MANU/RH/0697/1991

Equivalent/Neutral Citation: RLW1992(1)Raj547

IN THE HIGH COURT OF RAJASTHAN

S.B. Civil Revision Petition No. 447 of 1991
Decided On: 14.11.1991
Navin Graha Nirman Sahakari Samiti Ltd. Vs. Shyam Prakash Sharma
Hon'ble Judges/Coram:
Nagendra Kumar Jain, J.
Counsels:
For Appellant/Petitioner/Plaintiff: K.C. Samdariya, Advocate
RLW Case Note:
C.P.C., Sec. 115, Order, 7, Rule 11 and Rajasthan Co-operative Societies Act,
1965, Sec. 75 & 143 - Notice u/s. 143 of the Act of 1965 given but the
Registrar failed to decide the dispute within two months--Jurisdiction of court
can not be ousted--The lower court can decide the question of jurisdiction of
the court after recording evidence by framing issue on the question of
jurisdiction and will decide it first on merits--Lower court has not committed
any illegality or material irregularity. [9]

JUDGMENT
Nagendra Kumar Jain, J.
1. This revision petition is directed against the order of learned Civil Judge, Jodhpur
dated 25.7.1991.
2. Mr. K.C. Samdariya, learned counsel for the petitioner has submitted that the
suit was barred by the provisions of Sec. 75 of the Rajasthan Cooperative Societies
Act, 1965 thus the learned trial court has erred in dismissing the application dt.
16.7.91 under 0.7 Rule 11 CPC while disposing of the injunction application and
in not dismissing the plaint. He has placed reliance on T. Aivandandam V.T.V.
Satyapal (MANU/SC/0034/1977 : AIR 1977 SC 2421), Bhagwan Das vs. Goswami
Brijesh Kumar & Ors. (1983 Raj. 3), Association of Radha Swami Dera Baba Baggar
Singhji vs. Pratap Singh & Ors. (MANU/RH/0249/1984 : 1984 WLN (UC) 284), Smt.
Patasi Bai & Ors. vs Ratanlal (1990 (3) J.T.S.C. 68) and Smt. Kanchan Bai vs. Khetsidas
& Ors. decided on 05.9.1990. (S.B. Civil Revision Petition No. 297/89 (RHC) decided on
05.9.1990)
3. I have heard learned counsel for the petitioner and perused the case law cited by the
learned counsel for the petitioner.
4 . In T. Arivandandam vs. T.V. Satyapal (supra), their Lordships has
expressed themselves strongly against unrighteous chain litigation leading to ex parte
injunction orders which tended to give rise to gamble in litigation into easy courts. It
was also observed that Judge should not succumb to ex parte pressure in unmerited
cases as it would tend to devolve the judicial process. But their Lordships did not intend
to enlarge the scope of the provisions of Order VII, Rule 11 C.P.C. So as to authorise the
Court to decide at that stage all questions of law, whose determination was necessary in
the suit, to conclude the 'actual' right or claim of one party or the other.
5. In Bhagwan Das vs. Goswami Brijesh Kumari (supra) it has been observed that the
documents can also be looked into while considering the averments of the plaint for the
purpose of deciding the question that the plaint discloses a cause of action or not.
It has also been observed that the question relating to the validity or invalidity of
the documents cannot be considered at the stage of deciding an application under O. 7,
R. 11.
In Association of Radha Swami vs. Pratap Singh (supra) it has been observed that the
court can also look into the documents filed with the plaint.
6. In Patasi Bai vs. Ratanlal (supra) admittedly no cause of action was disclosed from
the averments of the plaint, therefore, Supreme Court while deciding case held that the
High Court has also ignored its effect.
7. In Kanchan Bai vs. Khetsidas (supra), the petitioner had claimed to become full
aware. It was alleged that the contract of sale did not prescribe any period
untenable the contract was to be performed. Thus, claimed benefit of Sec. 54 of the
Limitation Act and prayed for a decree for specific performance. Learned trial court
on 23.11.1985 considered the averments and documents annexed with the plaint
and rejected the plaint as time barred under 0.7. Rule 11. On appeal the learned Addl.
Distt. Judge set aside the order of the trial court as it took into consideration the
documents which was not proper. The learned trial court was directed to reconsider
its order on the basis of the plaint only. This order was set aside by the High Court in
Misc. Appeal No. 90/86 on
17.1.89 and the appellate court was directed to decide the appeal afresh on merits
in terms of 0.7 Rule 11 C.P.C. an the basis of averments of the plaint. The case
was reconsidered by the learned Addl. Distt. Judge and he was of the view that the
learned trial Court could not have taken into consideration any document filed by
the either side. The learned Addl. Distt. Judge allowed the appeal and set aside the
order of rejection of the plaint. Against the order Kanchan Bai had come before this
court. This Court relying on Bhagwan Das vs. Goswami Brijesh Kumari (supra) and
Association of Radha Swami Dera Bada Baggar Singhji vs. Pratap Singh (supra) held that
the court can also look into the documents filed with the plaint for the purpose of
deciding the question that the plaint discloses a cause of action or not and allowed the
revision and restored the order of trial court rejecting the plaint as time barred.
8. The scope of revision is limited one and this Court can interfere in the revisional
jurisdiction, if the said Judge had no jurisdiction to make the order it has made or if the
trial court had acted in breach of any provision of law or committed any error
of procedure which was material and may have affected the ultimate decision, otherwise
not, even if this court may not agree with the conclusion on the question of fact
and law.
9. In the instant case, the plaintiff has alleged that he is one of the member of the
petitioner society and has come to the civil court for redressal of his grievance with the
non-petitioner pertaining to plot No. 330. In reply to the application under 0.7 Rule 11
C.P.C. it was stated that the plaintiff gave a notice u/s. 143 of the Rajasthan
Cooperative Societies Act to the Registrar to decide the disputed within two months but
the Registrar has not decided the dispute nor replied notice. Therefore, Sec. 75 is not
applicable. It was also stated that preliminary issue regarding jurisdiction can only be
decided after filing written statement. The argument that the Civil Court is not
competent to decide the issue as it is within the jurisdiction and purview of Sec. 75 of
the Act. But the trial court while considering the arguments observed that to oust
the jurisdiction on the basis of material it will be appropriate to decide the question
of jurisdiction of the court after recording evidence by framing issue on the
question of jurisdiction and this question cannot be decided on an application under
0.39 Rule 1 and 2 C.P.C. In view of this the case law cited by the learned counsel for
the appellant is not applicable to the facts of the present case. However, the learned
trial court will frame preliminary issue regarding jurisdiction and will decide it first on
merits. Thus, the learned lower court while passing the order dt. 25.7.1991 has not
acted in the exercise of its jurisdiction illegally or with material irregularity, so as to
call for any interference.
10.In the result, this revision petition is dismissed.
© Manupatra Information Solutions Pvt. Ltd.