Revision petition allowed. High Court held trial court committed material irregularity by refusing to examine jurisdictional bar early. Quashed impugned order and remanded for fresh decision.
Revision pet allowed; impugned order quashed and set aside; matter remanded to trial Court for fresh decision.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Revision No. 176/2017
Mishri Lal S/o Sh. Nathu Ram Deora, By Caste Deora Teli, Resident Of Khinvsar, Tehsil Khinvsar, District Nagaur.
----Petitioner
----Respondents
For Petitioner(s) : Mr. N.R. Choudhary For Respondent(s) : None present despite service
HON'BLE MR. JUSTICE P.K. LOHRA
Order
12/09/2018
Petitioner-defendant has laid this revision petition under Section 115 CPC to assail impugned order dated 20.05.2017, passed by Additional Civil Judge-cum-Judicial Magistrate, Nagaur (for short, ‘learned trial Court’), rejecting his application under Order 7 Rule 11 CPC in a suit, for mandatory and perpetual injunction as well as declaration, filed by the respondent-plaintiff.
While taking shelter of Clause (b) and (d) of Rule 11 order 7 CPC, petitioner has pleaded in the application that from a bare perusal of the statement in the plaint itself, the suit is barred by law and, further the relief claimed therein is also undervalued. Precisely, petitioner has averred in the application that the land in question, which is subject-matter of lis, as per the statement of
(2 of 3)
[CR-176/2017]
the plaint itself, is an agricultural land, and therefore suit is barred under Section 207 of the Rajasthan Tenancy Act, 1955. The petitioner has also made a positive assertion in the application that the relief has been undervalued, inasmuch as, the market value of the land in question is six lakhs rupees, and therefore the same is beyond pecuniary jurisdiction of the court.
Learned trial Court, after hearing submissions of the rival parties, rejected the application, precisely, by citing the reason that the issues raised at the behest of petitioner are mixed question of law and fact, therefore, cannot be determined at this stage and require evidence of the rival parties for adjudication.
I have heard learned counsel at length, perused the materials available on record, including the order impugned.
As none has appeared on behalf of respondent-plaintiff to contest, the same has made task of the petitioner easier.
During the course of the arguments, learned counsel for the petitioner has placed reliance on a decision of this Court in Premi Devi (Smt.) Vs. Devi Ram & Ors. : 2009(1) RRT 255.
Upon examining the impugned order and the reasons spelt out therein, for nixing the application of the petitioner under Order 7 Rule 11 CPC, in my view, learned Court below has committed material irregularity and illegality in exercise of jurisdiction.
(3 of 3)
[CR-176/2017]
While it is true that, at times, issue relating to the suit being barred by law can be mixed question of law and fact, inasmuch as, when there is issue relating to limitation. However, if there is an express provision, which bars jurisdiction of a civil Court, then, in such a situation, the bud has to be nipped at the threshold and a party cannot be made to face the entire trial. While refraining to make any comment on the merits of the grounds set out in application under Order 7 Rule 11 CPC, in my opinion, the approach of learned trial Court in dealing application of the petitioner-defendant is per se improper, and therefore it is a clear case wherein learned Court below has failed to exercise jurisdiction so vested in it.
Consequently, the impugned order cannot be sustained. Resultantly, revision petition is allowed. The impugned order is quashed and set aside and the matter is remanded back to learned trial Court for deciding application of the petitioner afresh strictly in accordance with law.
Bharti/67
2 issues framed by the court
Whether the impugned order rejecting application under Order 7 Rule 11 CPC committed material irregularity.
Whether bar under Section 207 of Rajasthan Tenancy Act prohibits civil court jurisdiction as a matter of law.
Colour shows how this judgement treated each authority
Premi Devi (Smt.) Vs. Devi Ram & Ors.Referred¶21
Premi Devi (Smt.) Vs. Devi Ram & Ors. : 2009(1) RRT 255
3 provisions across 2 enactments
Mishri Lal
Safi Mohd
Addl. Civil Judge & Judicial Magistrate, Nagaur
P.K. Lohra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
P.K. Lohra
Parties & counsel
