Phool Chand S/O Chandan Lal vs Rajkumar S/O Shri Chandan Lal on 25 April, 2025

Rajasthan High Court – Jaipur

Phool Chand S/O Chandan Lal vs Rajkumar S/O Shri Chandan Lal on 25 April, 2025

Author: Narendra Singh Dhaddha

Bench: Narendra Singh Dhaddha

[2025:RJ-JP:17140]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                S.B. Civil Revision Petition No. 152/2024

Phool Chand S/o Chandan Lal, R/o Mandi Bazar, Kaman At
Present R/o 501, Sector-C South Nirman Nagar King Road,
Jaipur
                                                                     ----Petitioner
                                     Versus
1.       Rajkumar S/o Shri Chandan Lal, R/o Mandi Bazar, Kaman,
         Bharatpur (Rajasthan)
2.       Sub Registrar, Sub- Registrar Office, Kaman, Deeg,
         Rajasthan
                                                                  ----Respondents

For Petitioner(s) : Mr. J. P. Goyal, Senior Adv. assisted
by Ms. Sakshi Tiwari, Adv.

Mr. Siddharth Singh, Adv.

Ms. Yashika Vijayvargiya, Adv.

Ms. Meenal, Adv.

For Respondent(s) : Mr. Rajeev Surana, Senior Adv.

assisted by Mr. Anuj Rohila, Adv.

& Mr. Umang Jain, Adv.

HON’BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Judgment

Date of Judgment 25/04/2025

The present revision petition has been filed by the petitioner-

defendant (for short ‘the defendant’) under Section 115 CPC

against the order dated 13.03.2024 passed by the Civil Judge,

Kaman (Bharatpur) (for short ‘the trial court’) in Civil Suit

No.85/2023, whereby the trial court dismissed the application filed

by the defendant under Order 7 Rule 11 CPC.

Learned Senior Counsel for the defendant submits that

respondent No.1-plaintiff (for short ‘the plaintiff’) filed a suit for

permanent injunction against the defendant in which defendant

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filed an application under Order 7 Rule 11 CPC to the effect that

no cause of action accrued to the plaintiff. By way of the present

suit, the plaintiff wanted to execute the oral agreement dated

10.02.1996 by which he is said to have given Rs.1,06,500/-.

Learned Senior Counsel for the defendant further submits

that plaintiff had not filed the suit for specific performance of the

contract but he had simply filed the suit for injunction. That was

not maintainable. The suit was also not within limitation, but trial

court vide order dated 13.03.2024 wrongly dismissed the

application under Order 7 Rule 11 CPC filed by the defendant. So,

order dated 13.03.2024 passed by the trial court be set aside and

suit filed by the plaintiff be dismissed being barred by law and

limitation.

Learned Senior Counsel for the defendant has placed reliance

on the following judgments:-

(1) Raghwendra Sharan Singh V/s. Ram Prasanna Singh

(Dead) by Legal Representatives reported in (2020) 16 SCC

601;

(2) Sanjay Sharma V/s Kotak Mahindra Bank Ltd. & Ors. in

Civil Appeal(@ SLP(C) No.330/2017 decided on 10.12.2024.

Learned Senior Counsel for the plaintiff has opposed the

arguments advanced by learned Senior Counsel for the defendant

and submitted that trial court has rightly dismissed the application

filed by the defendant under Order 7 Rule 11 CPC. Question of

limitation as well as cause of action being mixed question of law

would be decided after taking evidence of the parties. Trial court

while deciding the application under Order 7 Rule 11 CPC cannot

take into consideration the averments made in the plaint nor

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defence of the defendant. So, the present petition being devoid of

merit, is liable to be dismissed.

Learned Senior Counsel for the plaintiff has placed reliance

upon the following judgments:-

(1) Mr. Glen Rodrigues V/s Abhunik Metals Ltd. reported in

2014 O Supreme (Ori) 618;

(2) Shyam Sunder Batra & Anr. V/s. Brahamveer reported in

2014 0 Supreme (All) 2700;

(3) Sri biswanath Banik & Anr. V/s Smt. Sulanga Bose &

Ors. reported in 2022 3 Supreme 705.

I have considered the arguments advanced by learned Senior

Counsel for the defendant as well as learned Senior Counsel for

the plaintiff and perused the impugned order.

It is an admitted position that disputed property which

belongs to the father of the defendant as well as plaintiff was

partitioned on account of Will. The contention of the plaintiff is

that on account of need of money to purchase the house in Jaipur,

the defendant had taken Rs.1,06,500/- on 10.02.1996 from the

plaintiff and gave possession of his share in the house to the

plaintiff. The plaintiff wanted to execute the so-called oral

agreement entered in between the parties on 10.02.1996. The suit

was filed by the plaintiff in the year 2023, which was time barred.

It is also pertinent to mention that plaintiff had to file the

suit for specific performance regarding so-called oral agreement

but he had simply filed the suit for injunction which is not

maintainable. So, in my considered opinion, trial court had

committed en error in dismissing the application filed by the

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defendant under Order 7 Rule 11 CPC. So, order dated 13.03.2024

passed by the trial court deserves to be set aside.

The revision petition filed by the defendant is allowed. The

order dated 13.03.2024 passed by the trial court is set-aside and

the suit filed by the plaintiff is dismissed on the ground of

limitation.

Pending application(s), if any, also stand(s), disposed of.

(NARENDRA SINGH DHADDHA),J
Avinash/92

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