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Rajasthan High Court – Jaipur
Roz Rajeshwari Benzamin Wife Of Late … vs Amit Kristofar Harman Son Of Shri … on 22 April, 2025
Author: Narendra Singh Dhaddha
Bench: Narendra Singh Dhaddha
[2025:RJ-JP:16754]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Revision Petition No. 324/2024
Roz Rajeshwari Benzamin Wife Of Late Shri Benzamin Uma,
Aged About 80 Years, Resident Of House No. 61-62, Presently
Resident Of House No. 286-287, In Front Of Kavita School, Gali
Number Sade Panch, Ward No. 47, Dadwara Kota Junction Kota
(Raj.)
----Petitioner
Versus
Amit Kristofar Harman Son Of Shri Thiyodor Harman, Aged
About 52 Years, Resident Of House No. 61-62, Presently Resi-
dent Of House No. 286-287, In Front Of Kavita School, Gali
Number Sade Panch, Ward No. 47, Dadwara Kota Junction Kota
(Raj.)
----Respondent
For Petitioner(s) : Mr. Rajneesh Gupta, Adv.
For Respondent(s) : Mr. Nitin Kumar Sharma, Adv.
HON’BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Judgment
Date of Judgment :: 22/04/2025
This civil revision petition has been filed by the petitioner-de-
fendant (for short ‘the defendant’) under Section 115 CPC against
the order dated 06.09.2024 passed by Additional Civil Judge No.1,
North, Kota in Civil Suit No.449/2024, whereby the application
filed by the defendant under Order 7 Rule 11 CPC has been
dismissed.
Learned counsel for the defendant submits that respondent-
plaintiff (for short ‘the plaintiff’) filed a suit for permanent as well
as mandatory injunction against the defendant and by way of the
suit defendant sought the vacant possession of the disputed
premises but plaintiff had not paid the court fees as per Section
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[2025:RJ-JP:16754] (2 of 3) [CR-324/2024]
29 of the Rajasthan Court Fees and Suit Valuation Act, 1961. The
defendant filed an application under Order 7 Rule 11 CPC before
the trial court but trial court wrongly dismissed the application
filed by the defendant.
Learned counsel for the defendant further submits that the
order of the trial court is also required to be set aside because no
cause of action arose against the defendant.
Learned counsel for the defendant has placed reliance upon
the following judgment:-(1) Kamleshwar Kishore Singh Vs.
Paras Nath Singh and others in Appeal (Civil)
No.7952/2001 decided on 22.11.2001 and (2) Kamla and
Others Vs. Ramesh Chandra and Others in S.B. Civil Revi-
sion Petition No.529 of 2001.
Learned counsel for the plaintiff has opposed the arguments
advanced by learned counsel for the defendant and submitted that
cause of action was a mixed question of law and fact. The plaintiff
had paid the requisite court fees, so trial court rightly came to the
conclusion that objections regarding cause of action as well as
court fees would be decided after evidence of the parties. So, the
present petition filed by the defendant being devoid of merit, is li-
able to be dismissed.
I have considered the arguments advanced by learned
counsel for the defendant as well as learned counsel for the
plaintiff.
It is an admitted position that plaintiff filed the present suit
for vacant possession of the disputed premises but he had not
paid the court fees as per Section 29 of the Rajasthan Court Fees
and Suit Valuation Act, 1961, So far as cause of action was
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[2025:RJ-JP:16754] (3 of 3) [CR-324/2024]
concerned, it was mixed question of law and fact. So, in my
considered opinion, trial court had committed an error in dismiss-
ing the application filed by the defendant in entirety. So, petition
filed by the defendant deserves to be partly allowed.
The present civil revision petition is partly allowed and order
dated 06.09.2024 passed by the trial court qua court fees is set
aside and trial court is directed to procure the court fees as per
Section 29 of the Rajasthan Court Fees and Suit Valuation Act,
1961.
Pending application(s), if any, stand, disposed of.
(NARENDRA SINGH DHADDHA),J
AVINASH GULERIA /120
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