Laxman Meena And Anr vs Bhagwan Sahay Meena And Anr
2022 Latest Caselaw 542 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

             S.B. Civil Writ Petition No. 9306/2017

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For Petitioner(s)         :     Mr. R. M. Jain, Adv.
For Respondent(s)         :     Mr. N. K. Singhal, Adv.

HON'BLE MR. JUSTICE SAMEER JAIN

Judgment / Order

Reserved on 03/01/2022 Pronounced On 21/01/2022

1. By way of instant writ petition under Article 227 of the

Constitution of India challenge is made by the petitioners to the

order dated 16/05/2017 passed by the learned Additional District

& Sessions Judge No.14, Jaipur Metropolitan, Jaipur (hereinafter

referred as 'trial court') in Civil Suit No.257/2013, titled as

Bhagwan Sahai Vs. Laxman Meena.

(2 of 6) [CW-9306/2017]

2. Brief facts of the case as borne out from records of the writ

petition are that one civil suit for possession, permanent

injunction and damages was filed by the plaintiff-respondent

before the learned trial court pertaining to the disputed property

i.e. Plots No.87 & 88, Residential Scheme 11-H, Meenawala,

Jaipur.

3. As per the defendants-petitioners, the claim of the plaintiff

respondent that he had purchased one property vide agreement to

sale dated 22/01/2007 is untenable for the reason that the said

document was neither registered nor adequately stamped and

therefore, by virtue of Section 35 of the Indian Stamp Act, 1899

as well as Section 17 of the Registration Act, 1908, it cannot be

read as admissible in evidence. In support of the said claim, the

defendants-petitioners have also filed an application under Order

13 Rule 7 CPC.

4. Per-contra, the plaintiff-respondent submitted that the

present application under Order 13 Rule 7 CPC filed before the

learned trial court was merely a delay tactic to frustrate the trial

and it is also to be noted that the same objection had already

been decided by the learned trial court while dealing with the

preliminary objections raised by the defendants-petitioners in their

application under Order 7 Rule 11 CPC which was affirmed by the

High Court vide its order dated 31/07/2015 which can be analyzed

from relevant portion of the said order of the High Court dated

31/07/2015 which is reproduced as under:-

^^3- okn esa ;kphx.k }kjk ,d izkFkZUkk i= vUrxZr vkns'k&7 fu;e 11] flfoy izfØ;k lafgrk bu rF;ksa ds lkFk izLrqr fd;k x;k fd oknh la- 1 fookfnr IykV la- 88 dk Lokeh ugha gS u gh mDr IykV mlds vkf/kiR; esa gSA oknh us mDr IykV

(3 of 6) [CW-9306/2017]

dk ewy iV~Vk Hkh izLrqr ugha fd;k gSA oknh viathd`r bdjkjukek fnukad 22-01-2007 ds vk/kkj ij fookfnr IykV dk Lokeh ughaa gks ldrkA mDr bdjkjukek lk{; es xzkg~; ugha gSA okn fe;kn esa izLrqr ugha fd;k x;k gS o lEifr dk ewY;kadu Hkh lgh ugha fd;k x;k gS vr% okn vkns'k&7 fu;e 11] flfoy izfØ;k lafgrk ds rgr fujLr fd;k tkosA 11- tgkW rd okn fe;kn esa ugha gksus dk iz'u gS izkFkZuk i= vkns'k fu;e&11] flfoy izfØ;k lafgrk esa bl ckjs esa ;g vafdr fd;k x;k gS fd iathd`r foØ; [email protected] iathd`r nLrkost ds vHkko esa okn viathd`r foØ; i= ij izLrqr fd;k x;k gS tks fe;kn vf/kfu;e ds rgr vof/k ikj gks tkus ds dkj.k fof/k esa drbZ pyus ;ksX; ugha gSA okn fe;kn vf/kfu;e ds fdl izko/kku ds rgr vkSj D;ksa fe;kn esa ugha gS ;g rF; u rks ;ksX; vf/koDrk cgl ds nkSjku crk ik;s gSa u gh izkFkZuk i esa vafdr fd;s x;s gSaA 12- tgkW rd U;k; 'kqYd dh vkifÙk dk iz'u gS oknh us okn dh en la[;k&10 esa okn dk ewY;kadu ckcr~ izkIr djus dCtk [email protected]& :i;s dj ml ij U;k; 'kqyd vnk fd;k gS] blds vykok gtkZ bLreky o LFkkbZ fu"ks/kkKk gsrq ewY;kadu dk;e dj U;k; 'kqYd izLrqr fd;k gSA vkns'k&7 fu;e&11] flfoy izfØ;k izkFkZuk i= esa bl lEcU/k esa ;g dFku fd oknh us tkucw>dj fookfnr lEifr dk izpfyr nj ij lgh ewY;kadu vafdr u dj de ewY;kadu vafdr fd;k gS ;s dFku iw.kZr;k vLi"V gSA fdl izdkj ewY;kadu xyr fd;k x;k gS ;g Li"V ugha gksrk gSA bl izdkj ;g vkifÙk Hkh lkjghu gSA tks Hkh vkifÙk;kW mBkbZ xbZ gSa os vkns'k&7 fu;e&11] flfoy izfØ;k lafgrk fd ifjf/k esa ugha vkrh gSa o mBkbZ xbZ vkifÙk;kW fof/k o rF;ksa ds fefJr iz'u gSa tks dsoy lk{; ls gh r; gks ldrh gSaA**

5. It was further submitted by the plaintiff-respondent that the

learned trial court has also framed issue no.4 which is reproduced

as under:-

^^vk;k oknh dk bdjkjukek fnukad 22-01-2007, [email protected]& :i;s ds LVkEi ij gS] tks vujftLVMZ gS blfy, nkok dkfcys [kkfjt gS\**

6. In the light of the above submissions, learned counsel for the

plaintiff-respondent submitted that the impugned order dated

16/05/2017 will not cause any prejudice and the application filed

(4 of 6) [CW-9306/2017]

by the defendants-petitioners under Order 13 Rule 7 CPC is not

maintainable and the learned trial court has rightly dismissed the

said application and the present writ petition under Article 227 of

the Constitution of India cannot survive.

7. On perusal of the submissions made by learned counsels for

the respective parties and upon analysis of record of the writ

petition, this Court finds and observes as under:-

(i) It is a settled position of law that scope of Article 227 of

the Constitution of India is of very limited supervisory jurisdiction.

The same can be invoked if there is manifest error or illegality. In

disputed questions of fact, the same cannot be invoked.

(ii) It is also observed that in the present writ petition,

interim order was passed way back on 12/07/2017 which is

reproduced below:-

"Heard learned counsel for the petitioners. Issue notice of the petition along with stay application to respondent No.1 only, returnable by four weeks and may be given "dasti" to learned counsel for the petitioners, as prayed.

Till then, further proceedings of Civil Suit No.257/2013 titled as Bhagwan Sahay versus Laxman Meena & Ors. pending in the Court of Additional District & Sessions Judge No.14, Jaipur Metropolitan, Jaipur, shall remain stayed."

Vide the said interim stay order, the proceedings before

learned trial court in the civil suit were stayed and the entire

proceedings came to standstill and the said interim order is

continuing ever since.

(iii) It is also observed by this Court that in the judgment

passed by the Apex Court in Asian Resurfacing Of Road

Agency Private Limited & Anr. Vs. Cental Bureau of

(5 of 6) [CW-9306/2017]

Investigation: (2018) 16 SCC 299, it has been held that grant

of interim order should be cautiously made and the same should

not effect the expeditious trial. The Hon'ble Supreme Court has

also given directions that the interim order after lapse of six

months should be extended by a speaking order so that the

proceedings before the learned trial court are carried out speedily

and are not halted. The relevant para of the said judgment is

reproduced as under:-

"34. If contrary to the above law, at the stage of charge, the High Court adopts the approach of weighing probabilities and re-appreciate the material, it may be certainly a time consuming exercise. The legislative policy of expeditious final disposal of the trial is thus, hampered. Thus, even while reiterating the view that there is no bar to jurisdiction of the High Court to consider a challenge against an order of framing charge in exceptional situation for correcting a patent error of lack of jurisdiction, exercise of such jurisdiction has to be limited to rarest of rare cases. Even if a challenge to order framing charge is entertained, decision of such a petition should not be delayed. Though no mandatory time limit can be fixed, normally it should not exceed two-three months. If stay is granted, it should not normally be unconditional or of indefinite duration. Appropriate conditions may be imposed so that the party in whose favour stay is granted is accountable if court finally finds no merit in the matter and the other side suffers loss and injustice. To give effect to the legislative policy and the mandate of Article 21 for speedy justice in criminal cases, if stay is granted, matter should be taken on day-to-day basis and concluded within two-three months. Where the matter remains pending for longer period, the order of stay will stand vacated on expiry of six months, unless extension is granted by a speaking order showing extraordinary situation where continuing stay was to be preferred to the final disposal of trial by the trial Court. This timeline is being fixed in view of the fact that such trials are expected to be concluded normally in one to two years."

(6 of 6) [CW-9306/2017]

8. In this background, the present writ petition was taken for

final disposal and on the basis of the records, submissions made

by the respective counsels and relying upon the settled position of

law, this Court is of the view that as the issue of admissibility of

the document in evidence i.e. agreement to sale dated

22/01/2007 raised by the defendants-petitioners in their

application under Order 7 Rule 11 CPC, was considered by the

learned trial court and maintained by the High Court in its order

dated 31/07/2015, the learned trial court in its order impugned

has rightly held that the issue cannot be re-agitated and the

application under Order 13 Rule 7 CPC is not maintainable. This

Court is also of the view that the defendants-petitioners will not be

prejudiced by the said impugned order in as much as the learned

trial court has framed issue no.4, referred above, pertaining to the

agreement to sale dated 22/01/2007 and at the time of final

disposal of the civil suit, the said contention of the defendants-

petitioners will be duly considered.

9. In the light of herein above, impugned order dated

16/05/2017 is just, legal and proper and as a result, the writ

petition is liable to be dismissed.

10. The writ petition is accordingly dismissed. All pending

applications stand disposed of.

(SAMEER JAIN),J

Raghu/

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