The High Court of Rajasthan dismissed a civil revision petition challenging the rejection of an application under Section 151 CPC. The Court held that since the same grounds were previously addressed under Order 7 Rule 11 CPC, invoking inherent powers for the same relief was not permissible.
Revision petition dismissed and pending applications disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Revision Petition No. 159/2022
Girvar Singh S/o Late Shri Sher Singh Ji, Aged About 83 Years, By Caste Rajput, R/o Sher Vilas, Opposite Officers Mess, Ratanada, Air Force Road Jodhpur.
----Petitioner
Versus
----Respondents
(2 of 11)
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| For Petitioner(s) | : | Mr. Hari Singh, son of petitioner present inperson |
|---|---|---|
| For Respondent(s) | : | Mr. Sultan Singh respondent No.1 present in person |
| Mr. Prithvipal Singh respondent | ||
| No.2/2present inperson |
HON'BLE MS. JUSTICE REKHA BORANA
Order
16/03/2023
In the present matter, on 06.01.2023, with the consent of learned counsels for the parties, the revision petition was directed to be listed for final hearing on 20.01.2023. On 20.01.2023, the matter was directed to be listed on 24.02.2023. On 24.02.2023, none of the counsels appeared as they were abstaining from work. Mr. Sultan Singh, respondent No.1, was present in person on that date and he submitted that because of the interim order operating in the matter, the complete proceedings have been stayed and he is suffering an irreparable injury therefore, the matter may be heard. In view of the submissions made and in view of the fact that the counsels were abstaining from work, in the interest of justice, the matter was directed to be listed on 09.03.2023. On 09.03.2023 also, none of the counsels appeared but Mr. Sultan Singh, respondent No.1 was present in person. He again requested the matter to be heard but again on that date as none had appeared for the petitioner, in the interest of justice, the matter was directed to be listed on 13.03.2023. However, it was made clear on that date that even if none appears for the petitioner on the next date, matter would be heard.
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On 13.03.2023, Mr. Hari Singh son of petitioner- Girvar Singh remained present in person and respondent No.1 Mr. Sultan Singh as well as respondent No.2/2 Prithvipal Singh were also present in person. A request was made by Mr. Hari Singh that he would submit written synopsis and the citations relied upon by him by the next date therefore, two days’ time may be granted to him for the purpose. In view of the request made, time was granted to both the parties to submit written synopsis along with the citations relied upon by them and the matter was directed to be listed on 16.03.2023 i.e. today.
Today, Mr. Hari Singh son of petitioner-Girvar Singh is present in person. Mr. Sultan Singh respondent No.1 and Mr. Prithvipal Singh respondent No.2/2 are also present in person. Written synopsis as well as the judgments relied upon by the petitioner as well as respondent No.1 have been submitted.
It has been submitted in the written synopsis by the petitioner that the said synopsis has been prepared and being filed by himself as the counsel showed his inability to do so because of the strike of lawyers. A perusal of the synopsis as submitted shows that the same comprises of all the possible grounds which could be raised by the petitioner and all the judgments as relied upon in support of the contentions have been filed along with the written synopsis. So far as the strike of lawyers is concerned, it is relevant to note that the lawyers are abstaining from work since 19.02.2023 and after that the present matter has been listed thrice before the Court. Only in the interest of justice, the matter was adjourned from time to time. Today, both the contesting parties are present before the Court and even the written synopsis
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along with the citations as relied upon by them have been submitted, therefore, this Court is not inclined to adjourn the matter any further.
Petitioner has relied upon the following judgments:
1. Pukhraj Soni vs. Nisha Citlangiya; CSA No.103/2018 decided by Rajasthan High Court on 24.10.2018.
2. Sakuntala Devi vs. Kamlesh; Second Appeal (D) No.132 of 2016 decided by Allahabad High Court on 02.05.2016.
3. T.Arivandandam vs. T.V.Satyapal; 1977 (4) SCC 467
Respondents have relied upon the following judgments:
1. My Palace Mutually Aided Co-operative Society vs. B.Mahesh& Ors.; Civil Appeal No.5784 of 2022 (@ SLP (Civil) No.7015/2022) decided on 23.08.2022
2. Padam Sen & Anr. vs. The State of Uttar Pradesh; AIR 1961 Supreme Court 218.
I have gone through the written synopsis as submitted by both the parties and even the judgments relied upon by them.
The present revision petition has been preferred against the order dated 18.08.2022 passed by the Additional Civil Judge No.2, Jodhpur Metropolitan (for short, hereinafter referred to as, ‘learned Court below’) whereby the application under Section 151, CPC preferred by the defendant-Girvar Singh has been rejected.
The brief facts of the case are as under:
A suit for permanent injunction was preferred by plaintiffrespondent No.1-Sultan Singh with the submissions that the plaintiff and the defendants are the joint owners of the suit property and the property remains undivided till date. As defendant Nos.2 & 3 are in the process of selling out the unpartitioned property, they may be restrained from doing so.
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Further a prayer for restraining the defendants from alienating, transferring, selling the property and from raising any kind of construction over the same was made.
The defence of the defendants had been that the property was not an unpartitioned property as the same had been partitioned way back in the year 1951 before the Patta Officer and after the said partition, all the share holders were in possession of their respective shares. It was further prayed that the simpliciter suit for injunction without a relief of declaration being prayed for, was not maintainable and therefore, a prayer for dismissal of the suit was made.
In the said suit, evidence was led by the plaintiff and after completion of the plaintiff evidence, an application under Order 7 Rule 11, CPC was preferred by defendant-Girvar Singh with the submissions that the plaintiff was very well in knowledge of the fact that the property had further been sold to several persons by the defendants and without praying for cancellation of those saledeeds, the present suit simpliciter for injunction was not maintainable. It was further submitted in the application that the suit property was partitioned in the year 1951 and the said fact being an admitted fact, the suit being frivolous and being barred by law, deserves to be dismissed.
The application under Order 7 Rule 11, CPC as preferred by the defendant No.1 was rejected in the year 2017 and the suit proceedings went on for defendants’ evidence. But before the defendant evidence could be led, the present impugned application under Section 151, CPC was preferred by the defendant No.1 with the averments that respondent No.1-Sultan
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Singh did not raise any objections to the subsequent sale-deeds executed by Girvar Singh and further that he did not object to the agreement/settlement dated 24.11.2005 and therefore, in view of the fact that the subsequent sale-deeds were never challenged and the partition of the year 1951 was admitted, the present suit being a frivolous one be dismissed at that stage itself. It is against the rejection of the said application under Section 151, CPC that the present revision petition has been filed.
The learned Court below has specifically held that it is the settled proposition of law that an application under Section 151, CPC can be entertained and a relief on the same can be granted only in cases where no alternative provision of law or no alternative relief is provided under the law for the said purpose. The Court below has specifically held that for the prayer as made in the said application, the provision of Order 7 Rule 11, CPC is very well available and therefore, the application under Section 151, CPC cannot be entertained for the said purpose. Further, an application under Order 7 Rule 11, CPC had already been preferred by the defendants and the same was rejected way back in the year 2017 therefore, the present application under Section 151, CPC on the same grounds in the year 2019 could not be entertained.
Before proceeding on further, a reproduction of contents of the application under Order 7 Rule 11 read with Section 151, CPC as preferred by the defendants in the year 2015 is essential, which is as follows:
“ çfroknh la- 1 dh vksj ls fuEu çkFkZuk i= is'k gS %&
1- ;g gS fd oknh usa mijksä okn çLrqr fd;k] mä okn ds yfEcr jgrs oknh usa o çfroknh jktdaoj o ykyflag o çfroknh
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fxjojflag oxSjkg ds e/; fnukad 24-11-05 dks ,d jkthukek@bdjkjukek fu"ikfnr gqvk] mDr jkthukek@bdjkjukek fu"ikfnr gksus ds i'pkr~ oknh Lo;a us o çfroknh jktdaoj o ykyflag usa feydj çfroknh fxjojflag dh tehu ekudj fooknxzLr Hkwfe dks tfj;s jkthukek ds fxjojflag ds vkeeq[R;kj gfjflag ds ekQZr jktw iVsy o Jherh iq"ik dksa cspku djuk r; dj bdjkjukek fnukad 24&11&05 dks fu"ikfnr fd;k] mä bdjkjukek fu"ikfnr gksus ds i'pkr gfjflag us fxjojflag çfroknh dsa vkeeq[R;kj dh gSfl;r ls oknh o çfroknh jktdaoj o ykyflag us feydj mä oknxzLr Hkwfe ds dbZ jftLVMZ cspkuukesa iq"ik pkS/kjh o jktw iVsy ds dgs vuqlkj fu"ikfnr djok;s tks i=koyh ij çn'kZ A- 15 ls çn'kZ A- 23 gS] mä cspkuukeksa ls çkIr jkf'k dks ekfQd jkthukek@bdjkjukek fnukad 24&11&2005 esa r; vuqlkj jde oknh o çfroknh jktdaoj] ykyflag o j.kthrflag us çkIr dh] mä çn'kZ A- 15 ls çn'kZ A- 23 cspkuukeksa dh Hkwfe ij [kjhnkjksa us iDds edku cukdj jgokl çkjaHk dj fn;k vkSj ikuh fctyh ds dusD'ku Hkh çkIr fd;s gS tks çn'kZ A 51 ls çn'kZ A 62 gS ,oa 'ks"k Hkwfe dks gfjflag us iq"ik pkS/kjh o jktw iVsy dksa cspku dj bdjkjukesa ls jkf'k çkIr dj dCtk lqiqnZ dj fn;k gS vkSj iwoZ esa mijksä of.kZr fu"ikfnr gks pqds cspkuukesa vkt ls yxHkx 8&10 lky iqjkus gks pqds gS vkSj mä cspku i=koyh ij Hkh ekStwn gS] tks o"kZ 2009 ls ekStwn gS vkSj oknh us mä cspkuukeksa dks fujLr djokus vFkok fdlh Hkh çdkj dh dksbZ dkuwuh dk;Zokgh mä [kjhnnkjksa o cspku bdjkj ls [kjhnlqnk] dCtklqnk ds fo:) ugha dh gS vkSj mijksä okn ek= LFkkbZ fu"ks/kkKk dk gS tks mij of.kZr rF;ksa vuqlkj jkthukek@bdjkjukek fnukad 24&11&2005 ds vk/kkj ij oknxzLr Hkwfe cspku dj nh x;h gS vkSj mä fnukad 24&11&2005 ds bdjkjukesa dks vkt fnu rd tkudkjh esa vkus ds ckotwn Hkh lqYrkuflag] jktdoj] ykyflag] j.kthrflag us fdlh Hkh U;k;ky; esa pqukSrh ugha nh gS vkSj mä bdjkjukes ij lqYrkuflag dh lgefr gS] D;ksafd fnukad 24&11&2005 ds bdjkjukek@jkthukek ds i`"B la- 2 ds in la2 esa lqYrkuflag dk uke vafdr gS] exj fQj Hkh lqYrkuflag us bl ckcr~ dksbZ vkifÙk vkt fnu rd ugha dh gS vkSj ,sls esa mä okn ek= LFkkbZ fu"ks/kkKk dk dkuwu esa pyus ;ksX; ugha gS] ,sls esa oknh dks mä okn esa fdlh Hkh çdkj ls lQyrk feyus dh dksbZ xqatkbZ'k ugha gS vkSj ekuuh; mPpre U;k;ky; usa vius egRoiw.kZ fu.kZ;ksa esa fl)kar çfrikfnr dj fu.kZ; fn;s gS fd ,sls fuFkZd okn dks 'kh?kz vfr'kh?kz [kkfjt fd;k tkuk pkfg, rkfd U;k;ky; dk fderh le; [kjkc u gks vkSj >wBs o cukoVh okn dks jksdk tkuk pkfg, ,oa ekuuh; mPpre U;k;ky; ds fu.kZ; vuqlkj çkjafHkd LVst ij gh [kkfjt gksus ;ksX; gS \
2- ;g gS fd mijksä okn esa oknh usa ,slk dksbZ caVokM+k is'k ugh fd;k gS] ftlesa fooknxzLr tehu lkeykrh gks vkSj iwjh i=koyh ij fnukad 20&06&1951 dk ek= ,d caVokM+k çn'kZ A 1 gS] ftles oknxzLr Hkwfe lkeykrh gksus dk dksbZ bUækt ugh gS ,oa i=koyh ij çn'kZ&, 8 ls çn'kZ&,12 caVokM+k fnukad 21&06&1951 dks oknh us viuh lk{; esa Lohdkj fd;k gS vkSj mä caVokM+k es Mh&Cy‚d fxjojflag ds uke vafdr gS] ,sls esa mä okn iw.kZr;k >wBk gksuk Li"V gS] tks ekuuh; mPpre U;k;ky; ds vkns'k vuqlkj [kkfjt gksus ;ksX; gSA ”
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It is relevant to note that the said application has been placed on record today by respondent No.1 along with his written synopsis.
A bare perusal of the contents of the application under Order 7 Rule 11, CPC preferred by the defendants in the year 2015 and the present impugned application under Section 151, CPC makes it clear that the same comprise of almost akin facts. In the earlier application under Order 7 Rule 11, CPC, the ground of defendants was firstly that a suit simpliciter for injunction is not maintainable and secondly, as the plaintiff had agreed to the settlement/partition in the year 1951 and had never challenged the same therefore, the present suit is a frivolous one and deserves to be dismissed. In the present application under Section 151, CPC also, the same facts have been averred and the same prayers have been made. Admittedly, the application under Order 7 Rule 11, CPC was dismissed way back in the year 2017. The present application preferred in the year 2019 on the same averments and for the same prayers has, in the specific opinion of this Court, rightly been rejected by the Court below. An application for the same prayer, in the garb of the inherent powers of the Court, cannot be entertained on the same grounds and for the same reliefs twice by a Court. Order 7 Rule 11 is a specific provision in the Code of Civil Procedure which provides for rejection of a suit at the threshold if the same does not disclose any cause of action or if the same is specifically barred by any law. Once an application under the said provision having been filed and already having been decided by the Court, an application in the
(9 of 11)
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garb of Section 151, CPC could not have been further entertained by the Court for the same reliefs.
It is the settled proposition of law that the inherent powers enshrined under Section 151 of the Code of Civil Procedure can be exercised ONLY where no remedy as been provided for in any other provision of the Code of Civil Procedure. The said principle has been reiterated by the Hon’ble Apex Court time and again right from
to My Palace Mutually Aided Co-operative Society vs. B. Mahesh & Ors. Civil Appeal No.5784 of 2022 (@ SLP (Civil) No.7015/2022) decided in the year 2022.
So far as the judgments relied upon by the petitioner are concerned, there is no dispute on the proposition of law that the Court, if reaches to a conclusion that suit is a total frivolous one, can proceed on to dismiss the same even by invoking inherent powers under Section 151, CPC. There is also no dispute over the proposition of law that even in absence of available grounds under various clauses of Order 7 Rule 11, CPC the Court can invoke the inherent powers under Section 151, CPC but then, the said ratio would not apply to the present matter because of the following reasons:
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This Court at the stage of defendants’ evidence and on an application under Section 151, CPC cannot go into the merits of the suit as the same can be decided only after the complete adjudication of the issues on basis of the evidence led by the parties. So far as the fact of the agreement/settlement of the year 1951 and the subsequent sale-deeds are concerned, as rightly held by the Court below, the same are the subject matter to be proved/disproved by evidence and the Court cannot, on an application under Section 151, CPC, dwell into the said facts and record any finding on merits at this stage.
(11 of 11)
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In view of the above analysis, this Court does not find any ground to interfere with the order impugned dated 18.08.2022. The revision petition is therefore, dismissed.
The stay application and all the pending applications stand disposed of.
(REKHA BORANA),J
67-T.Singh/-
2 issues framed by the court
Whether an application under Section 151 CPC can be entertained when the same grounds were already considered and rejected under Order 7 Rule 11 CPC.
Whether the High Court can interfere with the rejection of an inherent powers application where no new facts or grounds are established.
Colour shows how this judgement treated each authority
Pukhraj Soni vs. Nisha CitlangiyaReferred¶37
Pukhraj Soni vs. Nisha Citlangiya; CSA No.103/2018
Sakuntala Devi vs. KamleshReferred¶38
Sakuntala Devi vs. Kamlesh; Second Appeal (D) No.132 of 2016
T. Arivandandam vs. T.V. SatyamurthyReferred¶39
T.Arivandandam vs. T.V.Satyapal; 1977 (4) SCC 467 · Who else cites this
My Palace Mutually Aided Co-operative Society vs. B. Mahesh & Ors.Followed¶41
My Palace Mutually Aided Co-operative Society vs. B. Mahesh & Ors.
Padam Sen & Anr. vs. The State of Uttar PradeshReferred¶42
Padam Sen & Anr. vs. The State of Uttar Pradesh; AIR 1961 Supreme Court 218 · Who else cites this
M/s. Ram Chand & Sons Sugar Mills Pvt. Ltd. vs. Kanhayalal BhargavaRelied on¶77
M/s. Ram Chand & Sons Sugar Mills Pvt. Ltd. Barabanki (U.P.) vs. Kanhayalal Bhargava & Ors.
Vinod Seth vs. Devinder BajajRelied on¶78
Vinod Seth vs. Devinder Bajaj and Ors.
Ramji Gupta and Ors. vs. Gopi Krishan AgrawalRelied on¶79
Ramji Gupta and Ors. vs. Gopi Krishan Agrawal (D) and Ors.
2 provisions across 1 enactments
Girvar Singh S/o Late Shri Sher Singh Ji
Sultan Singh S/o Late Shri Swaroop Singh
Rekha Borana
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
