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Harish Chandra v/s Kamlesh Kumar & Others

    S.B. Civil Revision No. 3 of 2017

    Decided On, 08 January 2018

    At, High Court of Rajasthan Jodhpur Bench

    By, THE HONOURABLE MR. JUSTICE ARUN BHANSALI

    For the Petitioners: H.S. Sidhu, Advocate. For the Respondents: Sushil Bishnoi, Advocate.



Judgment Text

This revision petition has been filed by the petitioner aggrieved against the order dated 23.9.2016 passed by the Additional Senior Civil Judge, Hanumangarh (‘the trial court’) whereby, the application filed by the petitioner under Order VII Rule 10 CPC has been rejected.

The respondents filed a suit seeking mandatory and perpetual injunction against the petitioner pertaining to the water course.

The petitioner filed application under Order VII Rule 11 CPC, inter alia, taking the plea that the suit was barred by law in view of the pr

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ovisions of Rajasthan Land Revenue Act, 1956, as well as Section 207 of the Rajasthan Tendency Act, 1955.

The application was rejected by the trial court on 29.7.2011, inter alia, holding that the submissions that suit was barred by limitation and that the Civil Court was not having jurisdiction, were not established.

Feeling aggrieved, the petitioner filed S.B. Civil Revision Petition No.442/2011.

The said revision petition was dismissed by order dated 5.5.2015 by this Court on coming to the conclusion that there was no jurisdictional error in the order dated 29.7.2011 passed by the trial court.

It appears that thereafter, the petitioner filed present application under Order VII Rule 10 CPC with the similar submissions that as the jurisdiction pertaining to the subjectmatter of the suit lies with the Revenue Authorities, the plaint be returned back to the plaintiff for filing the same before a competent Revenue Authority.

The trial court by its order dated 23.9.2016, inter alia, came to the conclusion that the earlier application filed by the petitioner under Order VII Rule 11 CPC pertaining to the jurisdiction of the Court, had been rejected and, therefore, the application under Order VII Rule 10 CPC cannot be maintained.

It is submitted by learned counsel for the petitioner that the trial court committed error in coming to the conclusion that the application filed by the petitioner under Order VII Rule 10 CPC was not maintainable. It was submitted that jurisdiction of the Court under Order VII Rule 11 CPC and under Order VII Rule 10 CPC is different and, therefore, the order passed under Order VII Rule 11 CPC, would not operate as res judicata while deciding the application under Order VII Rule 10 CPC and, therefore, the order impugned deserves to be quashed and set aside.

Further submissions have been made that it is apparent from the allegations made in the plaint that it is only the Revenue Courts, which have the jurisdiction pertaining to the subjectmatter of the suit and, therefore, the order impugned also deserves to be quashed and set aside.

Learned counsel appearing for the respondents supported the order impugned. It was submitted that once the plea pertaining to jurisdiction raised by the petitioner had been negated by the trial court while rejecting the application under Order VII Rule 11 CPC and the said order has been upheld by this Court by rejecting the revision petition, it was not open for the petitioner to file another application under a different provision with the same submissions and as such the order impugned is just, the revision petition deserves to be dismissed.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

The petitioner in his application specifically raised the plea regarding the jurisdiction of the Civil Courts being barred essentially based on the provisions of Section 207 of the Rajasthan Tendency Act, 1955, on the ground that the subjectmatter of the suit would only be decided by the Revenue Courts and, therefore, plaint deserves to be rejected under Order VII Rule 11(d) CPC.

The trial court by its order dated 29.7.2011 on coming to the conclusion that the suit was maintainable before the Civil Courts, dismissed the said application, which order was upheld by this Court, while dismissing the revision petition filed by the petitioner.

It appears that once the issue raised by the petitioner pertaining to the jurisdiction of the Civil Court was put to rest by dismissal of the revision petition, the petitioner adopted a circuitous route by way of filing another application under Order VII Rule 10 CPC raising identical plea that the jurisdiction lies with the Revenue Courts and, therefore, the plaint be returned for being presented before appropriate authority.

The said application, raising identical plea pertaining to the jurisdiction / lack of jurisdiction of the Civil Court, was rightly rejected by the trial court on account of passing of its earlier order, which order had already been upheld by this Court.

The submission made by learned counsel for the petitioner that while provisions of Order VII Rule 11 CPC deals with rejection of plaint and provisions of Order VII Rule 10 CPC deals with return of the plaint and, therefore, the earlier order passed by the trial court on application under Order VII Rule 11 CPC would not operate as res judicata, cannot be countenanced, inasmuch as, once a finding on the jurisdictional aspect as to whether the dispute raised is triable by the Civil Court or Revenue Court, has been determined by the Court while deciding application under Order VII Rule 11 CPC, seeking determining of the same issue on an application filed under Order VII Rule 10 CPC would be seeking decision on the same issue all over again, which cannot be permitted and would be barred by principles of res judicata / constructive res judicata.

In view thereof, there is no substance in the revision petition, the same is, therefore, dismissed.
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