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2008 Supreme(Raj) 238
(Rajasthan High Court)
Honble PRAKASH TATIA, J.
Temple of Thakur Shri Mathuradassji, Chhota Bhandar - Appellant
Versus
Shri Kanhaiyalal & Ors. - Respondents
S.B. Civil First Appeal No. 232 of 2005
Decided On : February 18, 2008
M.C. Bhoot & Vinay Shrivastva, for Appellant; R.K. Thanvi, M.S. Singhvi, Sandeep Saruparia & Sudhir Saruparia, for Respondents; R.R. Kanwar, Dy.G.A., for Respondent-State;
Headnote:(a) C.P.C., Order 7 Rule 11, Sec. 151 – Dismissal of suit – Abuse of law and process of the Court – Held – Plaint can be rejected on the grounds mentioned in Order 7 Rule 11 C.P.C. like the suit is barred by law or it does not disclose the cause of action or proper Court fees has not been paid even after order of the Court – If the suit is abuse of process of the Court and cannot be dismissed u/O. 7 R. 11 C.P.C. then the Court is not helpless and can dismiss the suit invoking powers u/S. 151 C.P.C.(Para 15)
¼d½ fl-iz-la-] vknsk 7 fu;e 11] /kkjk 151 & okn [kkfjt djuk & fof/k ,oa U;k;ky; dh izfØ;k dk nq:i;ksx & vfHkfu/kkZfjr & fl-iz-la- ds vknsk 7 fu;e 11 esa mYysf[kr dkj.kksa ds vk/kkj ij okn i= [kkfjt fd;k tk ldrk gS tSls fd okn fof/k ls oftZr gS ;k ;g okn gsrq izdV ugha djrk ;k leqfpr U;k;ky; kqYd dk lank; U;k;ky; dh vkKk ds mijkar Hkh ugha fd;k x;k gS & ;fn okn U;k;ky; dh izfØ;k dk nq:i;ksx gks vkSj mls vknsk 7 fu;e 11 ds rgr [kkfjt ugha fd;k tk ldrk rks U;k;ky; vlgk; ugha gS og fl-iz-la- dh /kkjk 151 ds rgr kfDr;ksa dk iz;ksx djrs gq, okn [kkfjt dj ldrk gSA ¼in la[;k 15½
(b) C.P.C., Order 21 Rule 97 – Filing of successive application based on the same facts for the same relief without support of any proof – Held – Successive application based on the same facts and for the same relief could not have been entertained by executing Court – In a case where execution of the decree is resisted then the objector is required to place on record the sufficient material on the basis of which he can claim for entertaining his application and when application to object for execution of decree is filed – In absence of proof executing Court can dismiss the application summarily.(Paras 13 to 18) Appeal dismissed with costs.
¼[k½ fl-iz-la-] vknsk 21 fu;e 97 & fcuk fdlh lcwr ds leku rF;ksa ,oa leku vuqrks"k ij vk/kkfjr mRrjksRrj vkosnu nk;j djuk & vfHkfu/kkZfjr & leku rF;ksa ij vk/kkfjr ,oa leku vuqrks"k gsrq fu"iknu djus okys U;k;ky; }kjk mRrjksRrj vkosnu xzg.k ugha fd;s tk ldrs Fks & ,sls ekeys esa tgka fMØh ds fu"iknu dk izfrjks/k fd;k tkrk gS rks vH;kifr drkZ dks pkfg;s fd og i;kZIr lkexzh vfHkys[k ij j[ks ftlds vk/kkj ij og viuk vkosnu xzg.k djus dk nkok dj lds tc fMØh ds fu"iknu dh vH;kifr djus ds fy, vkosnu nk;j fd;k tkrk gS & lcwr ds vHkko esa fu"iknu U;k;ky; vkosnu laf{kIrr% [kkfjt dj ldrk gSA
(2). S.B. Civil First Appeal No.232/2005 has been preferred to challenge the judgment and decree dated 19th May, 2005 passed by the Court of District Judge, Rajsamand in Civil Execution Case No.6/2001 whereby the appellants application filed under Order 21 Rule 97 read with Section 151 CPC was dismissed.
(3). Since the matter is related to the same property and issue involved are common question of facts and law, therefore, these both appeals are heard together and are decided by this common judgment.
(4). The litigation has chequered history. One property was sold by one Krishan Kumar as his personal property to respondent nos. 1 to 6 (in both the appeals) on 18th Dec., 1978. It appears that some of the properties were already let out to State Government and, therefore, the purchasers respondent No. 1 to 6 after purchasing the property filed the suit for eviction of their tenants - respondent No. 7 to 10 (in S.B. Civil First Appeal No.232/2005) on the ground of personal bonafide necessity etc, which is Civil Original Suit No.29/81. The above suit was dismissed by the Court of Addl. District Judge, Rajsamand vide judgment and decree dated 15th Sept., 1990. The respondent nos.1 to 6 aggrieved against the judgment and decree of the trial Court dated 15th Sept., 1990 preferred a regular first appeal before this Court, which was registered as S.B. Civil First Appeal No.166/1990. In the first appeal, a written compromise was submitted by both the parties in terms of the order passed by the State Government dated 27th March, 1995. In view of the compromise between the parties, the eviction decree was passed by this Court on 24th May, 1995 against the tenants-respondents and in favour of the plaintiffs-respondents No. 1 to 6. It appears from the compromise dated 27th March, 1995 that the plaintiffs4 respondents nos. 1 to 6 agreed to donate one new school building to the respondent-State. It appears that despite of decree for eviction, the judgment-debtor including the State did not hand over vacant possession of the suit premises to the plaintiffs- respondents No. 1 to 6, therefore, in the year 2001 plaintiffs submitted execution petition, before the Executing Court, which was registered as Execution Case No.6/2001. During this execution, the plaintiffs gave alternate premises to the State for running school and for that purpose, they also executed a gift deed on 10th May, 2005. On 4.8.2005, the suit premises was vacated.
(5). It will be worthwhile to mention here that in the year 1996, one Ishwar Chand Sharma filed one PIL [DB Civil Writ Petition (PIL) No.1323/2006] before this Court. In DB Civil Writ Petition No.1323/1996 projected as PIL, Ishwar Chand Sharma stated that prior to his retirement he was working as Vice Principal in the Government School. The petitioner Ishwar Chand Sharma in the said writ petition prayed for restrained order against the judgment- debtor of Civil Original Suit No.29/81 against shifting the Government School in question from its rented premises to its new building, which was given in pursuance of compromise decree referred above. The above writ petition was dismissed by the Division Bench of this Curt vide judgment dated 1st Dec., 1999 after holding that the petitioner has clearly abused the process of this Court and has tried to stall the vacation of the old building of the school for ulterior motives. The Division Bench also took note of the compromise decree passed by this Court in S.B. Civil First Appeal No.166/1990 and held that in view of the compromise decree, in execution, the building has to be vacated. Ishwar Cha
