Rajasthan High Court – Jodhpur
Puro Devi vs Dharma Ram (2026:Rj-Jd:12395) on 16 March, 2026
[2026:RJ-JD:12395]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 749/2026
1. Puro Devi W/o Thakra Ram, Aged About 38 Years, Ram
Nagar, Barmer City, Tehsil And District Barmer, Rajasthan
2. Thakra Ram S/o Khartha Ram, Aged About 40 Years, Ram
Nagar, Barmer City, Tehsil And District Barmer, Rajasthan
----Appellants
Versus
Dharma Ram S/o Hajri Ram, Chavaa, Tehsil Barmer Rural,
District Barmer, Rajasthan
----Respondent
For Appellant(s) : Mr. Sanjay Nahar
For Respondent(s) : Mr. R.K. Thanvi, Sr. Advocate assisted
by Mr. Narendra Thanvi &
Mr. Mahendra Thanvi
HON'BLE MR. JUSTICE MUKESH RAJPUROHIT
Judgment
16/03/2026
1. The present civil misc. appeal has been preferred by the
appellants-defendants aggrieved by the Judgment dated
12.12.2025 passed by the District Judge, Barmer in Civil Appeal
Decree No. 03/2025 (C.I.S. No. 11/2025) titled “Dharma Ram vs.
Puro Devi & Anr.” whereby first appeal preferred by the
respondent-plaintiff has been allowed and the order dated
18.08.2025 passed by the Additional Civil Judge No. 2, Barmer in
Civil Original Suit No. 59/2025 (C.I.S. No. Civil Suit/59/2025)
titled “Puro Devi & Anr. vs. Dharma Ram”, whereby the application
under Order VII Rule 11 of C.P.C. read with Section 41(h) of the
Specific Relief Act was allowed, has been set aside.
2. Heard learned counsel for the parties.
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3. Learned counsel for the appellants submits that the appellate
court below has failed to appreciate the settled position of law that
agreement to sale dated 28.05.2025, on the basis of which the
plaintiff has claimed possession, is an unregistered document,
though, it is compulsorily registrable under Section 17(f) & (g) of
the Registration Act, 1908 as amended by the Rajasthan
Amendment Act, 1989, where possession of the immovable
property is alleged to have been transferred. It is contended that
such an unregistered agreement to sale is inadmissible in
evidence and cannot be relied upon to claim protection of
possession by way of injunction.
4. According to learned counsel for the appellants, the proper
remedy available to the plaintiff was to institute a suit for specific
performance of the agreement, and not a suit for injunction
simpliciter. Learned counsel drawing attention of this Court to
Section 41(h) of the Specific Relief Act, 1963, contended that an
injunction cannot be granted when an equally efficacious remedy
is available to the plaintiff.
5. It is further contended that the trial court had rightly allowed
the application under Order VII Rule 11 of C.P.C. read with Section
41(h) of the Specific Relief Act and rejected the plaint. However,
the first appellate court has erred in setting aside the said order.
6. In support of his submissions, learned counsel for the
appellants has relied upon the following decisions:
(i) Balram Singh vs. Kelo Devi, 2022 INSC
1011;
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(ii) Vasava Lilaben D/o Kesurbhai & Anr. vs.
Bharatkumar Baldevbhai Desai, R/Civil
Revision Application No. 68/2019 decided
on 03.07.2025;
(iii) Priyanka Vivek Batra vs. Neeru Malik &
Ors., 2008 SCC OnLine Del 917
7. Per contra, learned counsel for the respondent while
supporting impugned judgment, submits that while considering an
application under Order VII Rule 11 of C.P.C., the Court is required
to examine only the averments contained in the plaint. It is
argued that the bar contained under Section 41(h) of the Specific
Relief Act relates to the grant of relief and does not render the
institution of the suit itself non-maintainable at the threshold. It is
submitted that whether the plaintiff is ultimately entitled to
injunction or not, is a matter to be adjudicated upon after trial.
8. In support of his submissions, learned counsel for the
respondent has relied upon the following decisions:
(i) Satwant Singh (deceased) through LR’s vs.
Ranjit Singh & Ors., 2023(4) Civil Court
Cases 473 (P&H);
(ii) Raj Kumar & Anr. vs. Alok Nanda, 2025(4)
Civil Court Cases 705 (Uttarakhand);
(iii) G. Nagaraj & Anr. vs. B.P. Mruthunjayanna
& Ors., 2023(2) Civil Court Cases 551 (SC);
(iv) Vinod Infra Developers Ltd. vs. Mahaveer
Lunia & Ors., 2025(3) DNJ (SC) 893;
(v) Jai Hind Buildcon & Anr. vs. Heeralal
Sharma & Ors., 2022(2) CJ (Civ.) (Raj.)
721;
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(vi) Gurdev Singh vs. Harvinder Singh, 2022(4)
Civil Court Cases 800 (SC);
(vii) Manoj Shah & Ors. vs. Suresh Kumar &
Anr., 2023(4) CJ (Civ.) (Raj.) 2143.
9. I have considered the submissions advanced by learned
counsel for the parties and perused the material available on
record.
10. It is well settled that while deciding an application under
Order VII Rule 11 of C.P.C., the Court is required to examine only
the averments made in the plaint and the documents relied upon
by the plaintiff. The defence raised by the defendants cannot be
taken into consideration at that stage. If on a meaningful reading
of the plaint, the suit appears to be maintainable, the plaint
cannot be rejected at the threshold.
11. In the present case, the respondent-plaintiff has pleaded
possession over the suit property and has sought protection of
such possession by way of permanent and mandatory injunction.
Whether the agreement to sell dated 28.05.2025 is compulsorily
registrable, whether it is admissible in evidence and whether the
plaintiff can ultimately claim protection of possession on the basis
of such document, are questions which require adjudication after
the parties lead evidence.
12. The contention of the appellants that the suit is liable to be
rejected under Order VII Rule 11 CPC on the ground that an
equally efficacious remedy is available under Section 41(h) of the
Specific Relief Act, is not sustainable at this stage, as the said
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issue can appropriately be considered only at the time of final
adjudication after completion of pleadings and evidence.
13. In Satwant Singh (deceased) through LR‘s (supra), the
Punjab & Haryana High Court observed as under :-
“5. It is trite that while deciding an application under Order VII
Rule 11 CPC only the averments of the plaint are to be seen. The
plaintiff-respondents have filed a suit for permanent injunction
specifically averring therein that they are in possession and have
sought an injunction restraining the defendant-petitioners from
dispossessing them from the suit property. It is further averred that
the development plan had been got approved and sanctioned qua
the land measuring 06 acres 07 kanals 03 marlas as per possession
taken, however, the area has fallen short by more than 01 acre,
which materially affected the development of the colony and the
entire project has been adversely affected. The argument of counsel
for the defendant-petitioners that the defendant-petitioners are in
possession and not the plaintiff-respondents, cannot be gone into at
this stage since there is a categoric averment in the plaint that the
plaintiff-respondents are in possession of the suit property. Further,
the argument that an alternate equally efficacious remedy is
available to the plaintiff-respondents also cannot be gone into at the
stage of deciding the application under Order VII Rule 11 CPC and
would be a matter of evidence. The third argument regarding the
reliance on an unregistered agreement to sell in the suit also cannot
be a ground for rejection of the plaint under Order VII Rule 11
CPC. Learned counsel for the petitioners has been unable to
convince this Court that there is any ground made out under Order
VII Rule 11 CPC for rejection of the plaint. No other argument has
been raised by the counsel for the defendant-petitioners.”
In Manoj Shah (supra), a coordinate Bench of this Court
has held as under :-
“4. In the specific opinion of this Court, so far as the issue of
constructive res judicata is concerned, even otherwise, in view of
latest judgment of Hon’ble Apex Court in Keshav Sood vs. Kirti
Pradeep Sood & Ors., Civil Appeal No. 5841/2023 (decided on
12.09.2023), the issue of res judicata is beyond the purview of
Order VII Rule 11, CPC and the same cannot be decided on an
application under Order VII Rule 11, CPC. Hence, the finding of the
Court below to that extent does not deserve any interference.
So far as the second ground of the suit being barred in terms of
Section 41(h) of the Act is concerned, the finding as given by the
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[2026:RJ-JD:12395] (6 of 7) [CMA-749/2026]does not bar maintainability of the suit. Section 41 of the Act of
1963 spells out the conditions when an injunction has to be refused.
Whether any decree for injunction can be granted in favour of the
plaintiff; whether the relief as prayed for by the plaintiff falls within
the purview of Section 41(h) of the Act of 1963; etc. are the
questions which can be decided only after adjudication. By all
means, it cannot be a ground for rejection of the plaint under Order
VII Rule 11, CPC.”
In Jai Hind Buildcon (supra), a coordinate Bench of this
Court at Jaipur Bench has held that objection with regard to bar of
granting the relief of injunction under Section 41(h) of the Specific
Relief Act cannot be examined at the stage of deciding the
application under Order VII Rule 11 of C.P.C.
14. So far as judgments relied upon by the learned counsel for
the appellants in Balram Singh (supra), Vasava Lilaben (supra) vs.
Bharatkumar Baldevbhai Desai and Priyanka Vivek Batra (supra)
are concerned, same were rendered in the context of final
adjudication of rights of the parties, where the courts were
examining the entitlement of the plaintiff to the relief of injunction
on the basis of an unregistered agreement to sell. Those decisions
do not lay down that a plaint seeking injunction on the basis of
such averments must necessarily be rejected at the threshold
under Order VII Rule 11 of C.P.C. without permitting the parties to
lead evidence. Hence, the said judgments are distinguishable on
facts and on the stage at which the issue was considered.
15. In the considered opinion of this Court, the first appellate
court below has, therefore, rightly held that the rejection of the
plaint by the trial court at the threshold was not justified and that
the issues raised by the defendants can appropriately be
examined during the course of trial.
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16. This Court finds no illegality or perversity in the judgment
dated 12.12.2025 passed by the District Judge, Barmer setting
aside the order of the trial court and directing restoration of the
suit for decision in accordance with law.
17. In view of the above, present appeal fails and is dismissed.
The judgment dated 12.12.2025 passed by the appellate court
below is affirmed.
18. Stay petition as well as all pending application(s), if any,
shall also stand disposed of accordingly.
(MUKESH RAJPUROHIT),J
23-/Inder//-
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