1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Bhanwar Singh Vs. Shaitan Singh & Ors. (S. B. Civil Review (Writ) Petition No.51/2010) In (S.B. Civil Writ Petition No.11352/2010) S.B. Civil Review (Writ) Petition under Article 226 of the Constitution of India read with Order 47 Rule 1 of CPC, 1908. Date of Judgment: October 18, 2010 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.Shishu Pal Singh, for the petitioner. BY THE COURT: This review petition has been filed against the judgment dated 25th August, 2010, whereby this Court has upheld the order dated 23.07.2010 passed by the Civil Judge (Junior Division) and Judicial Magistrate, First Class, Lalsot, District Dausa, whereby the learned Civil Judge had dismissed the petitioner's application under Order 7 Rule 11 CPC. The Brief facts of the case are that Shaitan Singh, the respondent No.1, had filed a suit for permanent injunction against Ganpat Singh, defendant-proforma-respondent No.2, and against Bhanwar Singh, the present petitioner. In 2 his plaint, he had claimed that he was the adopted son of Late Padam Singh. He had further claimed that the Commissioner under the Jagir Resumption Act had concluded that he was adopted by Late Padam Singh and had earmarked his property. Moreover, the Commissioner had earmarked a small portion of the 'Hawali' as belonging to Ganpat Singh. Shaitan Singh in his plaint had further contended that Ganpat Singh is trying to encroach upon the part of the property, which according to the Commissioner, belongs to the plaintiff. He had further alleged that the present petitioner incites Ganpat Singh to encroach upon the property which belongs to the plaintiff. Therefore, he had sought permanent injunction against Ganpat Singh that he should not encroach upon the property which belongs to the plaintiff. Most importantly he had sought permanent injunction against the present petitioner that he should be restrained from inciting Ganpat Singh to encroach upon the property of the plaintiff. The petitioner moved an application under Order 7 Rule 11 CPC wherein he had claimed that the issue whether Shaitan Singh was actually adopted by Late Padam Singh was already decided by another Civil Court. While this case was argued on 25th August, 2010, the learned counsel had raised the following plea as under : 3 Mr. Shishu Pal Singh, the learned counsel for the petitioner, has contended that the entire plaint is based on false and fabricated facts. According to the learned counsel, the respondent is not the adopted son of Late Padam Singh. The issue whether he is the adopted son of Late Padam Singh or not already stands decided by judgment dated 16.05.1992, passed by the learned Munsif and Judicial Magistrate, First Class, Lalsot, District Dausa, wherein the learned Magistrate had already held that the respondent is not the adopted son of Late Padam Singh. According to the learned counsel, this judicial finding could not be ignored. Yet hiding this judgment which was against him, the respondent had filed the civil suit for permanent injunction against the petitioner. According to the learned counsel, the withholding of the vital facts tantamounts to a fraud being played upon the Court. However, the learned Judge has overlooked these aspects of the case and has erred in rejecting the application under Order 7 Rule 11 CPC. After hearing the learned counsel on his contentions, vide order dated 25th August, 2010, this Court has dismissed the writ petition. Hence, this review petition before this Court. Mr. Shishu Pal Singh, the learned counsel for the petitioner has raised two contentions before this Court : firstly, this Court has overlooked the existence of Order 6 Rule 10 of CPC. Therefore, there is an error apparent on the face of the record. Secondly, this Court has also overlooked the bar contained in Section 12 CPC. Heard the learned counsel for the petitioner. 4 It is pertinent to point out that neither of these two pleas were ever raised by the learned counsel on 25th August, 2010. Thus, new pleas are now being raised before this Court. It is, indeed, a settled principle of law that in case a plea has not been raised, the Court is not expected to deal with such a plea. Therefore, it is a misstatement of fact that this Court has ignored the existence of Order 6 Rule 10 of CPC and Section 12 of CPC, when in fact the existence of these two provisions was not even brought to the notice of this Court and the contentions were never raised before this Court. Even otherwise, Order 6 Rule 10 merely lays down a Rule of pleading. It merely states that whenever an allegation of malice, fraudulent intention, knowledge or other condition of the mind of any person, is to be made, it is sufficient that an allegation should be made and and it is not necessary that the circumstances from which such an allegation is to be inferred needs to be stated. Therefore, this rule of pleading does not come to the rescue of the petitioner. Secondly, Section 12 of CPC merely states that “where a plaintiff is precluded by Rules from instituting a further suit in respect of any 5 particular cause of action, he should not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies'. However, in the present case, the cause of action is mainly against Ganpat Singh; the present petitioner happens to be only a peripheral respondent as the relief being claimed against him is limited to the extent that he should be prevented from inciting Ganpat Singh from encroaching upon the land and property which belongs to Shaitan Singh, the plaintiff. Merely because the suit is partly based on the alleged fact that the plaintiff claims himself to be the adopted son of Late Padam Singh, a issue already decided by a Civil Court, it does not mean that the suit for permanent injunction should be rejected in toto under Order 7 Rule 11 of CPC. Section 12 of CPC does not come to the rescue of the petitioner. Therefore, this Court is of the opinion that there is no force in this review petition. Hence, it is hereby, dismissed. (R.S. CHAUHAN) J. Manoj solanki