Both R/o Navjeevan Upvan, Moti Doongari Road, Jaipur v. Upvan, Moti Doongari Road, Jaipur

Judgment

1. Smt. Shalini @ Shaila W/o Harish Sharma D/o Late Shri Balgovind Sharma, Aged About 48 Years, R/o Navjeevan Upvan, Moti Doongari Road, Jaipur

2. Smt. Sulochna Devi W/o Late Balgovind Sharma, (Deceased During Pendency Of The Suit)

3. Manish Sharma S/o Late Balgovind Sharma Respondent Nos.2 and 3 are resident of Navjeevan Upvan, Moti Doongari Road, Jaipur

4. Smt. Shobha Sharma (Ladaniya) W/o Dr. Ram Prasad D/o Late Balgovind Sharma, Resident Of 1/1, Ambika Vihar, Flat No.b, Harjut Raee, Chanariya Road, Howrah West Bengal.

5. Navneet Sharma S/o Late Balgovind Sharma, Resident Flat No. 402, Ganpati Darshan 10, Chetak Marg, Trimurti Circle, Jaipur

6. Smt. Usha Sharma W/o Ramavatar Sharma, D/o Late Ramdayalu Sharma, R/o Brij Mandal Colony, G-3, Balaji Apartment, Jhotwara, Jaipur

7. Smt. Usha Sharma W/o Prahlad Sharam D/o Late Ramdayalu Sharma, R/o Girraj Maruti Workshop, Mathura Refinery Ke Paas, Mathura, Uttar Pradesh

8. Smt. Rama Sharma W/o Late Dr. Sitaram Sharma D/o Late Ramdayalu Sharma, R/o Plot No. 41, Vaishno Devi Nagar, Vaishno Devi Mandir Ke Pass, Jhotwara, Jaipur

9. Smt. Shachi Sharma W/o Rajesh Sharma D/o Late Ramdayalu Sharma, R/o F-52, Kamla Nagar, Purani Delhi

10. Smt. Pragya Sharma W/o Bhalendu Sharma D/o Late Ramdayalu Sharma, R/o Vaidhji Ka Nohara, Rajgarh Road, Pilani, Jhunjhunu, Raj.

11. Smt. Jyotirmayi Devi W/o Umashankar Sharma D/o Late [2025:RJ-JP:23716] (2 of 28) [CR-155/2024] Nand Kishore Ji, R/o C Z-9, Metrolitan Bypass, Co- Operative Housing Society, Canle South Road, Chingari Hatta, Kolkata, (Deceased During Pendency Of The Suit) Through Legal Heirs. 11/1. Smt. Suchita Sharma W/o Shri Praveen Sharma, R/o A 1- 6, LIC Colony, Vidhyadhar Nagar Police Station Ke Saamne, Jaipur 11/2. Raghvendra Joshi S/o Shri Umashankar Joshi, R/o C Z-9, Metropolitan Co-Operative Housing Society, Kolkata 11/3. Smt. Shaifali Badadra W/o Brij Mandal Badadra, R/o Flat No. C-406 A C R U X Gokul Plaza Bhoomi Khaal Puri Katak Road, Bhuvneshwari, Orissa 11/4. Rohit Sharma S/o Umashankar Joshi, R/o C Z-9, Metropolitan Co-Operative Housing Society, Kolkata

12. Surendra Kumar Bardiya S/o Late Sagarmal Bardiya, R/o 20, Royal Enshine, Statue Circle, Jaipur

13. Smt. Neelam Jain W/o Rishabh Jain D/o Surendra Kumar Bardiya, R/o 20, Bardiya Colony, Museum Road, Jaipur, Presently Residing At 7A, Panchvati Sukhadiya Circle Ke Paas, Udaipur

14. Jaipur Nagar Nigam, Through Commissioner Nagar Nigam Bhawan, Sms Stadium Ke Paas, Tonk Road, Jaipur

15. Jaipur Development Authority, Through Commissioner, Jda Bhawan, Indira Gandhi, Circle, J.l.n. Marg, Jaipur ----Respondents Connected With S.B. Civil Revision Petition No. 39/2020

Sriniwas Sharma S/o Late Shri Ramdayalu Sharma, Aged About 68 Years, R/o Navjeevan Upvan, Moti Dungri Road, Jaipur

2. Ambrish Sharma S/o Late Shri Ramdayalu Sharma, Aged About 42 Years, both R/o Navjeevan Upvan, Moti Dungri Road, Jaipur

3. Smt. Usha Sharma W/o Shri Ramavatar Sharma D/o Late Shri Ramdayalu Sharma, R/o Brij Mandal Colony, G-3, Balaji Apartment, Jhotwara, Jaipur

4. Smt. Usha Sharma W/o Shri Prahalad Sharma D/o Late Shri Ramdayalu Sharma, R/o Girraj Maruti Work Shop, [2025:RJ-JP:23716] (3 of 28) [CR-155/2024] near Mathura Refinery, Mathura (UP)

5. Smt. Rama Sharma W/o Late Shri Sitaram Sharma D/o Late Shri Ramdayalu Sharma, R/o Plot No.41, Vaishno Devi Nagar, near Vaishno Devi Temple, Jhotwara, Jaipur

6. Smt. Shachi Sharma W/o Shri Rajesh Sharma D/o Late Shri Ramdayalu Sharma, R/o F-52, Kamla Nagar, Purani Delhi

7. Smt. Pragya Sharma W/o Shri Bhalendu Sharma D/o Late Shri Ramdayalu Sharma, R/o Vaidyaji Ka Ka Nohara, Rajgarh Road, Pilani, Jhunjhunu, Petitioner No.3 to 7 through Power of Attorney Sriniwas Sharma S/o Late Shri Ramdayalu Sharma ----Petitioners Versus

1. Smt. Shalini @ Shaila W/o Shri Harish Sharma D/o Late Shri Balgovind Sharma, Aged About 48 Years, R/o Navjeevan Upvan, (Parijat Bhawan) Moti Dungri Road, Jaipur

3. Smt. Sulochna Devi W/o Late Shri Bal Govind Sharma Manish Sharma S/o Late Shri Bal Govind Sharma, both R/o Navjeevan Upvan, (Parijat Bhawan) Moti Dungri Road, Jaipur

4. Smt. Shobha Sharma (Ladhaniya) W/o Dr. Shri Ramprasad D/o Late Shri Bal Govind Sharma, R/o 1/1, Ambika Vihar, Flat No. B, Harjoot Rai, Chanriya Road, Hawrah, West Bengal

5. Shri Navneet Sharma S/o Late Shri Bal Govind Sharma, R/o Lat No. 402, Ganpati Darshan, 10, Chetak Marg, Trimurti Circle, Jaipur

6. Smt. Jyotirmayi Devi W/o Shri Umashankar Sharma D/o Shri Nandkishore Ji, R/o CZ-9, Metropolitan, Bye Pass Co- Operative Housing Society, Canal South Road, Chingari Hatta, Kolkata, WB. (Since Deceased) Through Legal Representatives 6/1. Smt. Suchita Sharma W/o Shri Praveen Sharma, R/o A-1- 6, LIC Colony Opposite Vidhyadhar Nagar Police Station, Jaipur 6/2. Raghvendra Joshi S/o Shri Umashankar Joshi, R/o CZ-9, [2025:RJ-JP:23716] (4 of 28) [CR-155/2024] Metropolitan Co-Operative Housing Society, Kolkata 6/3. Smt. Shaifali Badhadhara w/o Shri Braj Mandal Badhadhara R/o Flat No. C-406-A, Crux Gokul Plaza Bhoomi Khalpuri, Cuttack Road, Bhuvaneshwar Orissa 6/4. Rohit Sharma S/o Umashankar Joshi, R/o CZ-9, Metropolitan Co-Operative Housing Society, Kolkata, WB

7. Surendra Kumar Baradiya S/o Late Shri Sagarmal Baradiya, R/o 20 Royal Ensign, Statute Circle, Jaipur

8. Smt. Neelam Jain W/o Shri Rishab Jain D/o Shri Surendra Kumar Baradiya, R/o 20 Baradiya Colony, Museum Road, Jaipur Presently Residing 7-A, Near Panchvati Sukhadiya Circle, Udaipur

9. Jaipur Nagar Nigam, through Commissioner, Nagar Nigam Bhawan, Near SMS Stadium, Tonk Road, Jaipur

10. Jaipur Development Authority, Through Commissioner, JDA Bhawan, Indira Gandhi Circle, JLN Marg, Jaipur ----Respondents And S.B. Civil First Appeal No. 141/2021 Raghvendra Joshi S/o Shri Uma Shankar Sharma, (Mother Late Smt. Jyotiramayee Sharma D/o Late Raj Vaidhya Shri Nand Kishore Sharma W/o Shri Uma Shankar Sharma) Aged 55 Yrs. R/o CZ-9, Metropolitan Bypass, Co-Operative Housing Society Kannel South Road, Chingari Hatta, Calcutta. Through Power Of Attorney Holder Shri Sunil Joshi S/o Late Shri Chaggan Lal Age 55 Yrs. R.o. Flat No.5, Purana Post Office Store Colony, Laxmi Nagar, Paota B Road, Jodhpur. Versus ----Petitioner

1. Ambrish Sharma S/o Late Pandit Ram Dayalu Sharma, R/o Anand Niwas, Navjivan Upvan, Dhaddho Ka Bagh, Moti Dungari Road, Jaipur.

2. Shree Niwas S/o Late Pandit Ram Dayalu Sharma, R/o Anand Niwas, Navjivan Upvan, Dhaddho Ka Baghh, Moti Dungari Road, Jaipur.

3. Smt. Uma Sharma W/o Shri Prahlad Sharma D/o Late Pandit Ram Dayalu Sharma, R/o Giriraj Maruti Workshop, Near Mathura Refinery, Mathura, Uttar Pradesh. [2025:RJ-JP:23716] (5 of 28) [CR-155/2024]

4. Smt. Usha Sharma W/o Shri Ramawatar Sharma D/o Late Pandit Ram Dayalu Sharma, R/o B-12, Gokul Vatika, JLN Marg, Jaipur.

5. Kumari Pragya Sharma W/o Bhalendu Sharma (D/o Late Ram Dayalu Sharma), R/o Vaidhya Ji Ka Nohra, Rajgarh Road, Pilani, Jhunjhunu, Rajasthan.

6. Smt. Sachi Kumari W/o Shri Rajesh Sharma (D/o Late Ram Dayalu Sharma), R/o F-52, Kamla Nagar, Old Delhi.

7. Smt. Rama Sharma W/o Late Shri Sita Ram Sharma D/o Late Pandit Ram Dayalu Sharma, R/o Plot No.41, Vaishnao Devi Nagar, Near Vaishnao Devi Mandir, Jhotwara, Jaipur.

8. Smt. Sulochana Sharma W/o Late Shri Balgovind Sharma, R/o Parijat Bhawan, Nav Jeevan Upvan, Dhaddho Ka Baghh, Moti Dungari Road, Jaipur.

9. Smt. Sobha Ladhaniya W/o Dr. Ram Prasad Ladhaniya, (D/o Late Shri Balgovind Sharma) R/o 1/1, Ambika Vihar, Flat No.B-22, Hardutrai Chamariya Road, Hawara, West Bangal.

10. Smt. Shalini Sharma W/o Shri Harish Sharma D/o Late Shri Balgovind Sharma, R/o Parijat Bhawan, Nav Jeevan Upvan, Dhaddho Ka Bagh, Moti Dungari Road, Jaipur.

11. Navneet Sharma S/o Late Shri Balgovind Sharma, R/o 402, Ganpati Darshan, Govind Marg, Near Trimurti Circle, Jaipur.

12. Manish Sharma S/o Late Shri Balgovind Sharma, R/o Parijat Bhawan, Nav Jeevan Upvan, Dhaddho Ka Bagh, Moti Dungari Road, Jaipur.

13. Sukh Sagar Buildcom Pvt. Ltd. through Director Surendra Bardiya, 20, Bardiya Colony, Museum Road, Jaipur.

14. Surendra Bardiya S/o Shri Sagarmal Bardiya, Aged About 46 Years, R/o Bardiya Colony, Museum Road, Jaipur.

15. Navratan Gujrani S/o Shri Chandan Mal Gujrani, R/o H.No. 2447 Gujrani House, New Market, Ghee Walon Ka Rasta, Johari Bazar, Jaipur.

16. Smt. Suchita Sharma W/o Shri Praveen Sharma D/o Shri Uma Shankar, (Mother Late Smt. Jyotirmayee Sharma D/o Late Raj Vaidhya Shri Nand Kishore W/o Shri Uma Shankar Sharma) Aged About 60 Yrs. R/o A-1-6 LIC [2025:RJ-JP:23716] (6 of 28) [CR-155/2024] Colony, Opposite Vidhyadhar Nagar, Police Station, Jaipur.

17. Smt. Shefalee W/o Shri Brijmandal D/o Shri Uma Shankar Sharma, (Mother Late Smt. Jyotiramayee Sharma D/o Late Raj Vaidhya Shri Nand Kishore Sharma W/o Shri Uma Shankar Sharma) Aged About 58 Yrs, R/o Flat No.C- 406, A C R U X, Gokul Plaza, Khalpuri, Katak Road, Bhuvneshwar, Orisa.

18. Rohit Sharma S/o Shri Uma Shankar Sharma, (Mother Late Smt. Jyotirmayee Sharma D/o Late Raj Vaidhya Shri Nand Kishore Sharma W/o Shri Uma Shankar Sharm) Aged About 44 Yrs. R/o CZ-9, Metropolitan Bypass, Co- Operative Housing Society Kannel South Road, Chingari Hatta, Calcutta Presesntly Residing At Jaipur. ----Respondents For Petitioner(s) : Mr. G.P. Sharma Mr. M.C. Gupta For Respondent(s) : Mr. Giriraj Bardhar Mr. Kapil Bardhar Mr. Suresh Charan HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Judgment 28/05/2025

1. These three cases related to common subject matter between common parties, therefore, we are disposing of these cases with a common judgment.

2. S.B. Civil Revision Petition No. 155/2024 is preferred by the petitioners-defendants No.1 and 2, aggrieved from order of dismissal of application under Order VII Rule 11 CPC in Civil Suit No.35/2023 (82/2014) on 30.01.2024 by learned Additional District Judge No.3, Jaipur Metropolitan-I.

3. S.B. Civil Revision Petition No. 39/2020 is preferred by the petitioners-defendants No.1, 2 and 7 to 12 aggrieved from order [2025:RJ-JP:23716] (7 of 28) [CR-155/2024] dated 16.10.2019 in Civil Suit No.82/2014 passed by learned Additional District Judge No.2, Jaipur Metropolitan, Jaipur, whereby an application under Section 151 CPC was dismissed.

4. S.B. Civil First Appeal No. 141/2021 is preferred by the plaintiff Raghvendra Joshi through power of attorney holder Shri Sunil Joshi aggrieved from judgment dated 02.03.2021 in Civil Suit No.73/2019 (582/2019) passed by learned Additional District Judge No.8, Jaipur Metropolitan-I whereby on an application under Order VII Rule 11 read with section 151 CPC filed by defendant Nos.6 and 7, civil suit for partition, declaration, possession, permanent injunction and ancillary relief was rejected while invoking power under Order VII Rule 11 read with Section 151 CPC.

5. Learned counsel Mr. G.P. Sharma appearing on behalf of petitioners in both the Civil Revision Petitions and for respondents in Civil First Appeal while placing reliance upon grounds of revision petitions and defence in Civil First Appeal submitted that : (i) Plaintiff Shalini @ Shaila has filed a civil suit as daughter of Balgovind Sharma for partition, declaration, rendition of account and permanent injunction for partition of properties left by her grand-father Nand Kishore, expired on 06.06.1954. He further submitted that as per averment in plaint after death of her grand- father late Ram Dayalu who was uncle of plaintiff was Manager of Hindu Undivided Family till his death on 19.04.1979. He further submitted that as per plaintiff, the properties were divided during the lifetime of father of plaintiff and Ram Dayalu and a partition deed was executed between them. He also submitted that the plaintiff has filed a suit to claim 1/15 share in the property. [2025:RJ-JP:23716] (8 of 28) [CR-155/2024] (ii) He referred a counter claim filed by legal heirs of Jyotirmayi Devi through power of attorney holder Raghvendra Joshi in Civil Suit No.82/2014 and submitted that defendant Nos.2 and 3 have also filed an application under Order VII Rule 11 CPC to dismiss the counterclaim. He further submitted that on earlier occasions several litigation were filed and same have attained finality which were brought on record by the petitioners and admitted by all the parties, which is sufficient to show that instant suit is filed only to harass the present petitioners. He also submitted that a civil suit No.73/2019 (582/2019) was filed by Raghvendra Joshi through power of attorney holder Shri Sunil Joshi and this suit was dismissed under Order VII Rule 11 CPC on 02.03.2021 and first appeal against said order is pending before this Hon’ble Court. He also submitted that disputed property was purchased on

06.08.1942 in the name of Ram Dayalu and same is a self- acquired property of Ram Dayalu and no right whatsoever accrued in favour of plaintiff to claim partition of said property. He further referred other documents and submitted that after rejection of a frivolous suit, instant counterclaim is filed by the legal heirs of defendant No.12 Jyotirmayi Devi, and same is not maintainable. (iii) He also submitted that the plaintiff has filed a civil suit for partition wherein an application under Section 151 CPC is filed on

23.01.2019 by present petitioners. He also submitted that Civil Suit No.82/2014 filed by the plaintiff Smt. Shalini @ Shaila is abuse of legal right and this suit is liable to be dismissed under Order VII Rule 11 CPC. He also submitted that the plaintiff has concealed material fact in the plaint and did not disclose correct fact, particularly, about previous litigation and disposal of property [2025:RJ-JP:23716] (9 of 28) [CR-155/2024] by some of the defendants. He also referred finality of litigation between the parties and submitted that by one or the other reason some parties without any right are filing frivolous litigation to drag present petitioners into litigation. (iv) Learned counsel further defended the order dated

02.03.2021 in Civil Suit No.73/2019 and submitted that the Civil Suit is rightly dismissed under Order VII Rule 11 CPC, as same is barred by law and filed without any cause of action.

6. Learned counsel has posed following questions for consideration by this Court:- (I) Whether a daughter / granddaughter would acquire any right, either limited or absolute, by inheritance prior to coming into force of the Hindu Succession Act, 1956 (for short ‘the Act of 1956’) in the property of her deceased father who died prior to 1956, leaving behind him in addition to such daughter, his widow as well? (II) Whether plaint can be rejected under Section 151 CPC even in the absence of available grounds under Order VII Rule 11 CPC frivolous litigation can be nibbed in the bud at the earliest possible stage to safeguard the rights of adversary in facing litigation prolonging his agony? (III) Whether concealment of facts, withholding of information and suppression of material facts by the plaintiff amounting to playing fraud over the court, and authorize the court to dismiss the suit of the plaintiff under Section 151 CPC?

7. Learned counsel has placed reliance upon judgment in case of Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) (D) THR LRs & Ors : AIR 2020 SC 3310, Raghwendra Sharan [2025:RJ-JP:23716] (10 of 28) [CR-155/2024] Singh Vs. Ram Prasanna Singh (Dead) by LRs : (2019) 2 CCC 417 (SC) and Satyendra and Ors. Vs. Saraj & Ors. : Civil Appeal No.4833 of 2022 (judgment dated 17.08.2022) and submitted that if on a meaningful reading of plaint or counterclaim and even by a clever drafting, no cause of action arise and the plaint or counterclaim is barred by law and same is required to be rejected under Order VII Rule 11 CPC. He further submitted that even no counterclaim is maintainable among the defendants. He submitted that the counterclaim filed by legal heirs of Jyotirmayi Devi clearly reflect they are seeking relief against the defendants (present petitioners) and not against the plaintiff and the suit filed by Raghvendra Joshi one of the legal heirs of Jyotirmayi Devi has already been rejected under Order VII Rule 11 of CPC.

8. Learned counsel has further relied upon judgment of Bombay High Court in case of Radhabai Balasaheb Shirke (since deceased) through her heirs & LRs Vs. Keshav Ramchandera Jadhav and Ors. : 2024 BHC-AS:43314 and submitted that a daughter is not having any right either limited or absolute by inheritance prior to coming into force of the Act of 1956 in the property of her deceased father who expired prior to coming into force of the Act of 1956. He further referred judgment of Kerala High Court in case of Panakkal Rajendran and Anr. Vs. M. Sreenivasan : 2013:KER:24816 and submitted that a widow has no right in the property in the case of succession opened prior to 1956. He further referred judgment of this Court in case of Pukhraj Soni Vs. Seema & Anr. : 2019(3) CCC 160 (Raj.) and submitted that even a plaint can be rejected under Section 151 CPC in absence of available ground under Order VII [2025:RJ-JP:23716] (11 of 28) [CR-155/2024] Rule 11 CPC as frivolous litigation is to be nibbed in the bud at the earliest possible stage to safeguard the rights of adversary in facing litigation and prolonging his agony.

9. He further referred judgment in case of Swarn Singh Vs. Surinder Kumar & Ors. : CS(OS) No.166/1997 (date of judgment 22.12.2010) and submitted that if the plaintiff has indulged in unscrupulous conduct which cannot be condoned then to keep stream of justice unpolluted from unscrupulous and dishonest litigant, the suit has to be rejected. He further referred and relied upon judgment in case of Suresh Madan and others Vs. Manvendra Singh and others : MP No.3302/2018 (date of judgment 07.09.2022) (MP) and submitted that when a cause of action is not disclosed then the Court is duty bound to reject the plaint under the inherent powers. He also submitted that in the instant case both the civil suit filed by Smt. Shalini @ Shaila and counterclaim filed by legal heirs of Jyotirmayi Devi are liable to be rejected.

10. He also referred provision of Order VIII Rule 6(C) and submitted that a counterclaim can be excluded anytime and the party filing counterclaim may be directed to file separate suit. He further submitted that this issue was considered by a Co-ordinate Bench of this Court in case of Masoom Ali Khan Vs. Rameshwar (since deceased) through his LRs : S.B. Civil Writ Petition No.15106/2009 (order dated 05.07.2018). At last, he submitted that both the revision petition Nos.155/2020 and 39/2020 be allowed and the civil suit filed by Smt. Shalini @ Shaila and counterclaim filed by legal heirs of Jyotirmayi Devi be rejected to give finality to the previously settled litigation between [2025:RJ-JP:23716] (12 of 28) [CR-155/2024] the parties. He also submitted that a civil appeal preferred by Raghvendra Joshi is frivolous in nature and same be dismissed.

11. Aforesaid contentions were opposed by learned counsel for the respondents and submitted that application under Order VII Rule 11 CPC can be decided only on basis of averment made in plaint and no amount of defence can be looked by any Court. It is submitted that the trial Court has rightly dismissed application under Section 151 CPC on 16.10.2019 and Order VII Rule 11 CPC on 30.01.2024. It is further submitted that the trial Court has committed a serious error while considering the defence of defendant Nos.6 and 7 in Civil Suit No.73/2019 (582/2019) in allowing the application under Order VII Rule 11 CPC.

12. Learned counsel for respondent(s) appearing in revision petition No.155/2024 while placing reliance upon Jitendra Jewellers Vs. B. Venkateswara Rao [Second Appeal No.896/2017 date of judgment 15.12.2017 (AP)] and Ballabh Dass & Anr. Vs. S.B.B.J. & Ors. (AIR 1997 Raj. 199) has submitted that the defendant No.11/2 is a party defendant in a civil suit filed by plaintiff Smt. Shalini @ Shaila and he has a right to file a counterclaim in accordance with the provision of Order VIII CPC. He submitted that this counterclaim is neither opposed by plaintiff nor plaintiff has prayed for exclusion of counterclaim under Order VIII Rule 6(C) of CPC. He further submitted that the plaintiff and defendants are members of undivided HUF and in order to give effect to partition, it is necessary that there must be a partition on principle of meets and bound but when some of powerful co-parceners in family played a role of dominance then there is no option except to file a suit [2025:RJ-JP:23716] (13 of 28) [CR-155/2024] before a Civil Court. He further submitted that the trial Court has rightly dismissed the application under Order VII Rule 11 of CPC as the petitioners have no locus to challenge the filing of counterclaim filed by present respondent. He also submitted that if there is any order in a previously instituted suit then the objection of maintainability can be decided by framing an issue but a counterclaim cannot be dismissed under Order VII Rule 11 CPC, on application of co-defendant(s). Ld. counsel has further referred and relied upon judgment in case of Sh. Jag Mohan Chawla & Anr. Vs. Dera Radha Swami Satsang & Ors. : AIR 1996 SC 2222 and submitted that a counterclaim is required to be treated as cross suit and when the plaintiff has not opposed the counterclaim then the present petitioners-defendants have no right to object to filing of such counterclaim.

13. Learned counsel appearing for the respondent-plaintiff has opposed revision petition No.39/2020 and submitted that in any suit when the grounds under Order VII Rule 11 CPC are not attracted then a suit cannot be dismissed by invoking power under Section 151 CPC. He further submitted that if any judgment or decree has been obtained by playing fraud on any previous occasion then said judgment and decree shall not operate as res judicata. He also submitted that even in case of Ram Chandra Singh Vs. Savitri Devi and Ors. : (2003) 8 SCC 319 Hon’ble Supreme Court has considered in case of SP Changalvaraya Naidu (Dead) by LRs Vs. Jagannath (Dead) by LRs and Ors. : MANU/SC/0192/1994 and held that if a judgment and decree in a previously instituted suit has been obtained by playing fraud then principle of res judicata will not apply. He also placed [2025:RJ-JP:23716] (14 of 28) [CR-155/2024] reliance upon judgment in case of Badami (Deceased) By her LRs Vs. Bhali : (2012) 11 SCC 574 and submitted that a suit filed by the present respondent is maintainable and same cannot be dismissed under Section 151 CPC.

14. Learned counsel for the appellant-Raghvendra Joshi in S.B. Civil First Appeal No.141/2021 while placing reliance upon judgments in case of Eldeco Housing and Ind. Ltd. Vs. Ashok Vidyarthi : 2023 INSC 1043, Shri Hari Hanumandas Totala Vs. Hemant Vitthal Kamat : AIR 2021 SC 3802, SP Changalvaraya Naidu Vs. Jagannath : 1994 AIR 853, Hamja Haji Vs. State of Kerala and Anr. : AIR 2006 SC 3028, Shatrughan Isser Vs. Smt. Sabujpari and Ors. : 1967 AIR 272, Potti Lakshmi Perumallu Vs. Potti Krishna Venamma : 1965 AIR 825, Mangal Singh and Ors. Vs. Smt. Rattno and Anr. : AIR 1967 SC 1786, Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) : AIR 2020 SC 3310, A.V. Pappya Sastry and Ors. Vs. Govt. A.P. : Appeal (Civil) No.5097-5099 of 2004 (judgment dated 07.03.2007 (SC)), Keshav Sood Vs. Kirti Pradeep Sood and Ors. : Civil Appeal No.5841 of 2023 (judgment dated 12.09.2023 (SC)) and submitted that appellant-plaintiff has filed a civil suit for declaration, partition and permanent injunction for joint hindu family property, not partitioned till date and with additional prayer for cancellation of preliminary decree dated 30.01.1980 and final order dated

06.03.1982 in Civil Suit No.146/1977 filed for partition and separate possession of joint hindu family property on the ground of fraud played by one of the defendant Shriniwas on basis of [2025:RJ-JP:23716] (15 of 28) [CR-155/2024] fraudulent documents created with forged signature of late Shri Ram Dayalu.

15. He further submitted that during pendency of civil suit filed by the present appellant, an application under Order VII Rule 11 CPC is filed by defendants-respondents and the trial Court without considering basic principles of rules propounded by Hon’ble Supreme Court has allowed the application while rejecting the suit. He further submitted that no amount of defence or averment in application can be looked into by any Court while deciding application under Order VII Rule 11 CPC. He further submitted that the plaintiff appellant has filed a suit on basis of fraud and misrepresentation and issue of res judicata is neither attracted nor applicable in suit filed to challenge a decree obtained on basis of fraud and misrepresentation. He also submitted that when a proper cause of action has been disclosed by mentioning the facts then the Court cannot consider the cause of action as frivolous or vexatious. He further referred the material on record and submitted that while deciding application under Order VII Rule 11 CPC a trial Court is bound to look into the averment of plaint and documents annexed with plaint but cannot travel beyond the principles as propounded by Hon’ble Supreme Court.

16. He also submitted that time and again, Hon’ble Supreme Court has laid down that unless the plaint itself disclose that the suit is barred by law a Court cannot reject the suit purely on the ground of limitation which is a question of fact and law. He also referred Section 11 of CPC and submitted that the facts clearly indicate that the issue of res judicata is a mixed question of fact and law and same cannot be considered under Order VII Rule 11 [2025:RJ-JP:23716] (16 of 28) [CR-155/2024] of CPC to reject the suit of plaintiff. He further submitted that plaintiff has clearly alleged concealment of facts while obtaining a decree on previous occasion and also fraud played by respondents-defendants and on basis of such averment, a suit is maintainable before the Civil Court. He also submitted that admittedly the property is of HUF and same is a question of fact which can be decided only after leading the evidence after settlement of issues but the trial Court without considering the correct legal position has allowed the application and rejected the suit. At last, he submitted that the instant appeal be allowed and the impugned order be set aside and be remitted back.

17. Learned counsel appearing on behalf of the respondent- defendant in CFA No.141/2021 has vehemently opposed the contentions of learned counsel for the appellant-defendant and submitted that time and again this Hon’ble Court has considered similar issues and observed that a frivolous litigation should be nibbed in the bud so that it may not occupy valuable time of the Court. He further submitted that when a litigation has already attained finality and no action was taken for years then all of sudden if any of legal heirs files a suit then it seriously cast a doubt on intention to file a suit. He further submitted that after rejection of present suit, this plaintiff has filed a counterclaim in another civil suit filed by Smt. Shalini @ Shaila.

18. Heard learned counsel for the parties and perused the entire record and material placed in all three matters. Also perused the judgments as referred by learned counsel for the parties but for sake of brevity we are not referring individual judgments in detail but we have gone through the written submissions along with [2025:RJ-JP:23716] (17 of 28) [CR-155/2024] judgments as relied upon by learned counsels in support of their contentions.

19. Here in this case, the subject matter involved is rejection of plaint (civil suit) or counterclaim either under Order VII Rule 11 CPC or under Section 151 CPC. A reference is also made about Order VIII Rule 6 CPC and also of Section 11 of CPC and we have considered these provisions and relevant legal position.

20. 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 : (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 [2025:RJ-JP:23716] (18 of 28) [CR-155/2024] by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”

21. 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 an 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.

22. 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.

23. 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) [2025:RJ-JP:23716] (19 of 28) [CR-155/2024] of Order VII Rule 11 of the Code, the averments in the plaint are germane; the pleas taken by the defendants in the written statement would be wholly irrelevant at that stage.

24. Hon’ble Supreme Court in case of Dahibhen Vs. Arvindbhai Kalyanji Bhanusali through LRs and Ors. (supra) 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 has 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.

25. 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, but the conditions enumerated in Order VII Rule 11 CPC are required to be strictly adhered to.

26. 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 detail facts as provided under the written statement or even in the application filed for rejection of plaint. While scrutinizing the [2025:RJ-JP:23716] (20 of 28) [CR-155/2024] averments in the plaint, the Court can read documents annexed and relied upon in the plaint.

27. 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.

28. In case of Temple of Thakur Shri Mathuradassji Chhota Bhandar Vs. Shri Kanhaiyala & Ors. : 2008(4) CCC 133 (Rajasthan), a Coordinate Bench while considering the provision of Section 151 CPC and order VII Rule 11 CPC has held that if a suit cannot be dismissed under Order VII Rule 11 CPC then same can be dismissed under Section 151 CPC if it is a frivolous litigation. This judgment was relied by another Co-ordinate Bench in case of Pukhraj Soni Vs. Seema & Anr. (supra) and we are referring relevant para from the judgment of Temple of Thakur Shri Mathuradassji Chhota Bhandar Vs. Shri Kanhaiyala & Ors. (supra):- “16. Totality of the circumstances clearly shows that the plaintiffs filed the suit for taking benefit of procedure provided by the Civil Procedure Code and, therefore, submitted that plaint of the plaintiffs could have been rejected under Order 7 Rule 11 CPC. Under Order 7 Rule 11 CPC plaint can be rejected on the grounds mentioned in the Order 7 Rule 11 CPC like the suit is barred by law or it does not disclose the cause of action or proper court fees has not been paid even after order of the court. If the suit is abuse of process of the court and cannot be dismissed under Order 7 Rule 11 CPC then the court is not helpless and can accordingly invoke the powers under Section 151 [2025:RJ-JP:23716] (21 of 28) [CR-155/2024] CPC and can dismiss the suit under Section 151 CPC. Frivolous litigations are required to be nipped in the bud at the earliest possible stage otherwise no relief to the aggrieved party because of the reason that sole object of the frivolous litigation is to drag adversary in the litigation till it is dismissed consuming several years in trial. If court reaches to the conclusion that suit is frivolous from the totality of the facts brought on record or which have come on record then by not dismissing the suit at earliest, the court virtually declares that a frivolous suit can demand trial of suit and aggrieved party has no remedy against frivolous suit. If there are creases in the law or sometimes is left out or not specifically provided in statute then they are required to be ironed out by the courts by interpreting the law in a manner to advance the cause of justice and no party can be left with no remedy against frivolous suits. At the cost of repetition, it is observed that the continuation of frivolous suit against any person on the ground that it cannot be dismissed since there is no provision under Order 7 Rule 11 CPC is virtually denying an aggrieved party his right to crush the frivolous litigation without suffering the trial of suit.” In case of Raghwendra Sharan Singh Vs. Ram Prasanna

29. Singh (Dead) by LRs (supra) Hon’ble Supreme Court while considering law of limitation and held that if plaintiff by clever drafting brings a suit claiming cause of action to be within period of limitation as otherwise is barred by law of limitation then the plaint is required to be rejected under Order VII Rule 11 of CPC. In case of Ram Chandra Singh Vs. Savitri Devi and Ors. (supra) while considering Section 11 of CPC it was held that misrepresentation amounts to fraud and once a judgment and decree, obtained by fraud then principle of res judicata would not apply. In case of Sh. Jag Mohan Chawla & Anr. Vs. Dera Radha Swami Satsang & Ors. (supra) while considering judgment in case of Mahendra Kumar and Anr. Vs. State of [2025:RJ-JP:23716] (22 of 28) [CR-155/2024] Madhya Pradesh & Ors. [(1987) c SCC 265] it was held that if cause of action in the counterclaim has arisen before filing of written statement then counterclaim is maintainable and should be tried and decided in same suit.

30. In case of Eldeco Housing and Ind. Ltd. Vs. Ashok Vidyarthi (supra) and Shri Hari Hanumandas Totala Vs. Hemant Vitthal Kamat (supra), Hon’ble Supreme Court has held that an application under Order VII Rule 11 CPC has to be decided only on basis of averment in plant and no amount of evidence or merit of the matter can be looked at this stage. Further, referring and relying upon a three Judges Bench judgment in case of M/S. Shakti Bhog Food Industries Ltd. vs The Central Bank of India and Anr. : (2020) 17 SCC 260, it was held that law of limitation is a mix question of fact and law and a suit cannot be rejected and same is barred by law of limitation. In case of Shri Hari Hanumandas Totala Vs. Hemant Vitthal Kamat (supra) while considering Section 11 of CPC, it was held that either this ground can be decided as a preliminary issue if it is a pure question of law or at the stage of final hearing but not at the stage under Order VII Rule 11 CPC.

31. In cases of A.V. Pappya Sastry and Ors. Vs. Govt. A.P. and Ors. (supra) and SP Changalvaraya Naidu Vs. Jagannath (supra), it was held that if any judgment or order is obtained by fraud it cannot be said to be a judgment or order in law as fraud vitiate everything. In case of Keshav Sood Vs. Kirti Pradeep Sood and Ors. (supra) again it was held that ground of res judicata is a mix question of fact and law. [2025:RJ-JP:23716] (23 of 28) [CR-155/2024]

32. A Civil Suit No.73/2019 (582/2019)(611/2019) titled as Ragvendra Joshi and Ors. Vs. Uma Sharma and Ors. was filed on 01.10.2019 for partition, declaration, possession, injunction and ancillary relief. During pending of this civil suit filed by Raghvendra Joshi, Suchita Sharma, Shefali, Rohit sharma (all legal heirs of Jyotirmayi Sharma who is daughter of Nand Kishoare Sharma), an application under Order VII Rule 11 CPC is filed by defendant No.6 Shriniwas and defendant No.7 Ambrish Sharma both sons of late Shri Ram Dayalu Sharma and said application was allowed on 02.03.2021 and suit was rejected under Order VII Rule 11 CPC on the ground that the suit is barred by law of limitation and no cause of action accrued upon the plaintiffs to file a suit against the defendants. A perusal of plaint and documents annexed and relied in plaint indicate that the plaintiff has sought declaratory relief about preliminary decree dated 30.01.1980, Will dated 27.03.1979, compromise deed dated 06.03.1982. As per plaint, the cause of action was accrued on 09.09.2019 when the plaintiffs have acquired knowledge. The plaintiffs have lodged a report to police on 11.09.2019.

33. An application under Order VII Rule 11 CPC is filed raising three basic grounds, firstly, suit is barred by law of limitation as it has been filed after substantial delay, secondly, no cause of action accrued upon the plaintiffs and thirdly, the suit is improperly valued and sufficient Court fee has not been paid. The respondent- defendant No.6 and 7 have also mentioned that Bal govind has filed a suit which was dismissed on 30.09.2002 and an appeal No.106/2003 was also filed before the High Court wherein a [2025:RJ-JP:23716] (24 of 28) [CR-155/2024] compromise was entered between the parties and this was within knowledge of Jyotirmai. The defendants have vehemently pleaded the grounds of res judicata, with assertion that an issue already decided, cannot be reopened.

34. The trial Court while considering application under Order VII Rule 11 CPC on 02.03.2021 has placed reliance upon grounds raised by defendants but also considered merits of the case and referred certain facts, which were not part of plaint. The trial Court has also imported facts from another Civil Suit No.82/2014, filed by Smt. Shalini @ Shaila against Shri Niwas and others. It also appears that the trial Court has not only considered the facts relating to other Civil suits, filed by other parties but also upon the reports of hand writing expert and other materials while disposing the application under Order VII Rule 11 CPC.

35. On face of record, the order dated 02.03.2021 appears to be passed after considering the entire material submitted by both the parties and not on basis of plaint and the documents relied and referred by the plaintiff. The trial Court has prima facie oversteped his jurisdiction while deciding application under Order VII Rule 11 CPC. If the trial Court was of the view that a suit is frivolous then the same can even be dismissed under Section 151 CPC, but any other material cannot looked into at this stage. If trial Court is of the view that the plaint is frivolous and barred by law but grounds under Order VII Rule 11 CPC are not attracted then a preliminary issue can be framed and decided under Order XIV Rule 2 CPC in view of the judgment of Hon’ble Supreme Court in case of Nusli Neville Wadia Vs. Ivory Properties : AIR 2019 SC 5125. [2025:RJ-JP:23716] (25 of 28) [CR-155/2024]

36. A perusal of judgment dated 02.03.2021 in Civil suit No.73/2019 indicate that a trial Court has considered entire material, whether filed by defendants or anybody else and has no connection with the averment in plaint and documents relied and referred in plaint. Morover, the trial Court has considered applicability of Section 11, principle of res judicata at the stage of Order VII Rule 11 CPC whereas principle of res judicata is not applicable at this stage of Order VII Rule 11 CPC.

37. Section 11 of CPC deals with res judicata and it is not applicable while considering an application under Order VII Rule 11 CPC as both operates at different stages with different scopes though both the provisions relate to preventing continuation of litigation. The purpose of Section 11 CPC is to prevent a Court from re-examining a matter which has already been decided between the same party by a Court of competent jurisdiction. A plea of res judicata is generally raised as a defence in a written statement and Order VII Rule 11 CPC which is a preliminary stage, therefore, same cannot be raised as a ground to reject a suit under Order VII Rule 11 CPC.

38. The purpose and scope of Order VII Rule 11 CPC and Section 11 CPC are discussed in detail and it appears that the trial Court has overlooked the principle behind the law while deciding application under Order VII Rule 11 CPC. It is also settled proposition of law that if any decree or any order obtained by playing a fraud or misrepresentation then same is a nullity and in such a case the law of limitation does not operate as barred to maintain a suit. A law provides for institution of a civil suit from [2025:RJ-JP:23716] (26 of 28) [CR-155/2024] the date of knowledge and not necessary from date of execution of document. Thus, the trial Court without considering the “Laxman Rekha” under Order VII Rule 11 CPC has allowed the application and rejected a suit, thus the order which is per se illegal and contrary to the principle of law settled till date by Hon’ble Supreme Court and of this Court.

39. A civil suit was filed by Smt. Shalini @ Shaila in year 2014 before learned District Judge and same was transferred to learned Additional District Judge No.2 and later to learned Additional District Judge No.3. Two different orders dated 16.10.2019 and

30.01.2024 were challenged by same petitioners by filing two revision petitions. In first revision petition No.39/2020, the defendants have challenged order dated 16.10.2019 passed under Section 151 CPC whereby the trial Court has refused to reject the plaint as frivolous and vexatious whereas revision petition No.155/2024 is filed after dismissal of application under Order VII Rule 11 CPC filed by co-defendant to reject a counterclaim filed by legal heirs of defendant No.12 Jyotirmayi Devi after rejection of their Civil Suit No.73/2019 (582/2019).

40. A Co-ordinate Bench of this Court has already laid down a principle of law that a plaint can be rejected even under Section 151 CPC, therefore, there is no doubt that if the Court is of the opinion that continuing a frivolous and vexatious suit will only consume valuable time of the Court then it should nipped in the bud while rejecting the suit. A similar principle was laid down by Hon’ble Supreme Court in case of T. Arivandandam vs. T.V. [2025:RJ-JP:23716] (27 of 28) [CR-155/2024] Satyapal (supra) but while deciding any application it is duty of the Court to remain within bounds of principle of law.

41. In a Civil Suit No.82/2014, a counterclaim has been filed seeking relief against other defendants but not against the plaintiff and plaintiff Shalini @ Shaila has not objected to filing of this counterclaim which is sufficient to show that there is a common interest between Ragvendra Joshi & others and Shalini @ Shaila. In such a situation, the trial Court is duty bound to consider invocation of provision under Order VIII Rule 6 (C) of CPC. Normally, a counterclaim cannot be filed against co-defendant, but a trial Court can exercise its power under Order VIII Rule 6(C) CPC to direct to file a separate suit. A counterclaim has to be tried as a suit and the law as referred hereinabove, clearly indicate that the trial Court has ignored the legal position while deciding the application on 30.01.2024.

42. Having considered the rival submissions and also the fact that there are multiple litigation between the parties prior to institution of Civil Suit No.82/2014 (35/2023) and also Civil Suit No.73/2019 (582/2019), therefore, appropriate that both the suits be consolidated and considered by same Court.

43. Having considered the entire material available on record, I am of considered view that it is appropriate to set aside all impugned orders passed by different Courts and remit back the matter for a fresh consideration after providing an opportunity of hearing to all the parties but with the direction that both the civil suits should be transferred to one Court, to avoid conflicting orders. [2025:RJ-JP:23716] (28 of 28) [CR-155/2024]

44. In view of discussion made hereinabove, S.B. Civil Revision Petition Nos.155/2024 and 39/2020 are hereby partly allowed whereas S.B. Civil First Appeal No.141/2021 is allowed and impugned orders dated 30.01.2024, 02.03.2021, 16.10.2019 are set aside and application under Order VII Rule 11 CPC dated

30.10.2023 and application under Section 151 CPC dated

23.01.2019 are remitted back to the trial Court for decision afresh after giving opportunity to both the parties. The application under Order VII Rule 11 CPC in Civil Suit No.73/2019 is also remitted back to the trial Court for decision afresh after affording opportunity of hearing to both the parties.

45. Learned District Judge, Jaipur Metropolitan-I is directed to ensure that both the Civil Suit No.73/2019 (582/2019) and Civil Suit No.35/2023 (82/2014) shall be transferred to same Court.

46. The parties are directed to remain present before the Court concerned on 18.07.2025.

47. Misc. application(s), if any, stand disposed of. (ASHOK KUMAR JAIN),J MR/82 to 84-suppli