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2009 Supreme(Raj) 1068
[Citation : 2010(1) RLW 140 (Raj.)]
(Rajasthan High Court)
Abdul Fazal Vs. M/s. S.J. Marble Mines & Ors. (Vyas, J.)
HON'BLE GOPAL KRISHAN VYAS, J.
Abdul Fazal
Versus
M/s. S.J. Marble Mines & Ors.
S.B. Civil Revision Petition No. 178 of 2009, decided on 09.09.2009
Rajesh Joshi, for Petitioner;
J.R. Patel, for Respondent(s)
Headnote:C.P.C., Order 7, Rule 11, Sec. 151, Order 14 Rule 2 — Rejection of plaint — Held — At the time of deciding application u/O 7 Rule 11(d) CPC the Court is required to examine the pleadings of the plaint and if in pleadings, it appears to the Court that there is ground that suit is barred by any law and such argument is substantiated by any provision of law, then the Court can exercise its power u/O. 7 R. 11(d) CPC — It restricts the unnecessary trial where the jurisdiction is not vested in the Court and such provision is required to be strictly followed by the Court of law — Petitioner-defendant nowhere pleaded that suit is barred by any law — Committed no illegality in rejecting application.
Revision dismissed. (Paras 13 to 16)
fl-iz-la-] vknsk 7 fu;e 11] /kkjk 151( vknsk 14 fu;e 2 & okn i= fujLr djuk & vfHkfu/kkZfjr & fl-iz-la- ds vknsk 7 fu;e 11¼?k½ ds rgr vkosnu fofufpr djrs le; U;k;ky; dks okn i= ds vfHkopuksa dk ijh{k.k djuk pkfg;s vkSj ;fn vfHkopuksa esa ;g izrhr gksrk gS fd okn ds fdlh dkuwu ls oftZr gksus dk vk/kkj ekStwn gS vkSj ,slk rdZ fof/k ds fdlh izko/kku ls izekf.kr gksrk gS rks U;k;ky; fl-iz-la- ds vknsk 7 fu;e 11¼?k½ ds rgr viuh kfDr;ksa dk iz;ksx dj ldrk gS & ;g izko/kku vuko;d fopkj.k dks fucZfU/kr djrk gS tgka U;k;ky; esa vf/kdkfjrk fufgr ugha gks vr% ,sls izko/kkuksa dh U;k;ky; }kjk l[rh ls vuqikyuk dh tkuh pkfg;s & izkFkhZ izfroknh us dgh Hkh ;g vfHkokd~ ugha fd;k fd okn fof/k ls oftZr gS & vkosnu fujLr djus esa dksbZ voS/kkfudrk dkfjr ugha dhA ¼in la- 13 ls 16½
iqujh{k.k [kkfjt dhA
2. According to brief facts of the case, the respondent-plaintiffs preferred suit for declaration and permanent injunction, in which, the plaintiffs prayed that order dated 13.2.2009 passed by the Mining Engineer, Makrana in exercise of powers conferred under Rajasthan Minor Mineral Concession Rules, 1986 may be quashed. After filing aforesaid civil suit, the respondent-plaintiffs also preferred a revision petition before the State Government viz., Deputy Secretary, Mines under Rule 47 of the Rules of 1986 against the same order. That revision petition was dismissed by the Deputy Secretary, Mines vide order dated 2.3.2009.
3. In the civil suit before the Addl. District Judge, Parbatsar, petitioner-defendant filed application under Order VII Rule 11, C.P.C. submitting that the civil suit is not maintainable on the ground that the same is based upon agreement which is void under the mining law and further, the same is not maintainable in view of Section 23 of the Indian Contract Act. It is also pleaded that respondent-plaintiffs have already sought remedy under Rule 47 of the Rules of 1986 by way of filing revision petition and, that, too, has been rejected by the State Government, therefore, the suit is not maintainable.
4. Before the trial Court, a reply to the application filed under Order VII Rule 11, C.P.C. was filed and contentions made by the petitioner-defendant were denied and, at last, the learned trial Court after hearing both the parties rejected the application filed by the petitioner-defendant vide order dated 6.5.2009, which is under challenge in this revision petition.
5. Learned counsel for the petitioner vehemently argued that in view of the fact that after filing suit, statutory remedy of revision under Rule 47 of the Rules of 1986 was availed and said revision petition was dismissed by the State Government therefore, the suit is not maintainable; but, the learned trial Court rejected the plea which is contrary to law. As per learned counsel for the petitioner-defendant, the respondent-plaintiffs are not entitled to prosecute and continue the remedy of suit and jurisdiction of the civil Court is now ousted but, ignoring these facts, the learned trial Court rejected the application filed by the petitioner under Order VII Rule 11, C.P.C., which is totally erroneous.
6. It is contended by learned counsel for the petitioner that the respondent-plaintiff availed the remedy provided under the special law and order of the Mining Engineer attained finality, therefore, the suit is not maintainable. In support of his contention, learned counsel for the petitioner invited my attention towards judgment rendered by co-ordinate Bench of this Court in the case of Bhola Ram vs. State of Rajasthan and Others, reported in 1995(1) WLC (Raj.) 352 and submitted that in the said reported judgment, judgment and decree passed by the civil Court was rendered nullity in view of the fact that before eight years of filing suit the remedy available under the statute was availed and lost. Therefore, in this case also, the learned trial Court has committed error of law while rejecting the application filed by the petitioner under Order VII Rule 11, C.P.C. Learned counsel for the petitioner, therefore, submitted that the order impugned deserves to be quashed and set aside.
7. Without prejudice to the above prayer, it is argued by learned counsel for the petitioner that if this Court comes to the conclusion that no case is made out for rejection under Order VII Rule 11, C.P.C., then, at least, the trial Court may be directed to decide the issue of maintainability of the suit first.
8. Per
