AVDESH PANDEY Vs. KRISHAN KUMAR

JUDGEMENT

(1.) The petitioner in this revision, filed under Article 227 of the Constitution, is the defendant in Suit No.115 dated 11.09.2014 on the file of the learned Civil Judge (Junior Division), Gurgaon. The said suit was filed by the respondents herein for a declaration that the partition order dated 06.09.2013 passed by the Assistant Collector (Ist Grade), Gurgaon, and the mutation effected pursuant thereto, were illegal, null, void ab initio and not binding upon them. Further, they sought consequential relief by way of a permanent injunction restraining the petitioner from interfering with their peaceful possession over the suit land and from taking forcible possession thereof. While so, the petitioner filed an application in the suit under Order 7 Rule 11 CPC seeking rejection of the plaint on the ground that the suit was barred by law. However, by order dated 13.08.2015, the learned Civil Judge (Junior Division), Gurgaon, dismissed the application. Aggrieved thereby, the petitioner is before this Court.

(2.) Heard Shri Kunal Dawar, learned counsel for the petitioner/defendant, and Shri Vivek K. Sharma, learned counsel representing Shri Ashwani Gaur, learned counsel for the respondents/plaintiffs. Shri Kunal Dawar, learned counsel, would contend that Section 158(2)(xvii) of the Punjab Land Revenue Act, 1887 (as applicable in the State of Haryana) (hereinafter, referred to as the Act of 1887), bars the jurisdiction of the Civil Court and therefore, the suit plaint was liable to be rejected under Order 7 Rule 11(d) CPC. Learned counsel would further contend that the trial Court ought to have taken note of Section 41 (h) of the Specific Relief Act, 1963 (hereinafter, referred to as the Act of 1963). He would place reliance upon case law in support of his contentions. Per contra, Shri Vivek K. Sharma, learned counsel, would argue that, as the plaintiffs alleged that the partition order dated 06.09.2013 was a nullity, the jurisdiction of the Civil Court was not barred and the trial Court was fully justified in rejecting the application under Order 7 Rule 11 CPC. Parties shall hereinafter be referred to as arrayed in the suit.

(3.) It is an admitted fact that aggrieved by the partition order dated 06.09.2013 passed by the Assistant Collector (Ist Grade), Gurgaon, the plaintiffs filed an appeal before the Collector/Sub-Divisional Magistrate, Gurgaon, and the same was dismissed on 04.08.2014. Surprisingly, this aspect of the matter did not find mention in the suit plaint. Further, without invoking the statutory revisionary remedy available to them under the Act of 1887 against the aforestated appellate order dated 04.08.2014, the plaintiffs approached the Civil Court against the primary order, viz., the partition order dated 06.09.2013, which had already merged in the appellate order dated 04.08.2014. Perusal of the order under revision reflects that the trial Court accepted the assertion of the defendant that Section 158(2)(xvii) of the Act of 1887 would have application and that the challenge to the partition order dated 06.09.2013 would not lie before it. However, the trial Court opined that as the plaintiffs had not only challenged the said partition order but also sought the relief of injunction, restraining the defendant from interfering with their possession, its jurisdiction would not be barred.