Durga Shankar Sharma vs Pushpa Sharma
2021 Latest Caselaw 5019 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 12/2021

1. Durga Shankar Sharma S/o Khem Raj, Aged About 70 Years, 39, Kast Kala Marg, Kheradiwara, Udaipur

2. Yamini Sharma D/o Durga Shankar Sharma, Aged About 26 Years, 39, Kast Kala Marg, Kheradiwara, Udaipur

3. Lavisha Sharma D/o Durga Shankar Sharma, Aged About 23 Years, 39, Kast Kala Marg, Kheradiwara, Udaipur

----Petitioners Versus Pushpa Sharma W/o Ratan Lal Suthar, Aged About 67 Years, 38, Kast Kala Marg, Kheradiwara, Udaipur

----Respondent

For Petitioner(s) : Mr. Durga Shanker Sharma, petitioner No.1 in person For Respondent(s) :

HON'BLE MR. JUSTICE ARUN BHANSALI

Order

23/02/2021

This revision petition is directed against the order dated

20/1/2021 passed by Civil Judge (South), Udaipur City, Udaipur,

whereby, the application filed by the petitioners under Order VII

Rule 11 CPC has been rejected.

The suit was filed by the respondent - plaintiff for mandatory

& permanent injunction on 17/5/2014 against the petitioner no.1,

her brother, in relation to plot no. 199, Block - A, Chitrakoot

Nagar, Bhuvana, Udaipur. It was indicated that the defendant, her

brother, was somehow trying to illegally take possession of the

plot in question and was threatening the plaintiff for registering

the plot in his name and has indulged in removing the gate and

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demolishing the wall. It was alleged that the defendant, who is a

lawyer, has threatened that by concocting the documents he

would take possession of the plot. Based on the said allegations, it

was indicated that the cause of action finally arose on 5/5/2014

when again threat was given and extreme misbehaviour was done.

Based on the said submissions, relief was claimed for permanent

injunction against the defendant not to trespass over the plot in

question and not to interfere with the plaintiff's possession and by

way of mandatory injunction, to get the gate and wall

reconstructed.

The plaint was got amended by impleading petitioner nos. 2

and 3, daughters of petitioner no.1, based on the subsequent

event, whereby, the petitioner no.1 transferred the plot in

question to petitioner nos. 2 and 3 by sale deed dated 26/5/2014.

Written statement was filed by the petitioner no.1 inter alia

claiming that the plaintiff had executed an agreement to sell dated

25/7/2012 qua the plot in question in his favour and on 15/2/2013

the Power of Attorney was executed in his favour.

Further submissions were made that the consideration was

paid by petitioner no.1 to the plaintiff and that he has been in

possession of the plot in question ever since. Thereafter, he has

transferred the plot in favour of defendant nos. 2 and 3.

During the pendency of the suit, the petitioner first filed an

application under Section 151 CPC requiring the plaintiff to pay

court fees based on the market value of the property, which

application was rejected, which was carried in revision before this

Court, wherein, on 26/5/2015, the Court directed framing of

preliminary issue on the said aspect. Based on which, issue no. 3-

A was framed by the trial court, which came to be decided on

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29/5/2018 by the trial court and it required the plaintiff to make

payment of requisite court fees.

The order was challenged before this Court in S.B.Civil Writ

Petition No. 14035/2018 by the plaintiff, which was allowed on

18/11/2020 by this Court and the order passed by the trial court

was set aside.

Now the defendants have filed an application under Order VII

Rule 11 CPC inter alia on the ground that simple suit for injunction

was not maintainable and the same was liable to be dismissed.

The trial court, after hearing the parties, came to the

conclusion that as to under what provision the suit was barred has

not been indicated, the issues have been framed and the suit is

pending at the stage of evidence since the year 2017 and

consequently rejected the application.

It is submitted by the petitioner no.1, who has appeared in

person, that the trial court was not justified in rejecting the

application under Order VII Rule 11 CPC inasmuch as the

defendants are in possession of the suit property and as such a

simple suit for injunction cannot be maintained.

Further submissions have been made that only in the

circumstances as laid down in the case of Anuthula Sudhakar vs.

P. Buchi Reddy : (2008) 4 SCC 594 the suit for injunction can be

maintained, which are not available in the present case and,

therefore, the trial court was not justified in rejecting the

application.

Further attempts were made to rely on the provisions of

Section 53-A of the Transfer of Property Act, 1882 ('the Act,

1882') to contend that the petitioners are in possession of the plot

in question in part performance of the agreement and, therefore,

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also the suit is not maintainable and, therefore, the order

impugned passed by the trial court deserves to be set aside and

the plaint deserves to be rejected.

I have considered the submissions made by petitioner no.1,

who has appeared in person, and have perused the material

available on record.

It is well settled that the application under Order VII Rule 11

CPC is required to be adjudicated based on the averments made in

the plaint and the defense sought to be raised by the defendants

cannot be looked into for determining the said application. A

perusal of the amended plaint nowhere reflects that the plaintiff

has averred anywhere that the petitioners are in possession of the

plot in question, which would make her suit for injunction not

maintainable on any of the grounds sought to be alleged by the

petitioners.

This Court while deciding the issue of valuation of the suit

and court fees has come to the conclusion that the court fees

paid, based on the suit for injunction, was sufficient.

In view thereof, it cannot be said that the suit as filed by the

plaintiff was barred on the ground alleged.

So far as the judgment in the case of Anathula Sudhakar

(supra) is concerned, the issue based on the aspects laid down in

the said judgment can only be determined after the parties lead

evidence and not in abstract, based on the averments made in the

plaint, which averments, as noticed hereinbefore, do not bring the

case within the parameters of the said judgment.

The plea raised based on Section 53-A of the Act, 1882 is

again by way of defense and cannot be made subject matter of

the application under Order VII Rule 11 CPC and, therefore, on

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that count also the plea, though not raised before the trial court,

has no basis.

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

revision petition and the same is, therefore, dismissed.

(ARUN BHANSALI),J

9-baweja/-

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