ARUN KAUSHAL Vs. JANG BAHADUR

JUDGEMENT

(1.) Prayer is for setting aside order dtd. 10/7/2024 passed by learned Civil Judge (Junior Division), Patiala, whereby application under Order 7 Rule 11 CPC filed by the petitioner/defendant No.1 seeking rejection of the plaint has been dismissed.

(2.) Plaintiff filed a suit for declaration claiming that his father namely Som Nath Kaushal is missing since 11/10/2017. The General Power of Attorney dtd. 15/3/2011 executed by Som Nath Kaushal in favour of defendant No.1 and the sale deeds executed by defendant No.1 acting as Power of Attorney of Som Nath Kaushal are result of fraud and are forged documents. Further prayer was for grant of permanent injunction restraining the defendants from alienating and transferring the property as described under the head-note of the plaint. Further defendant No.1 filed an application under Order 7 Rule 11 CPC claiming that the suit was filed before the Courtwhich has no jurisdiction to try and entertain the same as the properties are situated within the jurisdiction of Sub-Divisional Courts at Rajpura and at Ambala and thus, Court at Patiala has no jurisdiction to try the suit.

(3.) Further it was claimed that Som Nath Kaushal himself earlier filed a petition under the Maintenance and Welfare of Parents and Senior Citizenship Act, 2007, which already stands decided by a forum of competent jurisdiction vide order dtd. 27/4/2017 on the basis of compromise between the parties and thus, the present suit was barred by res judicata. Further ground pleaded in the application was with respect to deficiency in the Court fee. It was claimed that the plaintiff has challenged the sale deeds and has not affixed the ad valorem Court fee on the value of the property. Trial Court vide impugned order dismissed the application holding that the issue of jurisdiction cannot invoke the jurisdiction of claim. So far as the plea of res judicata is concerned, the same being pure question of fact, cannot be determined without there being evidence on the record. So far as deficiency in the Court fee is concerned, trial Court opined that Power of Attorney has been challenged on the ground of fraud. Plaintiff is not executant of the sale deed and has not claimed possession thus, he was not required to pay ad valorem Court fee.