shree Satyanarayan Ji Mandir Dharmarth Trust, Post Sadulpur District Churu Through Its Managing Trusty Santosh Kumar Tikmani S/o Prahladrai Tikmani, R/o Rajgarh, Tehsil Rajgarh, District Churu Currently Residing At Shikohabaad District Faizabad (U.p.) Through Power Of Attorney And Manager Laxminarayan Sharma S/o Late Kashiram, R/o Rajgarh, Tehsil Rajgarh, District Churu.

----Respondent

For Petitioner(s) : Mr. Manish Shishodia For Respondent(s) : Mr. Lalit Pareek for Mr. Sharad Kothari

HON'BLE MR. JUSTICE ARUN BHANSALI Order

09/04/2021

This revision petition is directed against order dated

17.05.2019 passed by Civil Judge, Rajgarh, District Churu,

whereby, the application filed by petitioner under Order VII Rule

11 CPC has been rejected.

The suit for possession was filed by the respondent-Trust

against the petitioner.

An application under Order VII Rule 11 CPC was filed with

the averments that the suit was barred by law as the requisite

notice under Section 106 of the Transfer of Property Act, 1882

('the Act'), had not been given, the suit could not have been filed

based on power of attorney and that documents as required have

not been filed alongwith the plaint.

(2 of 4) [CR-90/2019]

The application was contested by the plaintiff.

After hearing the parties, the trial court came to the

conclusion that on the pleas raised by the defendant, already

issues have been framed and that the said issues can only be

determined after the parties lead their evidence and consequently

rejected the application.

Learned counsel for the petitioner attempted to make

submissions that the trial court was not justified in rejecting the

application filed by the petitioner as the suit was on its face barred

by law.

Learned counsel for the respondent with reference to order

passed by a Co-ordinate Bench of this Court in Sudesh Kumar

Saini v. Shri Satyanarayan Ji Mandir Dharmarth Trust : S.B. Civil

Revision Petition No.86/2017 decided on 05.07.2017, which order

was passed in a similar nature suit filed against the same plaintiff-

Trust by another tenant, made submissions that the similar pleas

raised earlier were rejected in the said suit and the order has been

upheld by this Court and, therefore, the revision petition deserves

to be dismissed.

I have considered the submissions made by learned counsel

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

This Court in Sudesh Kumar Saini (supra), in a case where

similar pleas were raised, inter alia came to the following

conclusion:

"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.

(3 of 4) [CR-90/2019]

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 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

(4 of 4) [CR-90/2019]

interference by this court in exercise of its revisional jurisdiction.

7. In the result, the petition fails, it is hereby dismissed in limine."

A perusal of the above indicates that issues sought to be raised by the petitioner already stands concluded by the said order, wherein, similar nature order passed by the trial court was upheld.

In view of the order in the case of Sudesh Kumar Saini (supra), no case for interference in order impugned is made out. The revision petition has no substance. The same is, therefore, dismissed.

(ARUN BHANSALI),J 4-Sachin/-

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