Rajbala Jajoo vs Nand Kishore Rathi ...
2023 Latest Caselaw 8671 Raj

[2023:RJ-JD:35598]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 177/2023

Rajbala Jajoo W/o Shri Arvind Jajoo, Aged About 43 Years, Resident Of Lohiyon Ki Pol, Pungal Pada, District Jodhpur. (Raj.)

----Petitioner Versus

1. Nand Kishore Rathi S/o Shri Roop Raj Rathi, Aged About 68 Years, Resident Of Pungal Pada, Tapadiyon Ki Gali, District Jodhpur (Raj.)

2. Shri Arvind Jajoo S/o Shri Gopi Kishan Jajoo, Resident Of Pungal Pada, Tapadiyon Ki Gali, District Jodhpur (Raj.)

3. Yes Bank, Through Its Manager, Plot No. 5, Meganine Floor, Sanskriti Tower, Chopasani Road, Masuriya Colony Scheme, District Jodhpur (Raj.)

----Respondents

For Petitioner(s) : Mr. Nishit Shah

HON'BLE MS. JUSTICE REKHA BORANA Judgment

18/10/2023

1. The present revision petition has been preferred against the

order dated 08.08.2023 passed by the Senior Civil Judge, Jodhpur

Metropolitan in Civil Suit No.87/23 whereby the application under

Order 7 Rule 11, CPC read with Section 18 of the Rajasthan Rent

Control Act, 2001 as preferred by defendant No.3 has been

rejected.

2. The ground as raised by defendant No.3 in his application

under Order 7 Rule 11, CPC was that there exists a relationship of

landlord and tenant between the parties and hence, the present

suit before the Civil Court would not be maintainable in terms of

Section 18 of the Rajasthan Rent Control Act.

[2023:RJ-JD:35598] (2 of 3) [CR-177/2023]

3. It has been submitted that the present plaintiff, against

whom the original landlord had earlier instituted a suit for

eviction, had admitted therein that he is a tenant in the premises.

The present defendant No.3 purchased the premise in question

from the original landlord and stepped into his shoes and hence,

the relationship of landlord and tenant do exist between the

plaintiff and defendant No.3.

4. It has further been submitted that once it is admitted on

record that the plaintiff is a tenant, he cannot claim any right on

the basis of adverse possession. The dispute as laid down/case as

made out in the plaint would definitely be governed by the

provisions of the Rajasthan Rent Control Act and hence, the plaint

ought to have been rejected.

5. The application as preferred by defendant No.3 has been

rejected by the Court below with the finding that in the earlier

suit, the present plaintiff was not a party and further that the

questions whether the present defendant stepped into the shoes

of original landlord and whether the present plaintiff would be

governed by the findings of/in the earlier suit, could be decided

only after an issue being framed and evidence being led on the

same.

6. Heard learned counsel for the petitioner.

7. So far as the issues whether the present plaintiff would be

governed by the findings/admissions in the earlier suit and

whether there exists a relationship of landlord and tenant between

defendant No.3 and plaintiff are concerned, these issues can be

decided only after considering the sale deed in question vide which

the present defendant No.3 has purchased the property from the

[2023:RJ-JD:35598] (3 of 3) [CR-177/2023]

earlier landlord. The same, in the opinion of this Court, cannot be

done in terms of provision of Order 7 Rule 11, CPC. It is the

settled proposition of law that for deciding an application under

Order 7 Rule 11, CPC, only averments made in the plaint are to be

considered and the defence as raised by the defendant cannot be

taken into consideration.

8. A bare perusal of the plaint in question makes it clear that no

averment regarding any tenancy has been made in the plaint.

Therefore, the averment of defendant No.3 regarding the tenancy

cannot be considered by the Court on an application under Order

7 Rule 11, CPC. As rightly held by the Court below, the same can

be decided only after an issue being framed and after the evidence

being led on the same.

9. This Court does not find any reason to interfere with the

order impugned but then it is clear on record that the issue raised

by defendant No.3 goes to very jurisdiction of the Court. It is a

settled proposition of law that if the very jurisdiction of the Court

is in question, the said issue should be decided as a preliminary

issue.

10. In view of the same, the present revision petition is

disposed of with a direction to the Court below to frame an issue

regarding jurisdiction on basis of the pleadings as made by the

defendant and decide the same as a preliminary issue.

11. Stay petition and all pending applications, if any, also stand

disposed of.

(REKHA BORANA),J 171-KashishS/-

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