Ramkanwari vs Babu Lal And Ors

By the instant revision petition under Section 115 CPC, petitioner-defendant has assailed order dated 17.12.2018, passed by Civil Judge, Jayal, District Nagaur (for short, 'learned Court below'). Learned Court below, by the order impugned, rejected application of the petitioner-defendant under Order 7 Rule 11 CPC in a suit for cancellation of sale-deed and perpetual injunction.

The facts, in brief, are that respondent-plaintiff filed a suit for cancellation of sale-deed dated 30.11.2005 and issuance of perpetual and mandatory injunction. Resisting the suit of the respondent-plaintiff, on behalf of petitioner, an application under Order 7 Rule 11 CPC was laid before the learned Court below by taking shelter of clause (a) & (d) of Rule 11 of Order 7 CPC. In the application, it is, inter-alia, averred by the petitioner that on a meaningful reading of the plaint, the same is not disclosing cause of action and consequently it is barred by law.

Learned trial Court, after considering the submissions made on behalf of petitioner as well as respondent-plaintiff, by the order impugned, rejected the application. Learned Court below has found that upon reading of the plaint in its entirety, prima facie, it discloses accrual of cause of action to the respondent-plaintiff and furthermore from the averments made in the plaint, the suit appears to be filed within the period of limitation. Besides that, it is also observed that in the backdrop of facts and circumstances the question relating to limitation cannot be construed as pure question of law but is also a mixed question of fact and law and, therefore, same can be adjudicated after taking evidence of rival parties.

In my considered opinion, learned Court below has not committed any jurisdictional error in nixing the application of the petitioner-defendant under Order 7 Rule 11 CPC. The impugned order has neither occasioned any failure of justice, nor there is any material irregularity in exercise of jurisdiction by learned Court below.

Accordingly, the revision petition fails and the same is hereby rejected.

Before parting, it may be observed that the question of limitation can very well be agitated by the petitioner before the learned trial Court, to be adjudicated by it in accordance with law.