HIGH COURT OF JAMMU, KASHMIR AND LADAKH

AT JAMMU

CR No. 7/2022(O&M)

Reserved on : 08.11.2023

Pronounced on: 24.11.2023

1.

Sh. Pradeep Rajwal, Age 66

years S/o. Late Sh. Basant Ram

Rajwal, R/o. F-68, Kanji House,

Gummat, Jammu.

2.

Smt. Sulochana Mohan, Age 85

years, W/o. Lt. Sh. Manmohan

Lal R/o. H. No. 155, New Plot,

Jammu

…..Appellant(s)/Petitioner(s)

Through: Mr. Vivek Sharma, Adv.

vs

1.

Sh. Yog Raj

S/o. Bhunda Ram, R/o. H. No. 1,

Sector-1, Roop Nagar, Jammu.

.…. Respondent(s)

Through: Mr. P. S. Pawar, Adv.

Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

JUDGEMENT

1.

The instant revision petition has been filed by the petitioners against order

dated 20.11.2021 passed by the Court of learned 2^nd Civil Subordinate Judge

(Passenger Tax, Shops and Estt. Act), Jammu (hereinafter to be referred as the

‘trial court’) by virtue of which the application filed by the petitioners under

Order 7 Rule 11 of the Code of Civil Procedure (for short the Code) for

rejection of plaint, has been rejected.

2.

The factual matrix of the controversy in hand is that the respondent along with

others had earlier filed a suit for declaration, declaring the judgment and

decree dated 20.09.2016 passed by the court of learned City Judge Jammu in

case, titled, ‘Pradeep Rajwal and anr. vs Nemo’ as illegal, nullity and

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inoperative and not binding upon anyone, which was assigned to the trial

court by the Principal District Judge, Jammu. It is stated that at the time of

filing of the suit, the respondent was having the knowledge of revocation of

Trust Deed, which was registered on 11.02.2016 by the learned Sub Registrar,

3^rd Additional Munsiff, Jammu but the respondent did not challenge the

revocation of the Trust Deed in the earlier suit filed by them while throwing a

challenge to the judgment and decree dated 20.09.2016 and rather filed

another suit thereby challenging the revocation deed dated 11.02.2016 in

respect of revocation of the trust. The petitioners filed an application under

Order 7 Rule 11 of the Code on the ground that the suit was barred under

Order 2 Rule 2 of the Code as the respondent did not challenge the revocation

of Trust Deed dated 11.02.2016 in the earlier suit preferred by him along with

others, whereby he had challenged the judgment and decree dated 20.09.2016

passed by the Court of learned City Judge, Jammu. The respondent filed the

response and after considering the rival contentions of the parties, the learned

trial court dismissed the application preferred by the petitioners.

3.

The respondent has filed the response to the revision petition stating therein

that the judgment and decree dated 20.09.2016 passed in suit, titled, ‘Pradeep

Rajwal and anr. vs Nemo’ was challenged by the respondent when it came to

the knowledge of the respondent. It is further stated that the learned trial court

has rightly dismissed the application of the petitioners under Order 7 Rule 11

of the Code as only the averments made in the plaint are required to be looked

into. Besides, the factual aspects of the case have also been narrated, which

may not be relevant for the settlement of the present controversy.

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4.

Learned counsel for the petitioners has vehemently argued that the respondent

ought to have challenged the revocation of Trust Deed in the suit filed earlier

by the respondent for challenging the judgment/decree dated 20.09.2016

passed by th