Shanti Bai vs Vradhi Chand
2021 Latest Caselaw 10592 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 251/2019

1. Shanti Bai W/o Shri Shyam Lal Patdar, Aged About 50 Years, R/o Village Gomana, Tehsil Chhoti Sadari, District Pratapgarh (Rajasthan)

2. Smt. Ramkanya W/o Shri Shrilal Anjana, Aged About 40 Years, R/o Village Gomana, Tehsil Chhoti Sadari, District Pratapgarh (Rajasthan)

3. Smt. Nirmala W/o Shri Kamal Anjana, Aged About 35 Years, R/o Village Gomana, Tehsil Chhoti Sadari, District Pratapgarh (Rajasthan)

4. Smt. Manju Devi W/o Shri Jiwan Anjana, Aged About 32 Years, R/o Village Gomana, Tehsil Chhoti Sadari, District Pratapgarh (Rajasthan)

----Appellants Versus Vradhi Chand S/o Shri Gamer Ji Patidar, R/o Village Gomana, Tehsil Chhoti Sadari, District Pratapgarh (Rajasthan)

----Respondent

For Appellant(s) : Mr. Shambhoo Singh.

For Respondent(s)        :



           HON'BLE MR. JUSTICE ARUN BHANSALI

                                    Order

12/07/2021

This appeal is directed against judgment dated 31.07.2019

passed by the Judge, Family Court, Pratapgarh, whereby the

appeal filed by the appellants against order dated 13.05.2014

passed by Civil Judge (Senior Division), Chhoti Sadari, Pratapgarh,

has been dismissed.

The suit was filed by Smt. Shanti Bai on 10.01.2011 for

injunction. During the pendency of the suit, on 06.06.2012, the

property was transferred by Smt. Shanti Bai to the appellants.

Based on the said aspect, the defendant in the suit filed

application under Order VII, Rule 11 CPC, inter alia, indicating that

(2 of 3) [CSA-251/2019]

the plaintiff now has no surviving cause of action and, therefore,

the plaint be rejected.

The application was contested by the plaintiff-Shanti Bai,

however, the trial court by its order dated 13.05.2014 came to the

conclusion that the plaint was liable to be rejected and,

consequently, rejected the plaint, inter alia on the ground that the

purchasers pendente lite have not applied to continue the suit.

The appellants filed first appeal, inter alia, questioning the

validity of the order passed by the trial court rejecting the plaint.

The first appellate court came to the conclusion that neither

the appellants got themselves impleaded as party to the suit nor

they have filed application for leave to appeal before the appellate

court and as such, came to the conclusion that the appeal has no

substance and rejected the same.

Learned counsel for the appellants attempted to make

submissions that the trial court as well as the first appellate court

were not justified in rejecting the plaint/dismissing the appeal.

It was submitted that the cause of action for the appellants

survive for seeking injunction against the defendant and,

therefore, they could have prosecuted the appeal and, therefore,

the above aspect give rise to substantial question of law.

I have considered the submissions made by learned counsel

for the appellant and have perused the order and judgment of two

courts below.

The facts are not in dispute that the suit for injunction was

filed by Smt. Shanti Bai, seeking injunction against the sole

defendant and during the pendency of the suit she transferred the

suit property.

(3 of 3) [CSA-251/2019]

An application was filed pointing out the said aspect and

ceasure of cause of action for the plaintiff, the plaintiff instead of

moving appropriate application seeking impleading of the

transferees or the transferees themselves applying for being

impleaded as party-plaintiffs to the suit, contested the application.

The trial court, came to the conclusion that the plaint was liable to

be rejected.

Whereafter, the first appeal was filed that also without

seeking leave to appeal, which also came to be rejected.

The order passed by the trial court and that of the first

appellate court appears to be fully justified in the circumstances of

the case, wherein admittedly the plaintiff having transferred the

suit property and looking to the nature of suit i.e. for injunction

simpliciter, had lost her cause of action. The appellants, instead of

taking appropriate proceedings, sought to challenge the validity of

the order passed by the trial court that also without seeking leave

to file appeal and on account of the same, the appellate court

rightly came to the conclusion that the appeal was liable to be

rejected.

Irrespective of the fact that the plaint has been rejected and

appeal has been dismissed, if the appellants had/have cause, they

could have filed a fresh suit as provisions of order VII, Rule 13

CPC envisage filing of a fresh suit for the same cause of action

after rejection of the plaint under Order Order VII, Rule 11 CPC.

In view thereof, no case for interference in the order and

judgment of two courts below is made out, the appeal is,

therefore, dismissed.

(ARUN BHANSALI),J 23-PKS/-

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