# Kishan Singh v. Shashi Jain & Anr

- **Citation:** (2020) 2 ILRA 1432
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-17
- **Case number:** Matters Under Article 227 No. 404 of 2020
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kishan-singh-v-shashi-jain-anr-45501
- **Pages:** 5

## Headnote

A. Constitution of India, 1950 - Article 227
- jurisdiction - Maintainability- Code of Civil
Procedure ,1908 - Section 21 of CPC -
Objections to jurisdiction - Order 7 Rule 11
of CPC - Rejection of plaint - Order4 Rule
1,2 & 3 - Institution of suit - specific
finding of the Revisional Court - dispute
related to property & Tenancy - no
jurisdiction
under
Article
227
of
Constitution of India. (Para 14)

B. Code of Civil Procedure ,1908 - Section
21 of CPC and Order 7 Rule 11 of CPC -
object and purpose - should be read
conjointly
and
not
separately
-
requirement - to raise objection at the
earliest before the framing of issue - raised
at a very belated stage during the
pendency of Revision. (Para12)

SCC Suit filed by the plaintiff-respondent for
eviction and arrears of rent - Petitionerdefendants not taken any objection under Order 7
Rule 11 CPC - Suit was decreed - Objection has
never been raised either before the Small Causes
Court or Revisional Court . (Para 7,13,)

Held:- Petitioner cannot be permitted to raise the
issue of raising objection of jurisdiction at the
belated stage. (Para-13)

Matters Under Article 227 dismissed.
(E-7)

## Text

1432 INDIAN LAW REPORTS ALLAHABAD SERIES
10(b) of the Act was an absolute
offence."

16. Perusal of the aforesaid judgment
clearly indicates that the assessee therein
was able to demonstrate before the Court
that he had imported the goods bonafidely
and did not file any false returns, his
intentions were further demonstrated by
the fact that on coming to know that the
items are not included in the registration
certificate, he had immediately moved an
application
for
amendment
of
the
registration certificate to include the items.

17. In the instant case, the assessee
despite
coming
to
know
that
the
goods/items have not been included in the
list, he did not moved any application for
disposal of pending application or moved a
fresh application for including the goods in
the certificate of registration.

18. The bonafides of the revisionist
are also not made out in the instant case,
inasmuch as, the certificate of registration
after due amendment would have been
returned to him alongwith endorsement of
the authority concerned. On the strength of
the aforesaid certificate of registration, the
revisionist continued his business of
importing
the
goods,
therefore,
the
revisionist cannot plead ignorance of the
certificate of registration wherein the list
of goods is also mentioned.

19. The revisionist in the present
case was fully aware of the amendments
incorporated
in
his
certificate
of
registration and from the list of items
appended therein, he should have been
aware of the fact that his application for
addition of goods had not been allowed
and this the items had not been included in
the list of goods he intends to import on
Form - C.

20. In the light of the above, the
judgment of the Hon'ble Apex Court in the
case of M/s Sanjiv Fabrics (supra) is
distinguishable on facts. In the instant
case, the revisionist had full knowledge
about the fate of his applications for
addition of branch as well as items. He had
commenced his business at the new branch
which
was
added
in
the
amended
certificate of registration. Despite the fact
that his application for addition of items
was not allowed, he continued to import
the said goods under Form-C and therefore
from the above facts it cannot be
deciphered that the revisionist has acted in
bonafide manner in importing the said
goods.

21. In view of the discussion made
above, this Court is of the considered
opinion that there is no illegality or
infirmity in the order of the Tribunal and
therefore no interference in the same is
required.

22. The revisions are dismissed.

23. The substantial questions of law
raised in these revisions are answered in
favour of the revenue and against the
revisionist.
----------
(2020)02ILR A1432

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2020

BEFORE
THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 404 of 2020
2 All. Kishan Singh Vs. Shashi Jain & Anr.
1433
Kishan Singh ...Petitioner
Versus
Shashi Jain & Anr. ...Respondents

Counsel for the Petitioner:
Sri Vishal Khandelwal

Counsel for the Respondents:

A. Constitution of India, 1950 - Article 227
- jurisdiction - Maintainability- Code of Civil
Procedure ,1908 - Section 21 of CPC -
Objections to jurisdiction - Order 7 Rule 11
of CPC - Rejection of plaint - Order4 Rule
1,2 & 3 - Institution of suit - specific
finding of the Revisional Court - dispute
related to property & Tenancy - no
jurisdiction
under
Article
227
of
Constitution of India. (Para 14)

B. Code of Civil Procedure ,1908 - Section
21 of CPC and Order 7 Rule 11 of CPC -
object and purpose - should be read
conjointly
and
not
separately
-
requirement - to raise objection at the
earliest before the framing of issue - raised
at a very belated stage during the
pendency of Revision. (Para12)

SCC Suit filed by the plaintiff-respondent for
eviction and arrears of rent - Petitionerdefendants not taken any objection under Order 7
Rule 11 CPC - Suit was decreed - Objection has
never been raised either before the Small Causes
Court or Revisional Court . (Para 7,13,)

Held:- Petitioner cannot be permitted to raise the
issue of raising objection of jurisdiction at the
belated stage. (Para-13)

Matters Under Article 227 dismissed.
(E-7)

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Vishal Khandelwal,
learned counsel for the petitioners.

2. By way of present petition,
petitioners are challenging impugned order
dated 09.12.2019 passed by 7th Additional
District & Sessions Judge, Agra in SCC
Revision No. 14 of 2017 (Kishan Singh Vs.
Shashi Jain).

3. Learned counsel for the petitioners
submitted that plaintiff-respondent has filed
SCC Suit No. 25 of 2011 against the petitioner
no. 1 claiming herself to be the owner and
landlord of Property No. 21/67 in which
petitioner is the tenant of one room (described
as Private Room No. 6) at the rent of Rs.
13.75/- per month besides taxes. It is alleged
that petitioner is not paying rent from 1.1.1996,
made material alteration and also sublet the
said room. Relief claimed by the plaintiffrespondent is for eviction and arrears of rent.
Petitioners-defendants have filed a detailed
written statement with regard to the averment
of plaint. Judge, Small Cause Court, Agra
allowed the suit vide judgment and decree
dated 30.03.2017 for eviction and payment of
rents. Against the judgment and order of Judge,
Small Cause Court, Agra dated 30.03.2017,
petitioners preferred SCC Revision No. 14 of
2017, which is still pending for final decision.

4. During the pendency of the
Revision,
petitioners
have
filed
Application- 67Ga under Order 7 Rule
11 read with Section 151 CPC on the
ground that disputed rented room has not
been sufficiently described in the Plaint
because of which it is not identifiable
and no site plan has been annexed along
with Plaint. It is also stated in the
application that mandatory provision of
Order 4 Rule 1, 2 & 3 of CPC have not
been complied with, therefore, Plaint is
liable to be rejected. Additional District
Judge, Court No. 7, Agra vide order
dated
09.12.2019,
rejected
the
application-67Ga of the petitioners. It
was rejected on the ground of merits as
well as on the ground that this objection
1434 INDIAN LAW REPORTS ALLAHABAD SERIES
has never been raised by the petitionerplaintiff in his written submission.

5. Learned counsel for the petitioners
assailed the order on the ground that
application under Order 7 Rule 11 of CPC
can be filed at any time and at any stage as
Order 7 Rule 11 of CPC does not provide
any time limit and stage of legal
proceeding. Order 7 Rule 11 of CPC
provides ground of rejection of Plaint and
it is required on the part of Court
concerned to consider the same first and
pass order even though it has not been
raised by the defendant. It is next
submitted that Section 21 of CPC provides
that objection has to be taken with regard
to jurisdiction at his first instance at the
earliest possible opportunity and in Order
7 Rule 11 of CPC, there is no restriction or
limitation, therefore, at any stage of legal
proceeding, defendant can take objection
and Court is bound to decide the same
irrespective of limitation or stage of
proceedings. It is also submitted that by
the perusal of Plaint itself, it is absolutely
clear that there is no disclosure or
description of property and further it was
in violation of Order 4 Rule 1, 2 & 3,
therefore, it is required on the part of
Court to reject the Plaint and allow the
application, but the application 67 G was
rejected, which is bad in the eye of law
and is liable to be set aside.

6. I have considered the submissions
made by learned counsel for the petitioners
and perused the records.

7. There is no dispute on the point
that when the suit was filed, the
petitioners-defendants have not taken any
objection under Order 7 Rule 11 of CPC.
The suit was decreed vide order dated
30.3.2017 and even at the time of filing of
revision, petitioners have not taken any
such objection which was available to
them, therefore, the issue is whether the
application filed under Order 7 Rule 11 of
CPC can be entertained at any stage of
proceedings and without considering any
limitation or not.

8. Order 7 Rule 11 of Civil
Procedure
Code,
1908
is
quoted
below:-

"11. 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 :

[144] [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 by the Court and that
refusal to extend such time would cause
grave injustice to the plaintiff.]"
2 All. Kishan Singh Vs. Shashi Jain & Anr.
1435

9. By the perusal of Order 7 Rule 11
of CPC, it is apparently clear that basic
purpose of Order 7 Rule 11 of CPC is to
raise
objection
at
the
earliest
for
immediate disposal of suit in case Plaint
has been filed contrary to provisions of
Order 7 Rule 11 of CPC otherwise there is
no need of Order 7 Rule 11 of CPC and it
may be left open for the defendant to raise
objection along with his written statement.

10.

Learned
counsel
for
the
petitioners has also relied upon Section 21
of C.P.C. The same is being quoted
hereinbelow:-

"21. Objections to jurisdiction- No
objection as to the place of suing shall be
allowed by any Appellate or Revisional Court
unless such objection was taken in the Court of
first
instance
at
the
earliest
possible
opportunity and in all cases where issues are
settled at or before such settlement, and unless
there has been a consequent failure of justice.

(2) No objection as to the
competence of a Court with reference to the
pecuniary limits of its jurisdiction shall be
allowed by any Appellate or Revisional Court
unless such objection was taken in the Court of
first
instance
at
the
earliest
possible
opportunity, and, in all cases where issues are
settled, at or before such settlement, and unless
there has been a consequent failure of justice.

(3) No objection as to the
competence of the executing Court with
reference to the local limits of its jurisdiction
shall be allowed by any Appellate or
Revisional Court unless such objection was
taken in the executing court at the earliest
possible opportunity, and unless there has been
a consequent failure of justice."

11. Certainly, Section 21 of CPC deals
with objection with regard to jurisdiction, but
in spirit it cannot be isolated only for
jurisdiction and principle of Section 21 of CPC
would also be applicable for filing of
application under Order 7 Rule 11 of CPC
meaning thereby at the earliest objection
should have been moved.

12. Section 21 of CPC and Order 7 Rule
11 of CPC should be read conjointly and not
separately. It is required on the part of
petitioners-defendants to raise objection at the
earliest before the framing of issue and there is
no dispute in the present matter that it has been
raised at a very belated stage during the
pendency of Revision, therefore, whatever
argument is raised by learned counsel for the
petitioners is not sustainable and allowing of
such application would frustrate the object and
purpose of Order 7 Rule 11 of CPC read with
Section 21 of CPC. Even if there is no
limitation prescribed, in the light of Section 21
of CPC, it is required on the part of petitioners
to raise objection at the earliest immediately
after receiving the Plaint and not at any stage
of litigation as it is filed in present case.

13. Similar position is also about
the violation of Order 4 Rule 1, 2 & 3
of CPC. This objection has never been
raised either before the Small Causes
Court or Revisional Court, therefore,
in light of finding given hereinabove,
petitioner cannot be permitted to raise
this issue at this belated stage.

14. So far as the factual position
of the plaint is concerned, there is
specific finding of the Revisional
Court that there is description of
property in dispute which was duly
accepted by the petitioners-defendants
in its written submission. Tenancy is
also accepted, therefore, that cannot
be interfered by this Court while
exercising
the
jurisdiction
under
Article 227 of Constitution of India.
1436 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Therefore, under such facts and
circumstances, petition lacks merit and is,
accordingly, dismissed. No order as to
costs.
----------
(2020)02ILR A1436

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2020

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Matters Under Article 227 No. 8511 of 2019

Rakesh Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri S. Sengar

Counsel for the Respondents:
A.G.A.

A. Code of criminal procedure, 1973 -
Section
125
Cr.P.C

-
Order
for
maintenance
of
wives,
children
and
parents - Section 421 Cr.P.C - Warrant
for levy of fine - Issuance of nonbailable warrant by Magistrate against
petitioner
for
not
complying
order
directing
to
pay
maintenance
to
respondent-wife and daughter - Validity -
no
jurisdiction
-

illegal
and
not
warranted by law - order of issuance of
non-bailable warrant, set aside. (Para
12,13,14)

Magistrate has issued warrant of arrest
straightway against person liable for payment
of maintenance allowance in event of nonpayment of maintenance allowance within time
fixed by court. (Para-13)

Held:- Magistrate has no jurisdiction to issue
warrant of arrest straightway against person
liable for payment of maintenance allowance in
event
of
non-payment
of
maintenance
allowance within time fixed by court without
first levying amount due as fine and without
making any attempt for realization that fine in
one or both modes for recovery of that fine as
provided for in clauses (a) or (b) of sub-
Section (1) of Section 421 of Act . (Para-13)

Matters Under Article 227 allowed. (E- 7)

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. At the time of filing of the present
petition, certified copy of the impugned
order has not been annexed along with the
present petition.

2. Today, a supplementary affidavit
has been filed on behalf of the petitioner
enclosing certified copy of the order
impugned. The same is taken on record.

3. Heard Mr. S. Sengar, learned
counsel for the petitioner and the learned
A.G.A. for the State as also perused the
material on record.

4. Learned counsel for the petitioner
and the learned A.G.A for the State agree
that the present petition may be disposed
of at this stage without calling for counter
affidavit in view of the order proposed to
be passed today.

5. Normally this Court would have
issued notice to opposite party no.2 to
contest the matter by filing counter
affidavit either by herself or through
counsel, but no purpose would be served
by keeping the application pending.
However, it shall be open for opposite
party
no.2
to
file
an
appropriate
application, if she feels so aggrieved.

6. The present criminal revision has
been filed to quash the judgment and order