Girvar Singh vs Sultan Singh (2023/Rjjd/006704)
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[2023/RJJD/006704]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 159/2022

Girvar Singh S/o Late Shri Sher Singh Ji, Aged About 83 Years, By Caste Rajput, R/o Sher Vilas, Opposite Officers Mess, Ratanada, Air Force Road Jodhpur.

----Petitioner Versus

1. Sultan Singh S/o Late Shri Swaroop Singh, B/c Rajput, R/o Sher Vilas, Opposite Officers Mess, Ratanada, Air Force Road, Jodhpur.

2. Lrs Of Lal Singh, S/o Late Shri Sher Singh Ji, B/c Rajput, Through His Legal Representatives-

2/1. Dhirendra Singh S/o Late Shri Lal Singh Ji, By Caste Rajput, R/o Sher Vilas Opposite Officers Mess, Ratanada Air Force Road, Jodhpur.

2/2. Prithvipal Singh S/o Late Shri Lal Singh Ji, By Caste Rajput, R/o Sher Vilas Opposite Officers Mess, Ratanada Air Force Road, Jodhpur.

2/3. Smt. Nirmala Kumari W/o Late Shri Gajendra Singh, By Caste Rajput, R/o Sher Vilas Opposite Officers Mess, Ratanada Air Force Road, Jodhpur.

2/4. Jyoti Rathore W/o Shri Yuvraj Singh, By Caste Rajput, R/o Sher Vilas Opposite Officers Mess, Ratanada Air Force Road, Jodhpur.

2/5. Divya Rathore D/o Late Shri Gajendra Singh, By Caste Rajput, R/o Sher Vilas Opposite Officers Mess, Ratanada Air Force Road, Jodhpur.

2/6. Vijendra Pratap Singh S/o Late Shri Gajendra Singh, By Caste Rajput, R/o Sher Vilas Opposite Officers Mess, Ratanada Air Force Road, Jodhpur.

2/7. Smt. Mahendra Kumari D/o Late Shri Lal Singh, W/o Shri Dineshwar Pal Singh, By Caste Rajput, R/o Sir Pratap Colony, Near Sati Mata Temple. Air Force, Ratanada, Jodhpur.

3. Raj Kanwar W/o Late Shri Swaroop Singh, By Caste Rajput, R/o Sher Vilas, Opposite Officers Mess, Ratanada, Air Force Road, Jodhpur.

----Respondents

[2023/RJJD/006704] (2 of 11) [CR-159/2022]

For Petitioner(s) : Mr. Hari Singh, son of petitioner present in person For Respondent(s) : Mr. Sultan Singh respondent No.1 present in person Mr. Prithvipal Singh respondent No.2/2 present in person

HON'BLE MS. JUSTICE REKHA BORANA

Order

16/03/2023

In the present matter, on 06.01.2023, with the consent of

learned counsels for the parties, the revision petition was directed

to be listed for final hearing on 20.01.2023. On 20.01.2023, the

matter was directed to be listed on 24.02.2023. On 24.02.2023,

none of the counsels appeared as they were abstaining from work.

Mr. Sultan Singh, respondent No.1, was present in person on that

date and he submitted that because of the interim order operating

in the matter, the complete proceedings have been stayed and he

is suffering an irreparable injury therefore, the matter may be

heard. In view of the submissions made and in view of the fact

that the counsels were abstaining from work, in the interest of

justice, the matter was directed to be listed on 09.03.2023. On

09.03.2023 also, none of the counsels appeared but Mr. Sultan

Singh, respondent No.1 was present in person. He again

requested the matter to be heard but again on that date as none

had appeared for the petitioner, in the interest of justice, the

matter was directed to be listed on 13.03.2023. However, it was

made clear on that date that even if none appears for the

petitioner on the next date, matter would be heard.

[2023/RJJD/006704] (3 of 11) [CR-159/2022]

On 13.03.2023, Mr. Hari Singh son of petitioner- Girvar Singh

remained present in person and respondent No.1 Mr. Sultan Singh

as well as respondent No.2/2 Prithvipal Singh were also present in

person. A request was made by Mr. Hari Singh that he would

submit written synopsis and the citations relied upon by him by

the next date therefore, two days' time may be granted to him for

the purpose. In view of the request made, time was granted to

both the parties to submit written synopsis along with the citations

relied upon by them and the matter was directed to be listed on

16.03.2023 i.e. today.

Today, Mr. Hari Singh son of petitioner-Girvar Singh is

present in person. Mr. Sultan Singh respondent No.1 and

Mr. Prithvipal Singh respondent No.2/2 are also present in person.

Written synopsis as well as the judgments relied upon by the

petitioner as well as respondent No.1 have been submitted.

It has been submitted in the written synopsis by the

petitioner that the said synopsis has been prepared and being filed

by himself as the counsel showed his inability to do so because of

the strike of lawyers. A perusal of the synopsis as submitted

shows that the same comprises of all the possible grounds which

could be raised by the petitioner and all the judgments as relied

upon in support of the contentions have been filed along with the

written synopsis. So far as the strike of lawyers is concerned, it is

relevant to note that the lawyers are abstaining from work since

19.02.2023 and after that the present matter has been listed

thrice before the Court. Only in the interest of justice, the matter

was adjourned from time to time. Today, both the contesting

parties are present before the Court and even the written synopsis

[2023/RJJD/006704] (4 of 11) [CR-159/2022]

along with the citations as relied upon by them have been

submitted, therefore, this Court is not inclined to adjourn the

matter any further.

Petitioner has relied upon the following judgments:

1. Pukhraj Soni vs. Nisha Citlangiya; CSA No.103/2018 decided by Rajasthan High Court on 24.10.2018.

2. Sakuntala Devi vs. Kamlesh; Second Appeal (D) No.132 of 2016 decided by Allahabad High Court on 02.05.2016.

3. T.Arivandandam vs. T.V.Satyapal; 1977 (4) SCC 467

Respondents have relied upon the following judgments:

1. My Palace Mutually Aided Co-operative Society vs. B.Mahesh& Ors.; Civil Appeal No.5784 of 2022 (@ SLP (Civil) No.7015/2022) decided on 23.08.2022

2. Padam Sen & Anr. vs. The State of Uttar Pradesh; AIR 1961 Supreme Court 218.

I have gone through the written synopsis as submitted by

both the parties and even the judgments relied upon by them.

The present revision petition has been preferred against the

order dated 18.08.2022 passed by the Additional Civil Judge No.2,

Jodhpur Metropolitan (for short, hereinafter referred to as,

'learned Court below') whereby the application under Section 151,

CPC preferred by the defendant-Girvar Singh has been rejected.

The brief facts of the case are as under:

A suit for permanent injunction was preferred by plaintiff-

respondent No.1-Sultan Singh with the submissions that the

plaintiff and the defendants are the joint owners of the suit

property and the property remains undivided till date. As

defendant Nos.2 & 3 are in the process of selling out the

unpartitioned property, they may be restrained from doing so.

[2023/RJJD/006704] (5 of 11) [CR-159/2022]

Further a prayer for restraining the defendants from alienating,

transferring, selling the property and from raising any kind of

construction over the same was made.

The defence of the defendants had been that the property

was not an unpartitioned property as the same had been

partitioned way back in the year 1951 before the Patta Officer and

after the said partition, all the share holders were in possession of

their respective shares. It was further prayed that the simpliciter

suit for injunction without a relief of declaration being prayed for,

was not maintainable and therefore, a prayer for dismissal of the

suit was made.

In the said suit, evidence was led by the plaintiff and after

completion of the plaintiff evidence, an application under Order 7

Rule 11, CPC was preferred by defendant-Girvar Singh with the

submissions that the plaintiff was very well in knowledge of the

fact that the property had further been sold to several persons by

the defendants and without praying for cancellation of those sale-

deeds, the present suit simpliciter for injunction was not

maintainable. It was further submitted in the application that the

suit property was partitioned in the year 1951 and the said fact

being an admitted fact, the suit being frivolous and being barred

by law, deserves to be dismissed.

The application under Order 7 Rule 11, CPC as preferred by

the defendant No.1 was rejected in the year 2017 and the suit

proceedings went on for defendants' evidence. But before the

defendant evidence could be led, the present impugned

application under Section 151, CPC was preferred by the

defendant No.1 with the averments that respondent No.1-Sultan

[2023/RJJD/006704] (6 of 11) [CR-159/2022]

Singh did not raise any objections to the subsequent sale-deeds

executed by Girvar Singh and further that he did not object to the

agreement/settlement dated 24.11.2005 and therefore, in view of

the fact that the subsequent sale-deeds were never challenged

and the partition of the year 1951 was admitted, the present suit

being a frivolous one be dismissed at that stage itself. It is

against the rejection of the said application under Section 151,

CPC that the present revision petition has been filed.

The learned Court below has specifically held that it is the

settled proposition of law that an application under Section 151,

CPC can be entertained and a relief on the same can be granted

only in cases where no alternative provision of law or no

alternative relief is provided under the law for the said purpose.

The Court below has specifically held that for the prayer as made

in the said application, the provision of Order 7 Rule 11, CPC is

very well available and therefore, the application under Section

151, CPC cannot be entertained for the said purpose. Further, an

application under Order 7 Rule 11, CPC had already been

preferred by the defendants and the same was rejected way back

in the year 2017 therefore, the present application under Section

151, CPC on the same grounds in the year 2019 could not be

entertained.

Before proceeding on further, a reproduction of contents of

the application under Order 7 Rule 11 read with Section 151, CPC

as preferred by the defendants in the year 2015 is essential, which

is as follows:

"çfroknh la- 1 dh vksj ls fuEu çkFkZuk i= is'k gS %& 1- ;g gS fd oknh usa mijksä okn çLrqr fd;k] mä okn ds yfEcr jgrs oknh usa o çfroknh jktdaoj o ykyflag o çfroknh

[2023/RJJD/006704] (7 of 11) [CR-159/2022]

fxjojflag oxSjkg ds e/; fnukad 24-11-05 dks ,d [email protected] fu"ikfnr gqvk] mDr [email protected] fu"ikfnr gksus ds i'pkr~ oknh Lo;a us o çfroknh jktdaoj o ykyflag usa feydj çfroknh fxjojflag dh tehu ekudj fooknxzLr Hkwfe dks tfj;s jkthukek ds fxjojflag ds vkeeq[R;kj gfjflag ds ekQZr jktw iVsy o Jherh iq"ik dksa cspku djuk r; dj bdjkjukek fnukad 24&11&05 dks fu"ikfnr fd;k] mä bdjkjukek fu"ikfnr gksus ds i'pkr gfjflag us fxjojflag çfroknh dsa vkeeq[R;kj dh gSfl;r ls oknh o çfroknh jktdaoj o ykyflag us feydj mä oknxzLr Hkwfe ds dbZ jftLVMZ cspkuukesa iq"ik pkS/kjh o jktw iVsy ds dgs vuqlkj fu"ikfnr djok;s tks i=koyh ij çn'kZ A-15 ls çn'kZ A-23 gS] mä cspkuukeksa ls çkIr jkf'k dks ekfQd [email protected] fnukad 24&11&2005 esa r; vuqlkj jde oknh o çfroknh jktdaoj] ykyflag o j.kthrflag us çkIr dh] mä çn'kZ A-15 ls çn'kZ A-23 cspkuukeksa dh Hkwfe ij [kjhnkjksa us iDds edku cukdj jgokl çkjaHk dj fn;k vkSj ikuh fctyh ds dusD'ku Hkh çkIr fd;s gS tks çn'kZ A 51 ls çn'kZ A 62 gS ,oa 'ks"k Hkwfe dks gfjflag us iq"ik pkS/kjh o jktw iVsy dksa cspku dj bdjkjukesa ls jkf'k çkIr dj dCtk lqiqnZ dj fn;k gS vkSj iwoZ esa mijksä of.kZr fu"ikfnr gks pqds cspkuukesa vkt ls yxHkx 8&10 lky iqjkus gks pqds gS vkSj mä cspku i=koyh ij Hkh ekStwn gS] tks o"kZ 2009 ls ekStwn gS vkSj oknh us mä cspkuukeksa dks fujLr djokus vFkok fdlh Hkh çdkj dh dksbZ dkuwuh dk;Zokgh mä [kjhnnkjksa o cspku bdjkj ls [kjhnlqnk] dCtklqnk ds fo:) ugha dh gS vkSj mijksä okn ek= LFkkbZ fu"ks/kkKk dk gS tks mij of.kZr rF;ksa vuqlkj [email protected] fnukad 24&11&2005 ds vk/kkj ij oknxzLr Hkwfe cspku dj nh x;h gS vkSj mä fnukad 24&11&2005 ds bdjkjukesa dks vkt fnu rd tkudkjh esa vkus ds ckotwn Hkh lqYrkuflag] jktdoj] ykyflag] j.kthrflag us fdlh Hkh U;k;ky; esa pqukSrh ugha nh gS vkSj mä bdjkjukes ij lqYrkuflag dh lgefr gS] D;ksafd fnukad 24&11&2005 ds [email protected] ds i`"B la- 2 ds in la- 2 esa lqYrkuflag dk uke vafdr gS] exj fQj Hkh lqYrkuflag us bl ckcr~ dksbZ vkifÙk vkt fnu rd ugha dh gS vkSj ,sls esa mä okn ek= LFkkbZ fu"ks/kkKk dk dkuwu esa pyus ;ksX; ugha gS] ,sls esa oknh dks mä okn esa fdlh Hkh çdkj ls lQyrk feyus dh dksbZ xqatkbZ'k ugha gS vkSj ekuuh; mPpre U;k;ky; usa vius egRoiw.kZ fu.kZ;ksa esa fl)kar çfrikfnr dj fu.kZ; fn;s gS fd ,sls fuFkZd okn dks 'kh?kz vfr'kh?kz [kkfjt fd;k tkuk pkfg, rkfd U;k;ky; dk fderh le; [kjkc u gks vkSj >wBs o cukoVh okn dks jksdk tkuk pkfg, ,oa ekuuh; mPpre U;k;ky; ds fu.kZ; vuqlkj çkjafHkd LVst ij gh [kkfjt gksus ;ksX; gS \

2- ;g gS fd mijksä okn esa oknh usa ,slk dksbZ caVokM+k is'k ugh fd;k gS] ftlesa fooknxzLr tehu lkeykrh gks vkSj iwjh i=koyh ij fnukad 20&06&1951 dk ek= ,d caVokM+k çn'kZ A1 gS] ftles oknxzLr Hkwfe lkeykrh gksus dk dksbZ bUækt ugh gS ,oa i=koyh ij çn'kZ&, 8 ls çn'kZ&,12 caVokM+k fnukad 21&06&1951 dks oknh us viuh lk{; esa Lohdkj fd;k gS vkSj mä caVokM+k es Mh&Cy‚d fxjojflag ds uke vafdr gS] ,sls esa mä okn iw.kZr;k >wBk gksuk Li"V gS] tks ekuuh; mPpre U;k;ky; ds vkns'k vuqlkj [kkfjt gksus ;ksX; gSA"

[2023/RJJD/006704] (8 of 11) [CR-159/2022]

It is relevant to note that the said application has been

placed on record today by respondent No.1 along with his written

synopsis.

A bare perusal of the contents of the application under Order

7 Rule 11, CPC preferred by the defendants in the year 2015 and

the present impugned application under Section 151, CPC makes

it clear that the same comprise of almost akin facts. In the earlier

application under Order 7 Rule 11, CPC, the ground of defendants

was firstly that a suit simpliciter for injunction is not maintainable

and secondly, as the plaintiff had agreed to the

settlement/partition in the year 1951 and had never challenged

the same therefore, the present suit is a frivolous one and

deserves to be dismissed. In the present application under

Section 151, CPC also, the same facts have been averred and the

same prayers have been made. Admittedly, the application under

Order 7 Rule 11, CPC was dismissed way back in the year 2017.

The present application preferred in the year 2019 on the same

averments and for the same prayers has, in the specific opinion of

this Court, rightly been rejected by the Court below. An

application for the same prayer, in the garb of the inherent powers

of the Court, cannot be entertained on the same grounds and for

the same reliefs twice by a Court. Order 7 Rule 11 is a specific

provision in the Code of Civil Procedure which provides for

rejection of a suit at the threshold if the same does not disclose

any cause of action or if the same is specifically barred by any law.

Once an application under the said provision having been filed and

already having been decided by the Court, an application in the

[2023/RJJD/006704] (9 of 11) [CR-159/2022]

garb of Section 151, CPC could not have been further entertained

by the Court for the same reliefs.

It is the settled proposition of law that the inherent powers

enshrined under Section 151 of the Code of Civil Procedure can be

exercised ONLY where no remedy as been provided for in any

other provision of the Code of Civil Procedure. The said principle

has been reiterated by the Hon'ble Apex Court time and again

right from

• M/s. Ram Chand & Sons Sugar Mills Pvt. Ltd.

Barabanki (U.P.) vs. Kanhayalal Bhargava & Ors.; AIR

1966 SC 1899

• Vinod Seth vs. Devinder Bajaj and Ors.;(2010) 8 SCC 1

• Ramji Gupta and Ors. vs. Gopi Krishan Agrawal (D)

and Ors.; (2013) 9 SCC 438

to My Palace Mutually Aided Co-operative Society vs.

B. Mahesh & Ors. Civil Appeal No.5784 of 2022 (@ SLP

(Civil) No.7015/2022) decided in the year 2022.

So far as the judgments relied upon by the petitioner are

concerned, there is no dispute on the proposition of law that the

Court, if reaches to a conclusion that suit is a total frivolous one,

can proceed on to dismiss the same even by invoking inherent

powers under Section 151, CPC. There is also no dispute over the

proposition of law that even in absence of available grounds under

various clauses of Order 7 Rule 11, CPC the Court can invoke the

inherent powers under Section 151, CPC but then, the said ratio

would not apply to the present matter because of the following

reasons:

[2023/RJJD/006704] (10 of 11) [CR-159/2022]

1. All the judgments relied upon pertain to matters wherein

application under Order 7 Rule 11, CPC had been

allowed/rejected.

2. The averments as made in the present application under

Section 151, CPC had already been raised and decided by the

Court in the application under Order 7 Rule 11, CPC preferred by

the defendants earlier.

3. No new ground has been raised in the present application

under Section 151, CPC which could have been entertained by the

Court.

4. The grounds as raised in the present application under

Section 151, CPC do not spell out any new fact/ground which was

not available on record on the date when the application under

Order 7 Rule 11, CPC was filed and decided by the Court.

5. So far as the facts stated in the application under Section

151, CPC are concerned, the same are the facts which can be

proved/disproved only after the evidence being led by the parties.

This Court at the stage of defendants' evidence and on an

application under Section 151, CPC cannot go into the merits of

the suit as the same can be decided only after the complete

adjudication of the issues on basis of the evidence led by the

parties. So far as the fact of the agreement/settlement of the

year 1951 and the subsequent sale-deeds are concerned, as

rightly held by the Court below, the same are the subject matter

to be proved/disproved by evidence and the Court cannot, on an

application under Section 151, CPC, dwell into the said facts and

record any finding on merits at this stage.

[2023/RJJD/006704] (11 of 11) [CR-159/2022]

In view of the above analysis, this Court does not find any

ground to interfere with the order impugned dated 18.08.2022.

The revision petition is therefore, dismissed.

The stay application and all the pending applications stand

disposed of.

(REKHA BORANA),J 67-T.Singh/-

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