Durga Shankar Sharma And Ors vs Pushpa Sharma

This revision petition is directed against the order dated 20/1/2021 passed by Civil Judge (South), Udaipur City, Udaipur, whereby, the application filed

by the petitioners under Order VII Rule 11 CPC has been rejected.

The suit was filed by the respondent - plaintiff for mandatory & permanent injunction on 17/5/2014 against the petitioner no.1, her brother, in relation

to plot no. 199, Block - A, Chitrakoot Nagar, Bhuvana, Udaipur. It was indicated that the defendant, her brother, was somehow trying to illegally take

possession of the plot in question and was threatening the plaintiff for registering the plot in his name and has indulged in removing the gate and

demolishing the wall. It was alleged that the defendant, who is a lawyer, has threatened that by concocting the documents he would take possession of

the plot. Based on the said allegations, it was indicated that the cause of action finally arose on 5/5/2014 when again threat was given and extreme

misbehaviour was done. Based on the said submissions, relief was claimed for permanent injunction against the defendant not to trespass over the plot

in question and not to interfere with the plaintiff's possession and by way of mandatory injunction, to get the gate and wall reconstructed.

The plaint was got amended by impleading petitioner nos. 2 and 3, daughters of petitioner no.1, based on the subsequent event, whereby, the petitioner

no.1 transferred the plot in question to petitioner nos. 2 and 3 by sale deed dated 26/5/2014.

Written statement was filed by the petitioner no.1 inter alia claiming that the plaintiff had executed an agreement to sell dated 25/7/2012 qua the plot in

question in his favour and on 15/2/2013 the Power of Attorney was executed in his favour.

Further submissions were made that the consideration was paid by petitioner no.1 to the plaintiff and that he has been in possession of the plot in

question ever since. Thereafter, he has transferred the plot in favour of defendant nos. 2 and 3.

During the pendency of the suit, the petitioner first filed an application under Section 151 CPC requiring the plaintiff to pay court fees based on the

market value of the property, which application was rejected, which was carried in revision before this Court, wherein, on 26/5/2015, the Court

directed framing of preliminary issue on the said aspect. Based on which, issue no. 3- A was framed by the trial court, which came to be decided on

29/5/2018 by the trial court and it required the plaintiff to make payment of requisite court fees.

The order was challenged before this Court in S.B.Civil Writ Petition No. 14035/2018 by the plaintiff, which was allowed on 18/11/2020 by this Court

and the order passed by the trial court was set aside.

Now the defendants have filed an application under Order VII Rule 11 CPC inter alia on the ground that simple suit for injunction was not

maintainable and the same was liable to be dismissed.

The trial court, after hearing the parties, came to the conclusion that as to under what provision the suit was barred has not been indicated, the issues

have been framed and the suit is pending at the stage of evidence since the year 2017 and consequently rejected the application.

It is submitted by the petitioner no.1, who has appeared in person, that the trial court was not justified in rejecting the application under Order VII Rule

11 CPC inasmuch as the defendants are in possession of the suit property and as such a simple suit for injunction cannot be maintained.

Further submissions have been made that only in the circumstances as laid down in the case of Anuthula Sudhakar vs. P. Buchi Reddy : (2008) 4 SCC

594 the suit for injunction can be maintained, which are not available in the present case and, therefore, the trial court was not justified in rejecting the

application.

Further attempts were made to rely on the provisions of Section 53-A of the Transfer of Property Act, 1882 ('the Act, 1882') to contend that the

petitioners are in possession of the plot in question in part performance of the agreement and, therefore, also the suit is not maintainable and, therefore,

the order impugned passed by the trial court deserves to be set aside and the plaint deserves to be rejected.

I have considered the submissions made by petitioner no.1, who has appeared in person, and have perused the material available on record.

It is well settled that the application under Order VII Rule 11 CPC is required to be adjudicated based on the averments made in the plaint and the

defense sought to be raised by the defendants cannot be looked into for determining the said application. A perusal of the amended plaint nowhere

reflects that the plaintiff has averred anywhere that the petitioners are in possession of the plot in question, which would make her suit for injunction

not maintainable on any of the grounds sought to be alleged by the petitioners.

This Court while deciding the issue of valuation of the suit and court fees has come to the conclusion that the court fees paid, based on the suit for

injunction, was sufficient.

In view thereof, it cannot be said that the suit as filed by the plaintiff was barred on the ground alleged.

So far as the judgment in the case of Anathula Sudhakar (supra) is concerned, the issue based on the aspects laid down in the said judgment can only

be determined after the parties lead evidence and not in abstract, based on the averments made in the plaint, which averments, as noticed

hereinbefore, do not bring the case within the parameters of the said judgment.

The plea raised based on Section 53-A of the Act, 1882 is again by way of defense and cannot be made subject matter of the application under Order

VII Rule 11 CPC and, therefore, on that count also the plea, though not raised before the trial court, has no basis.

In view of the above discussion, there is no substance in the revision petition and the same is, therefore, dismissed.