1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Revision Petition No.178/2009. (Abdul Fazal Vs. M/s S.J. Marble Mines & Others) DATE OF ORDER : September 09, 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Reportable Mr. Rajesh Joshi for the petitioner. Mr. J.R. Patel for the respondent(s). BY THE COURT : In this revision petition, the petitioner is challenging order dated 06.05.2009 passed by the Addl. District Judge, Parbatsar, whereby, the said Court dismissed the application filed by the petitioner- defendant under Order VII Rule 11, read with Section 151, C.P.C. in Civil Original Suit No.11/2009 pending before the Addl. District Judge, Parbatsar. 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 13.02.2009 passed by the Mining Engineer, Makrana in exercise of powers conferred 2 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 02.03.2009. 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. 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 3 both the parties rejected the application filed by the petitioner-defendant vide order dated 06.05.2009, which is under challenge in this revision petition. 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. 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 & 4 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. 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. Per contra, learned counsel appearing on behalf of respondent No.1 as cavetor, vehemently argued that no error has been committed by the trial Court while rejecting the application filed under Order VII Rule 11, C.P.C. It is contended by learned counsel for respondent No.1 that at the time of deciding the application filed under Order VII Rule 11, C.P.C. trial 5 Court is only required to see the language of Order VII Rule 11, C.P.C. and, upon perusal of the language of Order VII Rule 11, C.P.C. it is abundantly clear that the application has been filed under Order VII Rule 11 (d) and under Order VII Rule 11 (d), C.P.C. the plaint is required to be rejected where the suit appears from the statement in the plaint to be barred by any law; meaning thereby, the first requirement for rejecting the suit under Order VII Rule 11 is that upon perusal of the plaint it must appear from the statement in the plaint that suit is barred by any law. In this case, upon perusal of the plaint it is revealed that there is no whisper that suit is barred by any law. In this view of the matter, the learned trial Court has passed impugned order which does not require any interference. Learned counsel for the respondent vehemently argued that even preliminary issue with regard to jurisdiction of the civil Court cannot be decided in view of the fact that as per Order XIV Rule 2, C.P.C. preliminary issue can be decided where the issue relates to jurisdiction of the Court or it appears to the said Court that suit is barred by any law for the time being in force. Here, in this case, there is no averment in the plaint with regard to lack of jurisdiction of the civil Court 6 nor there is any pleading with regard to the fact that there is any bar provided under any law for the time being in force. Therefore, no order can be passed for deciding the question of maintainability of the suit. Learned counsel for the respondent has invited my attention towards the following judgments : (1) 2009 CDR 88 (SC) Kamala & Others Vs. K.T. Eshwara Sa & Others (2) 2009 (1) DNJ (Raj.) 231 Tej Singh Vs. Sardar Uttam Singh & Others (3) 2006 (2) WLC (SC) Civil 253 Ramesh B. Desai & Ors Vs. Bipin Vadilal Mehta & Ors (4) AIR 1998 Allahbad 260 Purnmasi Yadav Vs. Narbedeshwar Tripathi & Others. Learned counsel for the respondent urged that this revision petition may be dismissed because the learned trial Court has rightly rejected the application under Order VII Rule 11 (d), C.P.C. I have considered the rival submissions made by both the parties. Admittedly, in this case, initially suit was filed with certain prayer including prayer for quashing order dated 13.02.2009 passed by the Mining Engineer, Makrana and, during the pendency of the suit, admittedly, revision was filed under Rule 47 of the Rules of 1986 7 which was dismissed; and, thereafter, an application under Order VII Rule 11, C.P.C. was filed by the petitioner. Vide the impugned order, the learned trial Court rejected the said application. In my opinion, the scope of this revision is to see that order dated 06.05.2009 which is passed by the trial Court while taking into consideration the provisions of Order VII Rule 11 (d), C.P.C. Order VII Rule 11, C.P.C. reads as under : “11. Rejection of plaint.-The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d)Where the suit appears from the statement in the plaint to be barred by any law : Provided that the time fixed by the Court for the 8 correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.” Upon perusal of Order VII Rule 11 (d), C.P.C. it is revealed that a plaint can be rejected by the trial Court where the suit appears from the statement in the plaint to be barred by any law. Here, in this case, there is no contention in whole of the revision petition as well as during the course of arguments that there was any assertion in the plaint that suit is barred by any law. More so, the petitioner-defendant is raising voice with regard to maintainability of the suit; but, in my opinion, the language of Order VII Rule 11(d), C.P.C. itself speaks that suit can be rejected only on the ground that upon perusal of the plaint if it appears that the suit is barred by any law. The Hon'ble apex Court specifically held in the judgment reported in 2009 CDR 88 (SC), Kamala & Others Vs. K.T. Eshwara Sa & Others, that Order VII Rule 11(d) has limited application and it must 9 be shown by the applicant that the plaint itself discloses that suit is barred by any law and the trial Court is under obligation to satisfy itself that such averments are made in the plaint. Further, it is held that for invoking provisions of Order VII Rule 11 (d), C.P.C. no amount of evidence can be looked into. Therefore, the issue on merit of the matter which may arise between the parties should not be in the realm of the Court. Similarly, co-ordinate Bench of this Court, in the case of 2009 (1) DNJ (Raj.) 231, Tej Singh Vs. Sardar Uttam Singh & Others, has held that whilde deciding an application under Order VII Rule 11, C.P.C., the Court is required to see only the averments made in the plaint and is not required to see evidence or any document which is filed to raise objection. In the similar terms is the pronouncement of the Hon'ble apex Court in the judgment reported in 2006 (2) WLC (SC) Civil 253, Ramesh B. Desai & Ors Vs. Bipin Vadilal Mehta & Ors, in which, it is held that objection under Order VII Rule 11, C.P.C. has to be decided on the basis of material contained in the plaint without considering any other material. I have given thoughtful consideration to the matter in hand while keeping in mind the above 10 adjudication made by the Hon'ble apex Court in various pronouncements. Upon perusal of the judgments referred to above, it is crystal clear that at the time of deciding application filed under Order VII Rule 11(d), C.P.C. the Court is required to examine the pleadings of the plaint and, if in the 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, of course, the trial Court can exercise its powers to reject the plaint under Order VII Rule 11(d), C.P.C. Obviously, the legislature, after thorough examination, has made such provision so as to restrict 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. Therefore, Hon'ble apex Court has held in the above referred cases that at the time of deciding application under Order VII Rule 11(d), C.P.C. only statement of plaint is required to be seen and nothing else. In this view of the matter, in my opinion, no error has been committed by the learned trial Court while rejecting the application filed under Order VII Rule 11(d), C.P.C. because it is nowhere pleaded by the petitioner-defendant that suit is barred by any law. 11 The alternate prayer made by learned counsel for the petitioner during the course of argument with regard to framing and deciding the preliminary issue, in my opinion, in view of the language of Order XIV Rule 2, C.P.C., no such direction can be issued to the trial Court for framing and deciding preliminary issue with regard to maintainability of the suit on the ground that an objection has been raised by the petitioner with regard to maintainability of the suit. Order XIV Rule 2, C.P.C. reads as under : “2.Court to pronounce judgment on all issues.-(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2)Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relate to - (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the 12 settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.” Upon perusal of the above provision, it is abundantly clear from the facts of this case that neither the petitioner is raising ground of jurisdiction nor it is pleaded that suit is barred by any law. Therefore, alternate prayer made by the petitioner is also rejected. As a result of the foregoing discussion, this revision petition is hereby dismissed. (Gopal Krishan Vyas) J. Ojha, a.