Priya Sharma vs Gurmeet Singh And Others
2021 Latest Caselaw 4566 UK

          HIGH COURT OF UTTARAKHAND
                  AT NAINITAL
                 Civil Revision No. 83 of 2021
Priya Sharma                                         ...     Revisionist
                                   Vs.
Gurmeet Singh and others                             ... Respondents
                                  And
                 Civil Revision No. 84 of 2021
Priya Sharma                                         ...     Revisionist
                                   Vs.
Gurvinder Singh and others                           ... Respondents
Advocates :   Mr. Piyush Aggarwal, Advocate along with Ms. Soniya Chawla,
              Advocate, for the revisionist

Hon'ble Sharad Kumar Sharma, J.

This judgment would govern the two Civil Revisions, being Civil Revision No. 83 of 2021, as well as Civil Revision No. 84 of 2021, which are listed today as fresh.

2. The prime question, which has been put to challenge by the revisionist, being aggrieved against the impugned order as it has been passed by the Court of Civil Judge (Senior Division), Rudrapur, District Udham Singh Nagar; are emanating respectively from the Suit No. 107 of 2020, Gurmeet Singh Vs. Priya Sharma and others, and Suit No. 106 of 2020, Gurvinder Singh Vs. Priya Sharma and others, by virtue of which the application of the revisionist under Order 7 Rule 11 of CPC, to be read with Section 41(h) of the Specific Relief Act, has been rejected.

3. In fact, the revisionist had principally by filing the respective applications i.e. paper No. 17 (Ka1), in the two suits, referred above, had raised a preliminary ground that the suit, as instituted by the plaintiff/respondent would be barred by the provisions contained under Order 7 Rule 11 of CPC, for the

reason being, that the issue about the subject matter of the suit, whether it falls to be within the domain and jurisdiction of the Revenue Courts or the Civil Courts, would depend upon the apportionment of the subject matter i.e. the disputed property, which is under consideration in the two suits in question.

4. In fact, if the reasoning which had been given by the learned Trial Court, while considering the application of the revisionist under Order 7 Rule 11 of the CPC are taken into consideration, in fact the Court has opined that the nature of controversy raised by the revisionist in his application which was preferred under Order 7 Rule 11 of the CPC, where it requires a determination of an apportionment and a right created with regard to the nature of land, which is the subject matter of the suit, the Court has held that the consideration of an application under Order 7 Rule 11 of the CPC, would fall to be within the domain of consideration of a mix question of fact and law and hence, the Court has inferred, that the issue thus raised by the defendant in the suit, particularly when it entails an appreciation of evidences and facts, in coordination and its correlated application, with law applicable, it could only be decided by formulation of an issue. In that eventuality, if the respective impugned orders dated 18.03.2021, are taken into consideration, in fact, it is not amounting to be a closure of right of the revisionist to decide the implications of his application under Order 7 Rule 11 of the CPC to be read with Section 41(h) of the Specific Relief Act, which in fact is yet to be decided by the learned trial Court on its own merits after considering the evidences to be led by the respective parties on the issue to be formulated.

5. In that eventuality, this Court is of the view that, at this stage, in the revisions in question, where a challenge is given to

the order of rejection of the application paper No. 17 (Ka1) filed by the defendant/revisionist, respectively in the two suits are concerned, they are not prejudicial to the interest of the defendant/revisionist as all his rights of the revisionist are still reserved to be decided by the learned trial Court in relation to the provisions contained under Order 7 Rule 11 of the CPC to be read with Section 41(h) of the Specific Relief Act and hence, this Court is of the view that at this stage, if the implications of the provisions contained under Section 115 of the Code of Civil Procedure is taken into consideration; in the light of the provisions also contained under Section 105 of the CPC, this Court is of the view that the order in question since it is not determining a right, at this stage, and since it is still a subject matter which has been left open to be decided by the learned trial Court after formulation of an issue and appreciating the evidences, to be led by the respective parties on the issue raised by the revisionist in his application under Order 7 Rule 11 of the CPC, at this stage, I am of the view that it will not fall to be within an ambit of a 'case decided', or an 'issue decided', which is prejudicing the rights of the revisionist at all.

6. In that eventuality, with all aspects left to be considered and decided by the Court of Civil Judge (Senior Division) after formulation of issue on the question of Order 7 Rule 11 of the CPC, this Court is not inclined to interfere in the revision at this stage.

7. Accordingly, the revisions are dismissed.

(Sharad Kumar Sharma, J.) 15.11.2021 Mahinder/