Important point - Order 7, rule 11 (d) of CPC clearly mandates the court not to entertain a suit which is barred by any law for the time being in force.

1. Instant second appeal is filed under Section 100 CPC by the appellant-plaintiff against the judgment and decree dated 01.12.2016 passed by the learned Additional District Judge No.10, Jaipur Metropolitan (hereinafter referred to as ‘the first appellate court’) whereby the regular first appeal No.65/2015, filed by the plaintiff-appellant was dismissed and the order & decree dated 18.11.2016 passed by the learned Additional Civil Judge East, Jaipur Metropolitan (hereinafter referred to as the ‘trial court’) in Civil Suit No.167/2016, was confirmed. By the said order dated 18.11.2016, the application filed by the respondent No.4 under Order 7 Rule 11 was dismissed.

2. The brief facts leading to this second appeal are that the plaintiff-appellant filed a suit for permanent injunction in trial court against respondent-defendants for restraining them from demolishing the temple of Hanumanji, Mahadev ji and Mataji situated in Bal ji ka Khanda, Badi Chopad Jaipur and sifting of Idols. It has been averred on behalf of the appellant that it was initially observed by the trial court that suit is barred by law in the light of provision of section 39 of the Metro Railway (Construction of Works) Act, 1978 (in brief Act of 1978), however, subsequently the suit was registered and notices were issued to the respondent-defendants. Ultimately, while hearing an application filed on behalf of Respondent No.4 under order 7 rule 11, CPC, the suit was dismissed on the ground that it was barred by section 39 of the ‘Act of 1978’. The plaintiff-appellant filed an appeal against the said order of learned trial court before the first appellate court which dismissed the appeal holding that the trial court has not committed any error of fact and law in dismissing the suit. Hence the present second appeal.

3. I have heard the learned counsel for the parties and perused the record.

4. The learned Senior Counsel for the plaintiff-appellant Shri. Bajrang Lal Sharma, vehemently submits that after filing the suit initially it was observed by the learned trial court that the suit was barred by section 39 of the Act of 1978, therefore he approached the respondent Jaipur Metro Rail Corporation Limited (in short ‘Corporation’) through filing an application under the Right to Information Act seeking information about the designating the Competent Authority and Appellate Authority with their office address and also the Gazette Notification issued in that regard. He further submits that “However the Jaipur Metro Rail Corporation Limited by reply dated 5.10.2016 informed that no Competent Authority and Appellate Authority is designated and no Gazette Notification is issued in this regard.” Therefore, he filed an application under section 151, CPC with the submission that the said reply of the Corporation be taken on record and since no statutory authority is designate under the relevant Statute, the Civil Court has jurisdiction. Accordingly, the suit was registered. However, the suit was dismissed after hearing the application of respondent No.4 filed under Order 7 Rule 11 on the ground that the suit was barred by section 39 of the ‘Act of 1978’ even though no such ground was raised in the said application.

5. He submits that access to justice is fundamental right and if there is no statutory adjudicatory body in existence, the court should not turn the plaintiff of the gates without deciding his grievance on merits. In support of his submission, he extensively placed reliance on the judgments of the Hon’ble Apex Court in Ankta Kushwaha v. Pushap Sudan (2006) 8 SCC 509, D.K. Basu v. State of West Bengal and other (2015) 8 SCC 744 and Sheela Barse v. Union of India and Others (1988) 4 SCC 226. He also placed reliance on the following paragraph from an article of Justice Kurian Joseph titled ‘Judicial Legislation’, published in The Indian Advocate, Volume X