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2025 Supreme(Online)(Raj) 10463
HIGH COURT OF RAJASTHAN (JODHPUR BENCH)
MR. JUSTICE BIRENDRA KUMAR, J
PUSHPCHAND – Appellant
Versus
SMT. VIJAY LAXMI – Respondent
CRW / 5 / 2025
Mr. Nishit Shah, Mr. Sajjan Singh Rajpurohit, Mr. Prashant Tatia, Mr. Ankit Somani, Mr. Abhishek Sharma
The court clarified that the restoration of a suit pertains only to the interests of specific plaintiffs, ensuring substantial justice while addressing the implications of lis pendens on property rights.
Headnote:(A) Civil Procedure Code, 1908 - Order VII Rule 11 and Order I Rule 10 - Review of judgment and decree - The petitioner sought clarification on the restoration of a suit after the rejection of the plaint, emphasizing that it pertains only to the interests of specific plaintiffs and not to other purchasers who did not contest - The court clarified that the restored suit is confined to the interests of the plaintiffs in specific plots, ensuring substantial justice. (Paras 2, 7, 17)
(B) Review Jurisdiction - The court reiterated that it cannot re-examine the correctness of the judgment but can clarify for substantial justice. (Paras 10, 16)
(C) Lis Pendens - The court addressed the implications of lis pendens on the rights of purchasers and clarified that the petitioner retains interest despite selling the property during the appeal. (Paras 11, 12)
Facts of the case:
The petitioner sought review of a judgment restoring a suit for specific performance after the plaint was rejected. The suit involved multiple purchasers of property, with disputes over their interests and the validity of a compromise.
Findings of Court:
The court clarified that the restored suit is limited to the interests of the specific plaintiffs in designated plots, ensuring justice is served.
Issues: The main issues included the scope of the restoration of the suit and the rights of various purchasers involved.
Ratio Decidendi: The court held that the restoration of the suit is confined to the interests of the plaintiffs who contested, and the review was justified for substantial justice.
Result: Review petition allowed with clarification.
JUDGMENT
1. Heard the parties.
2. The sole petitioner-Pushpchand has sought for review of judgment and decree dated 29.01.2025 passed in S.B. Civil First Appeal No.176/2010. By the said judgment, Civil Original Suit No.282/2004 (58/1997) was restored to its original file, after setting aside order dated 10.02.2010, whereby the plaint of the aforesaid suit was rejected under Order VII Rule 11 C.P.C.
3. The petitioner has in fact not sought for a review of the judgment of this Court rather has sought for clarification based on material on the record on an important issue which was not pointed out at the time of final hearing of the appeal.
4. A brief background is that the petitioner had brought Civil Suit No.71/1991 for specific performance of contract against one Kalu Ram and Pabu Ram @ Pabuda, both full brothers (now dead). Both the full brothers filed their separate written statement in the suit making different averments including disclosure that Kalu Ram had sold his share in the suit property through a common registered sale deed dated 07.10.1992 to 63 persons. The 63 purchasers pendent lite including plaintiffs of the restored suit were not made party in the aforesaid Civil Suit No.71/1991. After filing of the written statement, Kalu Ram and Pabu Ram did not prosecute the suit. Accordingly, the trial Court decreed the suit in favour of the petitioner hereat by judgment and decree dated 18.04.1996.
5. Accordingly, an execution proceeding started, for registration of sale deed in pursuance of the aforesaid decree, on 28.05.1997. The Execution Court, on failure of the vendor to execute the sale deed, got the sale deed executed in favour of the petitioner through process of the Court. Thereafter, all the 63 lis pendens purchasers filed applications separatelly in group under Order I Rule 10 C.P.C. before the Execution Court for their impleadment. The Execution Court refused their impleadment on the ground that transfer in their flavour is hit by principle of lis pendens. Out of 63 aforesaid, only nine purchasers filed the restored suit bearing Civil Original Suit No.282/2004 (58/1997). In this suit also, some of the purchasers (31 in number) filed application for their impleadment, which was rejected on 04.05.2009. Thereafter, the unsuccessful party did not challenge order dated 04.05.2009. The 63 lis pendens purchasers had mutually partitioned the purchased property amongst themselves plot wise on 09.10.1992. Plot Nos.80 and 81 ad-measuring 533.33 square yards came to the share of respondent No.1-Smt. Vijay Laxmi and Plot No.91 ad- measuring 166.66 square yards came to the share of respondent No.2-Smt. Madhu Rathi. The nine plaintiffs of the restored suit moved an application on 01.06.2004 before the trial Court to withdraw the suit on the ground of compromise between the parties. The withdrawal was allowed, however, respondent Nos.1 and 2 namely Smt. Vijay Laxmi and Smt. Madhu Rathi respectively, later on asserted that they had not signed on the compromise petition nor had instructed their counsel to withdraw the suit. Consequently on the prayer of respondent Nos.1 and 2, the suit was restored but other seven purchaser/plaintiffs did not contest the matter thereafter. Even after rejection of the plaint under Order VII Rule 11 C.P.C. on the ground that remedy to the plaintiffs was before the Execution Court, respondent Nos.1 and 2 had not filed the appeal, wherein the judgment of restoration of the suit was passed after setting aside rejection of plaint. Though the remaining plaintiffs of the suit are arrayed as party respondent Nos.6 to 12 in this review petition. They need not be required to be noticed as they had not contested the suit, rather had withdrawn the suit itself. The provisions of Order XLI Rule 14(4) C.P.C. clearly stipulates that the party, who has not contested the suit are not necessary to be noticed in appeal. Identical provision is there under Order XXII Rule 4(4) C.P.C. in respect of deceased respondent who
