Jainendra Kumar Ranka, J. - (1.)The instant petition is directed against order dt 28.9.2016 passed by Civil Judge Metropolitan Magistrate (East), Jaipur Metropolitan, Jaipur, in Civil Suit No.81/2006, whereby the application filed by defendant-petitioner, under Order 7, Rule 11 Code of Civil Procedure was dismissed.
(2.)Brief facts noticed are that the plaintiff respondent filed a suit for declaration, permanent injunction and cancellation of patta against defendant no.1 defendant no.2 in the court of Civil Judge Metropolitan Magistrate (East), Jaipur Metropolitan, Jaipur. The plaintiff pleaded in her plaint that she is a resident of plot no.509, Mahaveer Nagar, Jaipur, and just adjacent to her plot, there is a park situated towards western side measuring 130 x 130 sq ft, which is recorded as 'facility area' in the records of the Jaipur Development Authority. It was further pleaded that earlier JDA allotted land admeasuring 1000 sq yd to one Hadoti Samaj and land measuring 708 sq yd to defendant-petitioner from the said 'facility area' and after some time, land allotted to Hadoti Samaj was cancelled and defendant no.1 was allotted land measuring 708 sq yd from the land allotted to Hadoti Samaj and the patta issued to defendant no.1-petitioner was modified and revised patta was issued to defendant no.1 on 12.2.2016. It was further pleaded in the plaint that defendant no.1 had not taken any other person as its member, except persons belonging from the Jain religion in their amended bye-laws and/or constitution, and as per the directives of this court in D.B. Civil Writ Petition No.1270/2001, Mahendra Singh Vs. Jaipur Development Authority (Public Interest Litigation) , a meeting was convened by the JDA to enable the parties to arrive at a settlement, wherein the husband of the plaintiff though not present, but still the JDA had shown the presence of plaintiff's husband in the meeting dt 24.4.2007, and it was further pleaded that neither the husband of the plaintiff was called by the JDA to attend the meeting, nor her husband was present in the meeting and no compromise was arrived at. It has also been pleaded that this court in its judgment dt 22.5.2015 had directed the use and occupation of the disputed land by general public and open to all and as defendant no.1 did not amend/modify their bye-laws as per mandate of this court, modified/revised patta issued on 12.2.2016 was liable to be declared as null and void and an injunction was sought that the JDA may be restrained from approving the site-plan/map of the suit property allotted to defendant no.1.
(3.)An application came to be filed under Order 7, Rule 11 read with section 151 Code of Civil Procedure by defendant no.1, petitioner herein, for rejection of the plaint primarily on the ground that no cause of action accrued to the plaintiff to file the present suit and that order of the Division Bench of this court settled all the issues and as per the mandate of such order, all conditions stand fulfilled and pursuant thereto revised patta granted by the JDA, was in accordance with law, and the suit was an abuse of the process of law and ought to be dismissed at the threshold. However, the trial court vide the impugned order, held that there were disputed questions and the same could only be decided after framing of issues and recording of evidence and thus rejected the application under Order 7, Rule 11 CPC.