Allowed

Jatan Raj Mehta v. Khinvraj Kapdi and Ors.

Rajasthan HC16 Nov 2018CW/4966/2017

Case brief

AI extract

What is this about?

The High Court allowed a writ petition quashing the trial court's order rejecting a petition to decide issue No.4 as a preliminary issue. The court held that Order XIV Rule 2(2) tests involve pure questions of law, distinct from Order VII Rule 11, and noted the framed issue required no evidence.

What did the court decide?

Impugned order dated 16.3.2017 quashed and set aside; trial court directed to decide issue No.4 as a preliminary issue within one month.

Jatan Raj Mehta Vs Khinvraj Kapdi and Ors. — Civil Procedure and Limitation | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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S.B. Civil Writ No. 4966/2017

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Jatan Raj Mehta S/o Shri Prem Raj, By Caste Oswal, aged about 84 years, Resident Of Soni Chowk, Merta City District Nagaur.

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----Petitioner

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Versus

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Khinvraj Kapdi S/o Shri Khumaram Ji

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Gena Ram Badiyasar S/o Shri Chotha Ram

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Ram Niwas Kamediya S/o Shri Shiv Lal

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Shanker Lal Inaniya S/o Shri Shankar Lal, All By Caste Jat, Residents Of Prem Nagar, Merta City, Tehsil Merta District Nagaur.

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Kishore Soni S/o Shri Kewalchand Soni

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Mukesh Soni S/o Shri Prakashmal Soni, Both By Caste Soni, Residents Of Prem Nagar, Merta City, Tehsil Merta District Nagaur Raj.

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----Respondents

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For Petitioner(s) : Mr. S. L. Jain. For Respondent(s) : Mr. G. L. Choudhary.

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JUSTICE DINESH MEHTA

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Judgment

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16/11/2018

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By way of the present writ petition, the petitioner has challenged the order dated 16.3.2017 passed by learned Civil Judge, Merta (hereinafter referred to as the ‘trial Court’) whereby his application under Order XIV Rule 2 (2) of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) has been rejected.

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Briefly stated the relevant facts are that the respondents had filed a suit for permanent injunction against the petitioner. During

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(2 of 4)

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[CW-4966/2017]

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the pendency of the suit, the petitioner-defendant had filed an application under Order VII Rule 11 of the CPC, claiming the suit to be barred by law, which application was rejected by the trial Court, vide its order dated 28.1.2014. While rejecting the application, trial Court held that the suit in question cannot be said to be barred by law.

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The parties thereafter completed their pleadings and issues came to be framed on 20.9.2012.

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Out of the seven issues framed by the trial Court, issue No.4 reads thus :

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““04- vk;k izfroknh ds }kjk jkekfd’ku ds fo:) izLrqr fd;s x;s okn esa ikfjr dh xbZ fMdzh fnukad 20&11&2008 dh ikyuk gsrq izfroknh us btjk; izLrqr dh] ftlesa oknhx.k dks mtznkjh izLrqr dj Dyse r; djokuk pkfg;s ftlls oknhx.k dk ;g okn fof/k }kjk oftZr gS ,o [kkfjt fd;s tkus ;ksX; gS\ & izfroknh- ””

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The petitioner then proceeded to file an application dated 27.10.2014 and prayed that issue No.4 be decided as a preliminary issue. The respondent-plaintiffs opposed such request by way of filing a reply dated 5.2.2015.

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The petitioner’s said application dated 27.10.2014 came to be rejected by the trial Court, vide order dated 16.3.2017 while observing that as the petitioner’s identical application under Order VII Rule 11 of the Code has already been rejected by the trial Court, holding the suit not to be barred by law the subject application under Order XIV Rule 2 (2) of the Code was nothing but an attempt to protract the proceedings.

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Mr. G. L. Choudhary, learned counsel for respondents on the other hand submitted that all the grounds surrounding issue No.4

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(3 of 4)

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[CW-4966/2017]

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had been taken in the application under Order VII Rule 11 of the Code and the same stood already repelled by the trial Court, vide order dated 28.1.2014. He submitted that in the face of the order dated 28.1.2014, the issue No.4 as framed by the trial Court is not required to be decided as a preliminary issue. It has also been submitted that in the present suit, the evidence has commenced and the plaintiffs have already filed their affidavits in evidence, which are pending for cross-examination, hence no indulgence is warranted.

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I have heard learned counsel for the parties and perused the material available on record.

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A perusal of the impugned order dated 16.3.2017 reveals that the trial Court was essentially swayed by the fact that the petitioner’s some what similar application under Order VII Rule 11 of the Code had been rejected.

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In considered opinion of this Court, the consideration and scope of application under Order VII Rule 11 of the Code are entirely different than the consideration for deciding a preliminary issue under Order XIV Rule 2 of the Code. While deciding an issue as a preliminary issue, the Court is required to see as to whether such issue is purely a question of law, which requires no evidence to be led, whereas while deciding an application under Order VII Rule 11 of the Code, the Court is required to consider as to whether the plaint deserves to be rejected while looking at the contents of the plaint. Rejection of application under Order VII Rule 11 of the Code cannot, in each case, be considered as an embargo for deciding the issue as preliminary issue, if the concerned issue relates to a pure question of law.

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(4 of 4) [CW-4966/2017]

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A bare look at the issue No.4 shows that the same is a pure question of law and does not require leading of evidence. As such, I am of the view that the trial Court has erred in rejecting the petitioner’s request to decide the issue No.4 as preliminary issue.

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Accordingly, the writ petition is allowed and the impugned order dated 16.3.2017 is quashed and set aside.

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The trial Court is directed to decide issue No.4 as preliminary issue, within a period of one month from the next date immediately falling after the order instant.

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Needless to observe that any observation made in the present order shall not influence the decision of the trial Court, while deciding the issue No.4 as a preliminary issue. The trial Court may however be free to consider the order dated 16.03.2017 rejecting application under Order VII Rule 11 of the Code, to the extent it is relevant.

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(DINESH MEHTA),J

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A.Arora/-59.

Jatan Raj Mehta v. Khinvraj Kapdi and Ors.

Case brief

What is this about?

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Jatan Raj Mehta v. Khinvraj Kapdi and Ors.

Case brief

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