Pushpa And Ors vs Yogendra Dhakad And Ors

By the instant revision petition under Section 115 CPC petitioner-defendants have challenged order dated 02.11.2018 passed by Civil Judge, City-North, Udaipur (for short, 'learned Court below'), whereby learned Court below has rejected their application under Order 7 Rule 11 CPC in a suit for perpetual and mandatory injunction.

The bare necessary facts are that respondent-plaintiffs filed a suit against petitioners for perpetual and mandatory injunction precisely questioning the construction which is sought to be raised by them on the plot in dispute.

Resisting the suit, petitioners filed an application under Order 7 Rule 11 CPC that suit is barred by law inasmuch as plaintiffs have also sought declaration about the construction permission granted to them, and therefore, same is barred by virtue of Section 73(9) of the Urban Improvement Act, 1959.

The main contention of the petitioners was that if the respondent-plaintiffs are having any grievance about the construction permission then the remedy of appeal is available under the aforesaid provision, and as such, the suit is barred in law.

The learned trial Court, after hearing arguments and perusal of the plaint, found that the suit was simply for perpetual and mandatory injunction questioning the nature of construction sought to be raised by the petitioners, and therefore, it is rather difficult to construe that same is barred by law, so as to attract Clause (d) of Rule 11 of Order 7 CPC.

Learned counsel has placed reliance on a judgment of Jaipur Bench of this Court in case of Rohit Singh Vs. Vishambhar Dayal Shukla (S.B. Civil Revision Petition No.57/13), decided on 04.02.2014.

I have examined the judgment relied on by learned counsel for the petitioners, which is factually distinguishable, inasmuch as a meaningful construction of the averments made in the plaint, it is rather difficult to comprehend that respondent-plaintiffs have sought declaration about the construction permission granted to the petitioners.

In totality, I am afraid, learned Court below has not committed any illegality or material illegality in exercise of its jurisdiction warranting interference in limited scope of judicial review under Section 115 CPC.

Consequently, the revision petition fails, same is hereby rejected.