J.K.RANKA, J. - (1.) INSTANT writ petition under Article 226/227 of the Constitution of India is directed against the order dt.29/09/2014 passed by the learned trial court whereby the ld. trial court rejected the application filed by the defendant -petitioner under Order 14 Rule 2 read with section 151 CPC .
(2.) IT is the grievance of the petitioner that the trial court committed serious jurisdictional error in passing the impugned order and in disallowing the application of the defendant -petitioner under order 14 Rule 2 read with Section 151 CPC for deciding issues No.3, 6 and 9 as preliminary issues. It is the contention of counsel for the petitioner that the suit of the plaintiffs -respondents is in direct contravention of Section 42(b) of the Rajasthan Tenancy Act, 1955 and as issues No.3, 6 and 9, as framed by the trial court, pertain to the same, the trial court ought to have decided the same first as preliminary issue before deciding the other issues as these three issues go to the root of the matter and if the said three issues are decided as preliminary issues, then the trial court is not required to dwell upon the other issues saving considerable time, energy and labour of all concerned. The ld counsel for the petitioner contends that issue nos. 3,6 and 9 are issues of law and hence they ought to be decided first. While, relying upon judgment rendered in the case of State of Rajasthan Vs. Aanjaney Organic Herbal Pvt. Ltd,2012 4 Scale 138 he vehemently contends that the prohibition contained in Section 42(b) of the Rajasthan Tenancy Act is absolute and as such, the suit for specific performance and cancellation filed by the plaintiffs -respondents, is barred by law and it would be a futile exercise to decide issues No.3, 6 and 9 alongwith other issues framed by the trial court. To buttress his contention, counsel for the defendant -petitioner has further relied upon the following judgments. 1 -Praduman Kumar Vs. Girdhari Singh, 1970 AIR(Raj) 131 2 -Dhanraj Jain Vs. Smt. Suraj Bai, 1973 AIR(Raj) 7 3 -Jassoram Vs. State of Rajasthan, 2000 27 CivCC 4 -Panchayati Shri Digambar Jain Vs. Chiranji Lal Patni, 1988 2 WLN(Raj) 565 5 -State of Raj. Vs. Aanjaney Organics, 2012 9 Scale 138 6 -State of Raj. Vs. Uka Ram and ors., 2010 3 RajLW 2636 7 -Banwari Lal Vs. Anand and Ors.,2012 2 RRT 1179 8 -Ram Chandra Vs. Om Prakash, 1978 11 WLN(Raj) 466 9 -Balu and ors Vs. Bidra and Ors., 1983 AIR(Raj) 13 10 -Babu Singh Vs. State of Raj., 1998 1 WLN(Raj) 142 11 -Onkar Lal Vs. Kanku,1989 RRD 141 12 -Ram Kripal Das Ji Vs. Phool Chand, 2012 3 WLC(Raj) 516 13 -Premi Devi Vs. Deva Ram, 2009 1 DNJ 410 14 -State of Raj. Vs. Kanaram,1998 DNJ 616 15 -State of Raj. Vs. Bhawani Singh, 1980 WLN(Raj) 295 16 -Smt. Samand Kanwar Vs. State and Ors.,1978 RRD 192 17 -Sh. Azad Mills Vs. Nand Lal,1998 RRD 529 18 -Amar Singh Vs. State of Raj.,1995 RRD 325
(3.) HEARD ld. Senior Counsel for the defendant -petitioner and carefully perused the record and after giving my thoughtful consideration to the judicial pronouncements, cited by the ld. Counsel, it is pertinent to mention that the petitioner herein, defendant in the suit, moved an application under Order 7 Rule 11 on or about 15/07/2012 and sought rejection of the plaint on the ground that the suit was barred by law being in direct contravention of Section 42(b) of the Rajasthan Tenancy Act, 1955. The said application was allowed by the trial court but in appeal u/s 96 CPC this court vide judgment dated 22/1/2013 in SB Civil First Appeal No.639/2012 set aside such order of the trial court dated 26/10/2012 made certain observations and it would be fruitful to quote relevant para of the said judgment, which reads ad -infra: - "7. From the bare perusal of the said provision it transpires that there is general bar on the sale, gift and bequest by khatedari tenants of his interest in the part or whole of his holding in favour of a person who is not a member of schedule caste or schedule tribe. Though there cannot be any disagreement to the proposition of law laid down by the Apex Court that the society or company incorporated under the relevant statutes would be juristic person and could not be said to be member of scheduled caste or scheduled tribe, it requires to be noted that there is no bar under Section 42(b) of the Tenancy Act against filing of the suit. It may be a different thing that ultimately the appellant -plaintiff may not succeed in the suit on merits, in view of the said bar contained in Section 42, nonetheless in absence of any specific provision contained in the Tenancy Act barring the filing of the suit, the plaint of the appellant -plaintiff cannot be rejected under Order VII Rule 11 (d) of CPC. As rightly submitted by the learned counsel for the appellant, whether the land in question is an agricultural land or not and whether the respondents are khatedari tenants or not, and whether the suit is barred by limitation or not, would be the questions which could be decided considering the evidence in the suit only. The learned counsel for the respondents has failed to point out as to how the suit filed by the plaintiff could be termed as misuse of process of law or vexatious. In that view of the matter, the impugned order passed by the trial court deserves to be set -aside and the trial court is required to be directed to decide the suit in accordance with law and expeditiously. 8. At this juncture, the learned counsel Mr. Ashok Mishra for the appellant has requested to continue the interim relief granted by this Court till the pendency of the suit, which has been seriously objected by the learned Senior Advocate Mr. Gaur for the respondents. Mr. Gaur has further submitted that since prima facie the appellant -plaintiff is not entitled to any relief in the suit, and the issues regarding the limitation and jurisdiction of the Court, etc. being pure questions of law, the trial court be directed to decide them as preliminary issues in the suit. This Court cannot accept any of the submissions made by learned counsels for the parties for the simple reason that the trial court has rejected the plaint of the plaintiff under Order VII, Rule 11, and hence the issues are still to be framed by it. It is needless to say that both the parties shall be at liberty to make appropriate applications as may be legally permissible, to the trial court and the same shall be decided by the trial court in accordance with law. 9. In view of the above, the impugned order dated 26.10.2012 passed by the trial court is set -aside. The trial court is directed to decide the suit as expeditiously as possible and in accordance with law. The appeal is allowed accordingly." This Court, as aforesaid, while allowing the appeal, categorically observed that whether the land in question is an agricultural land or not and whether the respondents are Khatedar tenant or not or whether the suit was barred by limitation or not were questions, which could be decided considering the evidence in the suit only. Such being the position, this Court is of the opinion that the petitioners' application under Order 14 Rule 2 read with Section 151 CPC was not maintainable and was rightly rejected by the trial court.;