Uttarakhand High Court
Mr. Neeraj Garg vs Dr. Smt. Shashi Netzle on 6 November, 2023
Office Notes, reports,
orders or proceedings
1SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
CLR No.161 of 2023
Hon'ble Pankaj Purohit, J.
1. Mr. Neeraj Garg, learned counsel with Mr.
Rajendra Arya, learned counsel for the revisionist.
2. Heard learned counsel for the revisionist.
3. Feeling aggrieved by the judgment and order
dated 18.10.2023 passed in Original Suit No.45 of
2021, Satish Kumar Jain vs. Dr. Smt. Shashi Netzle
whereby the application moved by the
revisionist/defendant under Order 7 Rule 11 has
been rejected.
4. Original Suit No.45 of 2021 Satish Kumar
Jain vs. Dr. Smt. Shashi Netzle was filed by the
respondent no.1/plaintiff in the court of Civil Judge,
Senior Division, Vikasnagar, Dehradun for
mandatory as well as permanent injunction. The
case of the respondent no.1/plaintiff was mainly
filed on the basis of the averments made in the
plaint quoted hereunder:-
i. The plaintiff and defendant jointly purchased
the property situated at Khasra No.359 Min,
area 0.2310 hectare in Village Dumet, Pargana
Pachhwa Doon, Tehsil Vikasnagar, District
Dehradun by way of a sale deed dated
09.05.2013 and an equal amount was spent
towards consideration amount of the sale deed,
which was Rs.80,00,000/- by the plaintiff and
defendants as well.
ii. An understanding was developed between
the plaintiff/respondent no.1 and defendant
no.1/revisionist that respondent no.1/plaintiff
will pay back an amount of Rs.40,00,000/- to
the revisionist/defendant no.1 and on receipt of
this amount revisionist/defendant no.1 will
execute the sale deed in favour of respondent
no.1/plaintiff. But the revisionist/defendant
no.1 failed to execute the sale deed in favour of
the respondent no.1/plaintiff.
iii. It is the contention of the respondent
no.1/plaintiff that since the
revisionist/defendant no.1 failed to perform her
part of understanding developed between them,
the Original Suit No.45 of 2021 was instituted
in the court of Civil Judge (Sr. Div.),
Vikasnagar, Dehradun.
5. Defendant no.1/revisionist while filing the
written statement and raising counter-claim, also
moved an application Paper No.20 (C2) under
Order 7 Rule 11 of CPC, with a request to reject the
plaint of the respondent no.1/plaintiff as the same,
according to respondent no.1/plaintiff, was not
within the parameters of Order 7 Rule 11 of C.P.C.
The said application was contested by the
respondent no.1/plaintiff by filing objection to the
application wherein it has been stated that the
application was not legally maintainable and the
same is filed with malafide intention and to delay
the proceedings of the original suit for gaining time.
6. Learned trial court considering the contention
raised on behalf of the revisionist/defendant no.1
and the objection filed by the respondent
no.1/plaintiff, rejected the said application moved
by the revisionist/defendant no.1 under Order 7
Rule 11 of C.P.C. by impugned order dated
18.10.2023.
7. It is argued by the learned counsel for the
revisionist/defendant no.1 that from the relief
clause of the plaint, it is not clear that as to what
assurance the respondent no.1/plaintiff wants from
the revisionist/defendant no.1 to honour.
8. When a point of query was made to the
learned counsel for the revisionist while perusing
Order 7 Rule 11 of the C.P.C. that under which
Clause of Order 7 Rule 11 of C.P.C. the case of the
revisionist/defendant no.1 falls, to attract the
provisions of Order 7 Rule 11 of C.P.C., the learned
counsel for the revisionist fails to answer. Even
after going through the application moved by the
revisionist/defendant no.1 under Order 7 Rule 11 of
C.P.C., no satisfactory answer could be given by
him.
9. From the perusal of the impugned order
whereby the application under Order 7 Rule 11 of
C.P.C. is rejected, it is reflected that the learned
trial court while dealing with the arguments of the
revisionist, has rightly held that the arguments,
which has been raised on behalf of the
revisionist/defendant no.1 that the suit is barred by
limitation and the suit is against the provisions of
Registration Act as well as the Stamp Act, can only
be decided after the parties are given opportunity to
lead the evidence.
10. Learned trial court is right in holding that the
question of suit, being beyond limitation, is a mixed
question of law and facts and it can only be decided
after the evidence is adduced by the parties. Thus
application under Order 7 Rule 11 of C.P.C. and
application Paper No.20 (C2) has been rejected and
the suit was fixed for framing of the issues.
11. I have gone through the plaint as well as the
objection moved by the parties and impugned order
dated 18.10.2023. The learned trial court has
assigned the lawful reasons while rejecting the
application under Order 7 Rule 11 of C.P.C. moved
by the revisionist/defendant no.1.
12. In view of the above discussion, I do not find
any merit in the revision, the same is accordingly,
dismissed.
(Pankaj Purohit, J.)
06.11.2023
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