LIYAKATA ALI KHAN Vs. USMAN KHAN

JUDGEMENT

(1.) The present petitioners being aggrieved by the order dated 24.12.2010 passed by the Civil Judge (Jr. Divn.), Jajpur in Civil Suit No. 40 of 2010 disallowing the prayer under Order 7, Rule 11 of the Code of Civil Procedure (hereinafter referred to as 'C.P.C.') as well as under Section 51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (hereinafter referred to as 'O.C.H.P.F.L. Act') have filed this writ petition.

(2.) The present opposite party as plaintiff instituted Civil Suit No. 40 of 2010 in the court of Civil Judge (Jr. Divn.), Jajpur praying therein for declaration of right, title and interest over the suit land and confirmation of possession. He also prayed for permanent as well as mandatory injunction prohibiting the defendants (present petitioners) from encroaching upon or causing any obstruction to the passage over the suit land. The present petitioners as defendants entered appearance and have already filed their written statement in the court below. Before the suit could be made ready for hearing a petition was filed by the present petitioners under Order 7, Rule 11 of the C.P.C. as well as under Section 51 of the Consolidation Act for rejection of the plaint on the ground of undervaluation of the suit property and proper court fee having not been paid and also that the suit is not maintainable as the parties had worked out their rights before the Consolidation Authority and therefore, the decision of the Consolidation Authority when binding on the parties that cannot be raised again in the Civil Court. The prayer which was made by the present petitioners for rejection of the plaint was opposed to by the plaintiff in the court below. The learned Civil Judge (Jr. Divn.), Jajpur after hearing the parties passed the impugned order at Annexure-1.

(3.) I have heard learned counsel for the petitioners as well as opposite party. Sri Mahadev Mishra, learned counsel appearing for the petitioners contended that the order is contrary to the provisions contained under Order 7, Rule 11 of the C.P.C. and when the suit was grossly undervalued and proper court fees not paid the plaint should have been rejected and besides that when the relief of injunction is dependant on the title and possession to the property in question and when the parties have already worked out their rights before the Consolidation Authorities, the same cannot again be agitated before the Civil Court. It was also contended that when the trial court did not consider the plaint averments the impugned order cannot be sustained and in that context reliance was placed in a decision of this Court as reported in 2010 (1) OLR 503, Mr. B.S. Saxena v. Arunima Kumari and others. By placing reliance on the aforesaid decision it was very strenuously urged by Mr. Mishra, learned counsel for the petitioners that the impugned order be set aside and the matter be remitted back to the court below for re-examination of the same by keeping in mind the ratio decided by the Apex Court in the case of Saleem Bhai v. State of Maharashtra reported in (2003) 1 SCC 557.