Jeevan Ram vs Lrs Of Joraram
2021 Latest Caselaw 2443 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 36/2020 Jeevan Ram S/o Shri Chunni Lal Indalia, Aged About 64 Years, R/o V.p. Badhnu, Tehsil Nokha, District Bikaner, Rajasthan.

----Petitioner Versus

1. Lrs Of Joraram, Through Its Legal Representative- 1/1. Heeralal S/o Late Shri Joraram, R/o Joravarpura, Tehsil Nokha, District Bikaner, Rajasthan.

2. Sugni Devi W/o Late Shri Chunnilal Indalia, R/o V.p.

Badhnu, Tehsil Nokha, District Bikaner, Rajasthan.

3. Bhanwarlal S/o Late Shri Chunnilal Indalia,, R/o V.p.

Badhnu, Tehsil Nokha, District Bikaner, Rajasthan.

4. Lichmanram S/o Late Shri Chunnilal Indalia, R/o V.p.

Badhnu, Tehsil Nokha, District Bikaner, Rajasthan.

                                                                ----Respondents


For Petitioner(s)        :     Dr. Nupur Bhati.
                               Mr. Sandeep Soni.
For Respondent(s)        :     Mr. G.R. Goyal


            HON'BLE MR. JUSTICE ARUN BHANSALI
                           Order

29/01/2021

This revision petition is directed against the order dated

21.12.2019 passed by the Additional District Judge No.3, Bikaner,

whereby the application filed by the petitioner under Sections 10 &

11 of the Rajasthan Court Fees & Suit Valuation Act,1961 ('the

Court Fees Act') and under Order VII, Rule 11 CPC, have been

rejected.

The suit was filed by the respondent No.1 seeking permanent

injunction, inter-alia, on the ground that he was in possession of

the suit property and that the defendant Nos. 1 to 5 came on the

suit land alongwith one Ramnarayan and threatened that he will

(2 of 4) [CR-36/2020]

be dispossessed. Based on the said submission, prayer for

permanent injunction was made in the suit.

The petitioner and other defendants filed an application

under Sections 10 & 11 of the Court Fees Act, inter-alia, on the

ground that the court fees paid was deficient and therefore, the

suit was liable to be dismissed and application under Order VII,

Rule 11 CPC, claiming that the plaint was barred by law and as the

plaint did not disclose any cause of action, the same was liable to

be rejected.

The trial court, after considering all the issues as raised,

came to the conclusion that there was no substance in the

application filed, inasmuch as, the land in question was converted

from agriculture to abadi and therefore, the objection based on

provisions of Section 42(b) of the Rajasthan Tenancy Act, 1955

('the Act') had no application, the allegation that the plaint was

barred under the provisions of Order XXIII, Rule 1(4) CPC could

not be taken into consideration at the stage of application under

Order VII, Rule 11 CPC and with respect to the plea raised

regarding the plaintiff being not in possession and filing suit for

injunction only, it was held that as the said aspect of possession

itself was in dispute, the same also could not be determined at the

stage of application under Order VII, Rule 11 CPC.

Qua the court fees, it was held that only account of deficient

court fees, plaint cannot be rejected as under the provisions of

Order VII, Rule 11(b) CPC only if court fee is not paid, after being

called upon to pay the deficient fees, that the plaint can be

rejected.

Learned counsel for the petitioner made submissions that the

trial court was not justified in rejecting the application filed by the

(3 of 4) [CR-36/2020]

defendants. It was submitted that the suit was barred under the

provisions of Section 42(b) of the Act and that the earlier suit,

which was filed for similar relief, was withdrawn without any

liberty and therefore, the present suit was liable to be dismissed.

Further, simple suit for injunction in absence of possession was

also liable to be rejected.

Learned counsel appearing for the respondent-plaintiff

supported the order impugned.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record

and have also perused a copy of the plaint, which was made

available by learned counsel for the petitioner.

A perusal of the plaint indicates that the plaintiff indicated

that the suit property was part of abadi area, which aspect was

determined in previous proceedings held between the parties.

Further submissions were made that the plaintiff was

threatened by the defendants for dispossession from the suit

property and based on the same, permanent injunction was

sought.

The various pleas, which have been raised by the petitioner,

claiming that the land in question was agriculture in nature and

therefore, the allegations made regarding the transfer by

defendants No.1 to 5, who were members of Scheduled Caste to a

Non-Scheduled Caste person, was barred by provisions of Section

42(b) of the Act, the suit was barred by provisions of Order XXIII,

Rule 1(4) CPC on account of withdrawal of the previous suit

without seeking liberty and that the plaint did not disclose any

cause of action as a simple suit for possession in absence of

possession over the suit property was not maintainable, were

(4 of 4) [CR-36/2020]

based on certain premise i.e. the land was agricultural and that

the petitioner-defendant was in possession of the land and that

the previous suit, which was withdrawn, pertained to the same

cause of action, however, all these aspects could not taken into

consideration at the stage of application under Order VII, Rule 11

CPC, inasmuch as, it is well settled that while considering an

application under Order VII, Rule 11 CPC only the plaint

allegations needs to be looked into and the defence on part of the

defendants cannot be taken into consideration at this stage.

Reference may be made to the judgment of Hon'ble Supreme

Court in Saleem Bhai & Ors. v. State of Maharashtra & Ors.: AIR

2003 SC 759.

In view thereof, the various pleas raised in the application

under Order VII, Rule 11 CPC have rightly be negated by the trial

court.

So far as, the issue based on the valuation of the plaint is

concerned, the said aspect would be determined by the trial court

at appropriate stage once such an objection is taken in the written

statement and if any determination is made against the plaintiff

and the court fees are not paid, then the provisions under Order

VII, Rule 11(b) CPC would came into force. Prior to the said stage

it cannot be said that the plaint was liable to be rejected.

In view of the above discussion, the order passed by the trial

court does not call for any interference. There is no substance in

the revision petition, the same is, therefore, dismissed.

(ARUN BHANSALI),J

30-Rmathur/-

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