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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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[2025:RJ-JP:17140] (2 of 4) [CR-152/2024]
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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