ASHOK PAL SINGH Vs. PREM CHAND SHARMA

JUDGEMENT

(1.) The instant civil revision petition is preferred by the petitioners-defendants aggrieved from the order dtd. 3/11/2023 in Civil Suit No.470/2023 titled as Prem Chand Sharma Vs. Ashok Pal and Others passed by learned Civil Judge (South) Kota, whereby an application under Order VII Rule 11 of CPC was dismissed.

(2.) Learned counsel for the petitioners-defendants while relying upon grounds of the civil revision petition submitted that respondent No.1-plainitiff-Prem Chand Sharma has filed a suit for declaration and permanent injunction with the averment that an agreement to sell was executed in favour of plaintiff for 7 plots in Khasra No.50 in Village Lakhava Sub-Tehsil Mandana, District Kota, having total area of 13095 sq. feet. He further submitted that the plaintiff has become title holder after execution of registered deed of said area. He also submitted that the plaintiff has derived a title in the shoe of erstwhile Khatedar Pandit Shrikant and Pandit Shrikant Sharma has filed a civil suit against the present petitioners before the Court of District Judge, which was resulted into a compromise decree. He further submitted that the plaintiff has filed a Civil Suit No.334/2023 and same was returned under Order VII Rule 10 of CPC on 18/7/2023 for filing before the Court of competent jurisdiction. He also submitted that afterwards present civil suit is filed before the same Court. An application under Order VII Rule 10 and 11 read with Order II Rule 2 and Sec. 151 CPC was filed by present petitioners and the trial Court without considering that on earlier occasion Civil Suit No.334/2023 was returned on the ground that Civil Court has no jurisdiction to entertain a civil suit about same agriculture land but still dismissed the application filed by the petitioners-defendants. He further submitted that the trial Court has committed serious error by not considering the previous order passed by it in a suit filed by same plaintiff. At last, he placed reliance upon judgment in case of Pyarelal Vs. Shubendra Pilania (Minor) Thr. Natural Guardian (father) Pradeep Kumar Pilania and Others : (2019) 3 SCC 692.

(3.) Aforesaid contentions were opposed by learned counsel for the respondent No.1-plaintiff and submitted that the trial Court has rightly dismissed the application as the present suit is maintainable only before a Civil Court. He also submitted that while filing the instant suit, the plaintiff has mentioned filing of previous Civil Suit No.334/2023 and return of plaint under Order VII Rule 10 CPC on 18/7/2023. He also submitted that the land in question is barren and not used for any agricultural purpose. He also submitted that the issue of title is also involved and he has not concealed any material from the trial Court. He also referred the impugned order and submitted that neither Order II Rule 2 of CPC prohibits filing of subsequent suit nor the law prohibits filing of fresh suit on same cause of action. He also submitted that the trial Court has not committed any error and if there is any issue with regard to maintainability and jurisdiction of the Civil Court, then it is a mixed question of fact and law and can be decided after framing the issues and recording the evidence. Learned counsel has further placed reliance upon written submissions and additional written submissions submitted by him.