Karolan, Tehsil Sanganer, District Jaipur Rajasthan v. Vikas Bhawan Nirman Sahakari Samiti Limited Jaipur

Judgment

1. Vikas Bhawan Nirman Sahakari Samiti Limited Jaipur (registration No. 2071/L), Through Secretary, Ghanshyam Khandelwal, Plot No. 619 Mahavir Nagar, Tonk Road, Jaipur (Raj.)

2. Anil Kumar, S/o Shri K.v. Singh, R/o B-3, Shree Ji Nagar Extension, Durgapura , Jaipur (Rajasthan).

Nand Lal Sharma, S/o Late Shri Lalita Prasad Sharma, R/o Saarthak Manav Kushthashram, Galata Road, Jaipur (Rajasthan.)

4. Smt. Balwant Kaur, D/o Shri Jogendra Singh, W/o Shri S. Gurpal Singh R/o B-42, Sehti Colony, Jaipur (Rajasthan).

5. Dr. Sanjay Rao, S/o Shri Priya Vart, R/o D-74 Anand Vihar, Railway Colony Jagatpura, Jaipur (Raj.)

6. Moti Lal Gupta, S/o Shri Ram Lal Gupta, R/o Plot No. 44, Scheme No. 3, Raj Hans Colony, Brahmpuri, Jaipur (Raj.)

7. Smt. Surendra Rani, W/o Shri Laj Pat Rai, D/o Shri K.r. Sahgal, R/o K-441, Tax Colony, Durgapura, Jaipur (Rajasthan)

8. Smt. Archana Gupta W/o Shri Sanjay Raj, D/o Shri Harendra Nath, R/o D-74, Anand Vihar Colony, Railway Colony, Jagat Pura, Jaipur (Rajasthan)

9. Sat Pal Kapoor, S/o Late Shri Prem Nath Kapoor, R/o 813, Adarsh Nagar, Jaipur (Raj.) [2025:RJ-JP:19346] (2 of 13) [CR-42/2012]

10. Smt. Asha Jaiman, W/o Shri Jagdish Sharma, R/o House No. 95, Govind Nagar, Behind Dcm, Ajmer Road, Jaipur (Raj.)

11. Smt. Susheel Sogarwal, D/o Shri Ram Swaroop, R/o House No. A-332, Mahesh Nagar, Jaipur (Rajasthan.)

12. Smt. Krishana Jain, D/o Shri Narain Lal Garg, R/o 10/59, Swarn Path, Man Sarovar, Jaipur (Raj.)

13. Smt . Madhu Mittal W/o Shri Nemi Chand Mittal, D/o Shri Laxmi Prasad Goyal, R/o House No. Ii/241, A.g. Colony, Bajaj Nagar, Jaipur (Raj.)

14. Aruna Nagauri D/o Shri Gautam Chand Mehta, R/o House No. 3/310, A.g. Colony Bajaj Nagar, Jaipur (Raj.)

15. Smt. Rukmani Devi D/o Late Shri Bheru Lal Chaudhary, R/o House No. D-8 Anand Vihar Colony, Jagat Pura, Jaipur (Raj.)

16. Smt. Jug Devi, W/o Shri Dinesh Chand Sharma, R/o House No. 18, Lav Kush Nagar-I, Tonk Phatak, Jaipur (Raj.)

17. Laxman Prasad Singhal, S/o Shri Bhagwat Prasad, R/o House No. 111/222, Malviya Nagar, Jaipur (Raj.)

18. Shailesh Mittal S/o Shri Subhash Mittal, R/o Through Harish Chand Subhash Chand Mittal Sarraf, Bhusawar, District Bharatpur (Raj.)

19. Smt. Susheela Garg, D/o Shri Kunji Lal Garg, R/o Ganesh Khadi Seva Samiti, Khadi Bhawan, Bayana, District Bharatpur (Raj.)

20. Vijay Kumar Mittal, S/o Shri Kirodi Lal Mittal, R/o 2/670, Malviya Nagar, Jaipur (Raj.)

21. Mukesh Sharma S/o Shri Kiran Sharma, R/o House No. P- 34, Shri Ganga Nagar Rajasthan.

22. Smt. Asha Devi Sharma W/o Dr. Mukesh Sharma, R/o P- 34, Shri Ganga Nagar (Raj)

23. Raghu Nath Prasad, S/o Shri Ram Dev, R/o Village Khora- Meena, Tehsil Amer, District Jaipur (Raj.) ----Respondents For Petitioner(s) : Mr. Kapil Bardhar Mr. Giriraj Bardhar [2025:RJ-JP:19346] (3 of 13) [CR-42/2012] For Respondent(s) : Mr. Brij Mohan Sharma Mr. Rajesh Kumar Mutha HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order REPORTABLE 28/04/2025

1. Instant revision petition is preferred by petitioners- defendants aggrieved from order dated 23.03.2012 in civil suit No. 39/1999 (17/1999) passed by learned Additional District Judge No.2, Jaipur District, whereby an application under Order VII Rule 11 CPC preferred by petitioners-defendants was dismissed.

2. Learned counsel for petitioners while placing reliance upon judgment in case of Rajasthan Housing Board Vs. New Pink City Nirman Sahkari Samiti Limited (2015) 7 SCC 601 submitted that as per Section 42 of Rajasthan Tenancy Act, there is a general restriction on sale gift and bequest of any agricultural land-holding by a member of Scheduled Caste or Scheduled Tribe in favor of any other person who is not a member of Scheduled Caste or Scheduled Tribe. He further submitted that the society is also a juristic person, which is also bound by restriction as imposed by Section 42 of Rajasthan Tenancy Act. He also submitted that in the instant case, the plaintiff-society along with other persons have filed a civil suit against defendant Nos. 1 to 6, who are member of Scheduled Tribe community and submits that the suit is filed for cancellation of sale deed executed by them in favor of another member of S.T. and specific [2025:RJ-JP:19346] (4 of 13) [CR-42/2012] performance of contract and also for permanent injunction. He also submitted that this suit is not maintainable in view of bar contained under Section 42 of Rajasthan Tenancy Act.

3. Aforesaid contentions were opposed by learned counsel for respondent on the ground that the objection raised by petitioners-defendants requires adjudication only after evidence as they are mixed question of facts and law, and the suit cannot be dismissed under Order VII Rule 11 CPC. He further submitted that the Trial Court after considering the application under Order VII Rule 11 CPC has rightly dismissed the application, wherein the Trial Court has relied upon judgments of this Hon’ble Court while dismissing the objection of defendants.

4. Heard learned counsels for the parties and perused the record.

5. The facts giving rise to institution of present revision petition are that plaintiff (respondent No.1) Vikas Bhawan Nirman Sahakari Samiti along with other plaintiffs have filed a civil suit for cancellation of sale deed, specific performance of agreement and injunction against the defendant(s) in the Court of learned District Judge, Jaipur District, Jaipur which was transferred to the Court of learned Additional District Judge No.2, Jaipur District, Jaipur. During pendency of this civil suit, an application under Order VII Rule 11 CPC was filed by petitioners-defendants and this application was dismissed by the Trial Court on 23.02.2012, and aggrieved from the dismissal of application, the instant revision petition is preferred by defendants. [2025:RJ-JP:19346] (5 of 13) [CR-42/2012]

5. Order VII Rule 11 CPC deals with the grounds for rejection of plaint aiming to prevent frivolous or defective suits. The provision enables the Court to reject a plaint, if certain conditions are satisfied. The provision of Order VII Rule 11 CPC is reproduced as under:- 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 returned 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 : (d) where the suit appears from the statement in the plaint to be barred by any law : (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provision of rule 9: “Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper 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 form correcting the valuation or supplying the requisite stamp-paper, 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.” [2025:RJ-JP:19346] (6 of 13) [CR-42/2012]

6. In case of T. Arivandandam vs. T.V. Satyapal, (1977) 4 SCC (1) 467, Hon’ble Supreme Court while examining the aforesaid provision has held that the trial court must remember that if on a meaningful and not a formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party under Order X of the Code.

7. The object of the said provision is further considered by Hon’ble Supreme Court in Sopan Sukhdeo Sable vs. Assistant Charity Commissioner, (2004) 3 SCC 137, and in Popat and Kotecha Property vs. State Bank of India Staff Association, (2005) 7 SCC 510, and held that no court shall permit the plaintiff to unnecessarily protract the proceedings in a suit in case the suit does not disclose a cause of action or barred by any law or law of limitation.

8. In case of Saleem Bhai vs. State of Maharashtra, (2003) 1 SCC 557 that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power at any stage of the suit i.e. before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 of [2025:RJ-JP:19346] (7 of 13) [CR-42/2012] the Code, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.

9. Hon’ble Supreme Court in case of Dahibhen Vs. Arvindbhai Kalyanji Bhanusali through LRs and Ors. 2020 SCC Online (SC) 562 while dealing with an appeal against an order allowing rejection of a suit at the threshold, had occasion to consider various precedents to discuss the intent under Order VII Rule 11 of CPC. Hon’ble Supreme Court observed that if no cause of action is disclosed in the plaint, or if the suit is barred by law, court would not permit protraction of the proceedings and it would be necessary to put an end to the shame litigation so that further judicial time is not wasted.

10. After placing reliance upon Azhar Hussain Vs. Rajiv Gandhi 1986 SCC (SUPP) 315, Hon’ble Supreme Court opined that the entire purpose of conferment of such power is to ensure that a litigation, which is meaningless and bound to prove abortive should not be permitted to occupy the time and space of the Courts. The power on the Court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 CPC are required to be strictly adhered to.

11. Hon’ble Supreme Court while dealing with such an application seeking rejection of a plaint clarified that while determining any application filed under Order VII Rule 11 CPC, the court should restrict itself to the plaint and should not go into the detailed facts as provided under the written statement [2025:RJ-JP:19346] (8 of 13) [CR-42/2012] or even in the application filed for rejection of plaint. While scrutinizing the averments in the plaint, the Court can read documents annexed and relied upon in the plaint.

12. Order VII Rule 11(d) of CPC provides that a plaint should be rejected if the suit is barred by any law. Hon’ble Supreme Court in case of Ramisetty Venkatanna Vs. Nasyam Jamal Saheb 2023 INSC 458 has observed that plaint should be rejected under Order VII Rule 11 (a)(d) of CPC if it is vexatious, illusory cause of action and barred by law.

13. Section 9 of CPC provides that the Court shall have jurisdiction to try all suits of a civil nature except suit of which cognizance is expressly or impliedly barred. It is well-settled that consent of parties neither confer nor take away jurisdiction of any Court which means if a Civil Court has jurisdiction neither acquiescence nor waiver or estoppel can create the same.

14. In case of A.R. Antulay vs R.S. Nayak & Anr. AIR 1988 SC 1531, Hon’ble Supreme Court has held that the power of Court or jurisdiction is legislative in character. In case of Chief Engineer, Hydel Project & Ors vs Ravinder Nath & Ors. (2008) 2 SCC 350, Hon’ble Supreme Court has held that a decree passed without jurisdiction is nullity and its invalidity can be set up even at the stage of execution. It is essentially based on a principle “coram non judice”. In case of Kiran Singh And Others vs Chaman Paswan And Others AIR 1954 SC 340 has held that a defect of jurisdiction goes to the root of the matter and such a basic and fundamental [2025:RJ-JP:19346] (9 of 13) [CR-42/2012] defect cannot be cured by consent of the parties. Conversely, if a Court to decide a dispute, the same cannot be taken away or ousted by consent of the parties. In case of Abdulla Bin Ali Vs. Gullapa & Ors. (1985) 2 SCC 54, Hon’ble Supreme Court held that the jurisdiction does not depend upon the defence taken by the defendants in the written statement. A similar view was expressed in case of Bank of Baroda vs Moti Bhai And Ors. (1985) 1 SCC 475 and held that on the question of jurisdiction, one must always have regard to the substance of the matter and not to the form of the suit.

15. In view of legal position about jurisdiction of civil Court, it is apparently clear that in case suit is expressly or impliedly barred then the Civil Court has no jurisdiction to entertain and continue the civil suit. In case a Civil Court has no jurisdiction to entertain or continue a civil suit then a plaint is required to be rejected under Order VII of Rule 11(d) of CPC.

16. Admittedly, the petitioners are member of Scheduled Tribe and the plaintiff has filed a suit for agricultural land and challenged the sale deed dated 17.03.1999 executed by defendant No.2 in favor of defendant No.1. The plaintiff has sought specific performance of agreement dated

15.07.1981/19.01.1991. The agricultural land belongs to a person who is a member of Scheduled Tribe. The defendants have filed an application under Order VII Rule 11 CPC but same was dismissed by learned Trial Court.

17. Section 42 of Rajasthan Tenancy Act is reproduced as under: [2025:RJ-JP:19346] (10 of 13) [CR-42/2012] “42. General restrictions on sale, gift and bequest— The sale, gift or bequest by a Khatedar tenants of his interest in the whole or part of his holding shall be void, if — (a) Omitted. (b) such sale, gift or bequest is by a number of Scheduled Caste in favour of a person who is not a member of the Scheduled Caste, or by a member of a Scheduled Tribe in favour of a person who in not a member of the Scheduled Tribe. [(bb) such sale, gift or bequest, notwithstanding anything contained in clause (b), is by a member of Saharia Scheduled Tribe in favour of a person who is not a member of the said Saharia tribe.] (c) Omitted. 42A. Omitted. 42B. Declaration as valid of sale, gift and bequest— Where any sale, gift or holding before the commencement of the Rajasthan Tenancy (Second Amendment) Act, 1992 Act No. 22 of 1992 was void on account of contravention of any of the provisions of clause (a) of section 42, as it stood before the said amendment Act of 1992, such sale, gift or bequest may be declared to be valid by the Collector or any officer or authority empowered by the State Government in this behalf on an application made to him or it within such time and in such manner and on payment of such fee and penalty as may be prescribed: Provided that- (a) - such sale, sift or bequest was otherwise legally valid and in conformity with the provisions of the laws for the time being in force except those contained in clause (a) of section 42 as aforesaid: (b) the parties to the sale, or bequest comply with all the terms and conditions as may be prescribed by the rules or by any special or general order: (c) the payment is -made of such premium or penalty as may be prescribed: [2025:RJ-JP:19346] (11 of 13) [CR-42/2012] (d) the applicant undertakes to pay urban assessment levied at such rate and in accordance with such manner as may be prescribed. The provision of Section 42 of Tenancy Act declare that transaction entered into by a Scheduled Tribe with any other person other than a person of Scheduled Tribe to be void.

18. The plaintiff No.1 (original plaintiff) is a society registered under the Society Registration Act and it is pleaded on behalf of respondents plaintiff that society is a juristic person and sale cannot be said to be in contravention of Section 42 of Rajasthan Tenancy Act. This issue was considered by Hon’ble Supreme Court in case of Housing Board Vs. New Pink City Nirman Sahkari Samiti Limited (supra) wherein Hon’ble Supreme Court has held that the sale is permitted by a person of a Scheduled Tribe to any other person of Scheduled Tribe and the society cannot be said to be person of scheduled Tribe. The society cannot be said to be a person included in the notification issued under Article 341 of the Constitution of India. Article 341 of Constitution envisages notification to be issued for inclusion in Scheduled Tribe in relation to a State or Union Territory.

19. While referring the judgment in case of State of Rajasthan & Ors vs Aanjaney Organic Herbal Pvt. Ltd (2012) 10 SCC 283, Hon’ble Supreme Court has considered the question of the applicability of the provision of Section 42 of Rajasthan Tenancy Act in relation to a corporate entity and held that bar is attracted to a juristic person. Para No. 12 and 13 of judgment are reproduced as under: [2025:RJ-JP:19346] (12 of 13) [CR-42/2012] “12. The expressions “Scheduled Castes” and “Scheduled Tribes”, we find in Section 42(b) of the Act have to be read along with the constitutional provisions and, if so read, the expression “who is not a member of the Scheduled Caste or Scheduled Tribe” would mean a person other than those who have been included in the public notification as per Articles 341 and 342of the Constitution. The expression “person” used in Section 42(b) of the Act therefore can only be a natural person and not a juristic person, otherwise, the entire purpose of that section will be defeated. If the contention of the Company is accepted, it can purchase land from Scheduled Caste/Scheduled Tribe and then sell it to a non-Scheduled Caste and Scheduled Tribe, a situation the legislature wanted to avoid. A thing which cannot be done directly cannot be done indirectly overreaching the statutory restriction.

13. We are, therefore, of the view that the reasoning of the High Court that the respondent being a juristic person, the sale effected by a member of Scheduled Caste to a juristic person, which does not have a caste, is not hit by Section 42 of the Act, is untenable and gives a wrong interpretation to the abovementioned provision.” In view of the aforesaid dictum it is crystal clear that the sale to the Society which is a juristic person is ab initio void and not recognisable in the eye of law.

20. After considering the legal position as settled by Hon’ble Supreme Court in identical case, it is apparent that present civil suit is not maintainable in view of bar contained under Section 42 of Rajasthan Tenancy Act and civil suit is not maintainable against a person belongs to SC/ST category, therefore, the Trial Court has committed serious error while dismissing the application under Order VII Rule 11 CPC. The civil suit preferred by respondent-plaintiffs is not maintainable and same is barred by law.

21. When a suit is barred by law then there is no need and reimbursement for the Trial Court to decide the objection after framing the issue and recording evidence. The Trial Court has committed serious error observing that the issue is mixed question of facts and law. In view of discussions made hereinabove, the instant revision petition is liable to be [2025:RJ-JP:19346] (13 of 13) [CR-42/2012] allowed. Thus, the revision petition is hereby allowed and impugned order dated 23.03.2012 is hereby set aside.

22. As a result, the application under Order VII rule 11 CPC is allowed and civil suit preferred by respondent-plaintiff is rejected.

23. Pending application(s), if any, also stands disposed of.

24. No order as to costs. MONU /99 (ASHOK KUMAR JAIN),J