A voidable transaction is not illegal until the party entitled to avoid the transaction takes legal proceedings and has the voidable transaction declared void.

1. This petition has been filed with the following prayer :

(i) By an appropriate writ, order or direction, the impugned judgment and decree dated 12.05.2009 (Annexure-5) passed by the learned Assistant Collector, Chomu, Judgment dated 01.02.2010 (Annesure-6) passed by the learned Revenue Appellate Authority, Jaipur and judgment dated 02.03.2010 (Annexure-7) passed by the learned Board of Revenue, Ajmer may kindly be quashed and set aside and the application of the respondent No.5 Bharathari filed under Order 7 Rule 11 Civil Procedure Code may kindly be dismissed with costs and the suit of the petitioners be ordered to be decreed as prayed for.

2. Mr. R.K. Goyal appearing for the petitioners submits that courts below have mechanically resorted to Order 7 Rule 11 Civil Procedure Code in dismissing the suit filed by the petitioners-plaintiffs for declaration and injunction against the defendants, private respondents herein.

Order 7 Rule 11 Civil Procedure Code reads as under :

Rejection of Plaint - The plaint shall be rejected in the following cases :

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule 9.

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.

3. The argument is that no matter whatever the merits of the case unless a suit laid falls specifically within any clause of Order 7 Rule 11 Civil Procedure Code, it cannot be dismissed at the inception. Counsel's argument is that the land in issue was purchased by a registered sale-deed on the basis of prior possession from the predecessors and ancestors of the private respondents in the year 1960 at which point of time sale by scheduled tribe person to non scheduled tribe person were not void but only voidable and came to be statutorily declared void only effective 01.05.1964. His submission is that no suit ever came to be filed by the private respondents or their predecessors in interest seeking declaration of the sale in 1960 in favour of the petitioners-plaintiffs as a void transaction. His further submission is that whatever the merits and demerits of the petitioners' suit for declaration and injunction against respondent-defendant No.4, the same has to be addressed on the basis of the pleadings of the parties, framing of issues, evidence laid and the obtaining position of law at the time of transaction. Mr. R.K. Goyal has relied upon the judgment of the Hon'ble Supreme Court in the case of Popat and Kotecha Property Vs. State Bank of India Staff Association, (2005) 7 SCC 510 to reiterate the universally accepted legal position.

4. Mr. K.K. Mehrishi appearing for the respondents would submit that the courts below including the Board of Revenue have rightly dismissed the suit of the petitioners-plaintiffs with reference to Order 7 Rule 11 Civil Procedure Code more particularly clause (d) thereof which provides that the plaint shall be rejected inter alia where the suit appears from the statement in the plaint to be void in law. His submission is that th