Vineet Kothari, J. - (1.) THE Petitioner -defendant is aggrieved by the order dated 05.08.2011 passed by learned Civil Judge (Jr. Division), Nokha in Civil Suit No. 15/2010 whereby the Defendant's application under Order 7 Rule 11 Code of Civil Procedure has been rejected by the learned trial court in a suit filed by the Plaintiff -respondent for permanent injunction.
(2.) IN the said suit, the Defendant -petitioner claimed that under the agreement to sell executed by the Defendant, the possession of the suit property was not handed over to the Plaintiff and, therefore, the Plaintiff could not file/maintain suit for injunction without claiming relief of possession of the suit property also therein. Moreover, the suit itself was barred by 41 (h) of Specific Relief Act, 1963, however, the learned trial court has rejected the said application under Order 7 Rule 11 Code of Civil Procedure, inter -alia, on two grounds viz. (i) question of possession is a question of fact, which can be determined only after the parties have led their evidence and (ii) temporary injunction filed by the Plaintiff has already rejected by the two courts below and against the rejection of temporary injunction application by the two courts below, the Plaintiff -respondent approached this Court by filing writ petition being SBCWP No. 3053/2011, which also came to be decided on 05.05.2011 by this Court directing the trial court to decide the suit itself within six months, and therefore, the learned trial court was of the opinion that Defendant's application under Order 7 Rule 11 Code of Civil Procedure could not be allowed. Learned Counsel for the Petitioner -defendant relied upon a decision of a coordinate bench of this Court in the case of Municipal Board, Niwai v. Bhura and Ors. reported in 2006 (1) WLC (Raj.) 598 in which the coordinate bench has held that "where the Assistant Collector, Tonk on May 13, 1981 categorically observed that the Defendants were in possession of the suit land and restrained the Plaintiff from making interference in the possession of Defendants, the suit for permanent injunction was not maintainable. There is no nothing on record that could establish that the Defendants were ousted from the suit land by the Plaintiff. Extension of municipal limits by notification does not mean that the Defendants were automatically dispossessed from the suit land." He, therefore, submitted that without claiming possession the Plaintiff -respondent cannot maintain or file suit seeking permanent injunction.
(3.) HAVING heard learned Counsel for the Petitioner -defendant at some length and upon careful perusal of the judgment cited at bar, it is noticed that the aforesaid judgment relied upon by the learned Counsel for the Petitioner is clearly distinguishable on the facts. In the present case in hand, on the question of possession, there is no categoric finding by any court that possession is with the Defendant -petitioner. Therefore, the said judgment does not help the Defendant -petitioner in any manner. Moreover, the learned trial court appears to be justified in rejecting the application under Order 7 Rule 11 Code of Civil Procedure following the direction of this Court to decide the suit itself on merits within a period of six months. Therefore, no interference is called for in the impugned order.;