Full Judgment
6. h July 2012. HON'BLE MR JUSTICE DINESH MAHESHWARI HON'BLE MR JUSTICE NARENDRA KUMAR JAIN-II Dr. Sachin Acharya, for the appellants. <<>> BY THE COURT: By way of this intra-court appeal, the petitioners-appellants, who are the defendants in a revenue suit (No. 103/2003)for declaration of khatedari rights and perpetual injunction as filed by the respondent No.1 in the Court of Sub-Divisional Officer, Chittorgarh, seek to question the order dated 02.05.2012 whereby the learned Single Judge of this Court has allowed the writ petition filed by the plaintiff-respondent No. 1 (CWP No. 1923/2009) and, in consequence, has set aside the impugned orders as passed by the subordinate Revenue Authorities on 13.06.2005, 22.06.2006 and 10.12.2008 whereby, respectively, the Sub-Divisional Officer, Chittorgarh had allowed an application filed by the present appellants under Order VII Rule 11 of the Code of Civil Procedure (CPC); the Revenue Appellate Authority, Chittorgarh had dismissed the appeal filed by the plaintiff; and then, the Board of Revenue had dismissed the second appeal filed by the plaintiff. The learned Single Judge has considered the facts of the case as well as the law applicable and has upheld the contentions D.B. Civil Special Appeal (W) No. 574/2012. Dinesh & Ors. Vs. Mathura Lal & Ors. [ 2 ] urged on behalf of the petitioner-plaintiff that for the purpose of Order VII Rule 11 CPC, only the plaint averments were required to be seen and the Revenue Authorities were not justified in taking note of the facts as pleaded by the defendants and then, examining the maintainability of the suit on the basis of the version of the defendants. The learned Single Judge has referred to the reliefs as claimed by the plaintiff for declaration of khatedari rights in relation to the land in question, comprised in Aaraji No. 2214; and for setting aside of the entries in the revenue record. The learned Single has, thereafter, referred to the scope of Order VII Rule 11 CPC with reference to the decision of the Hon'ble Supreme Court in the cases of Saleem Bhai Vs. State of Maharashtra : AIR 200.SC 75.and Mayar (H.K.) Ltd. Vs. Owners & Parties, Vessel M.V. Fortune Express :
2006. (3) SCC 10.and has found that in the present case, the Revenue Authorities have failed to consider that the plaint was not liable to be rejected under Order VII Rule 11 CPC. The learned Single Judge has, inter alia, observed as under:- In the instant case, the averments which have been made in the plaint, in the opinion of this Court, certainly discloses the cause of action and that can be examined & determined by the revenue authority after written statement being filed by the respondent (defendants) obviously after opportunity of hearing being afforded to the litigating parties but the revenue authority has taken note of the facts which respondent-defendant placed on record with the application filed under Order VII Rule 11 CPC while examining the controversy under order impugned to non- suit the petitioner holding that the suit was not maintainable. However, it is not the case of the respondents that what is being prayed for by the petitioner in his revenue suit is not the dispute which could be examined under the provisions of Rajasthan Tenancy Act or it is barred by law, in absence whereof the finding recorded by the revenue authority while accepting D.B. Civil Special Appeal (W) No. 574/2012. Dinesh & Ors. Vs. Mathura Lal & Ors. [ 3 ] application under O. VII, R. 11, CPC, in the opinion of this Court is not sustainable and the orders impugned deserve to be quashed. The learned counsel for the appellants has strenuously argued that the suit as filed remains fundamentally frivolous and vexatious; and is not likely to result in any decree in favour of the plaintiff, for his not having even a semblance of right in the land in question, particularly for having alienated the same. It is submitted that such false and vexatious suit does not deserve even a trial and the Revenue Authorities were totally justified in allowing the application under Order VII Rule 11 CPC. We are afraid, the submissions as made by the learned counsel for the appellants fall short of making out a case for interference in intra-court appeal. As to whether the plaintiff has a subsisting right in the land in question, is a question sought to be raised by the defendants with reference to their plea in defence. Even if the defendants are entitled to raise such a plea and to invite decision thereupon, it cannot form a basis for rejection of the plaint under Order VII Rule 11 CPC because on a perusal of the plaint averments, it cannot be said that the plaint does not disclose any cause of action. It remains trite that for the purpose of clauses (a) and (d) of Rule 11 of Order VII of the Code of Civil Procedure, the averments in the plaint are germane; and the pleas taken or sought to be taken by the defendant in the written statement are wholly irrelevant. D.B. Civil Special Appeal (W) No. 574/2012. Dinesh & Ors. Vs. Mathura Lal & Ors. [ 4 ] As to whether the cause as stated is bona fide or not, or it is right or wrong, or it leads to any right to relief or not, are the questions required to be gone into at the relevant stage but, on the submissions made by the defendants, the plaint could not have been rejected. The learned Single Judge has, in our opinion, rightly found the orders impugned as passed by the subordinate Revenue Authorities not in conformity with the parameters of their jurisdiction and has, therefore, rightly interfered with the same in the writ jurisdiction. In view of the above, we find no reason to consider any interference in this intra-court appeal. The appeal fails and is, therefore, dismissed. (NARENDRA KUMAR JAIN-II),J.
(DINESH MAHESHWARI),J.
/Mohan/