Suit can’t be dismissed merely for not approaching RERA, plaint must be returned: Rajasthan High Court

Jaipur: The Rajasthan High Court has held that a suit cannot be dismissed merely because a party did not first approach the Real Estate Regulatory Authority, ruling that where the objection goes only to the forum and not to the claim itself, the plaint must be returned under Order VII Rule 10 CPC rather than rejected under Order VII Rule 11 CPC.

A division bench of Justice Arun Monga and Justice Sandeep Taneja was hearing an appeal against a Commercial Court order that had rejected the appellant’s application seeking return of her plaint under Order VII Rule 10 CPC, while allowing the respondent’s application under Order VII Rule 11 CPC and dismissing the suit outright, on the objection that the dispute ought to have been raised before RERA, Jaipur.

The appellant had booked an apartment in Durgapura area of Tonk Road, Jaipur, for a total sale consideration of Rs 1.45 cr. The entire consideration was paid through banking channels and the applicable TDS was deposited with the Income Tax Department. Although the respondent furnished a draft Agreement for Sale, it was never signed or executed.

Despite receipt of the entire consideration, the respondent neither handed over possession nor executed the sale deed. Apprehending transfer of the apartment to a third party, the appellant filed a suit for specific performance and permanent injunction before the learned Commercial Court, which, by its order dated May 3, 2025, directed the parties to maintain status quo in respect of the apartment.

During the pendency of the suit, the respondent filed an application under Order VII Rule 11 CPC in which, apparently, the promoter/allottee relationship governed by the Real Estate (Regulation and Development) Act, 2016 stood acknowledged. The appellant thereupon moved an application under Order VII Rule 10 CPC seeking return of the plaint for presentation before the forum having jurisdiction under the RERA Act. However, by the impugned order dated Apr 10, 2026, the Commercial Court rejected the appellant’s application under Order VII Rule 10 CPC and allowed the respondent’s application, dismissing the suit under Order VII Rule 11 CPC. Hence the appeal.

The bench noted that notice to the respondent was unnecessary given the nature of the order proposed to be passed, since no prejudice would be caused to it, and observed that the respondent’s objection was only qua the maintainability of the suit on the ground of an alternative remedy under the RERA Act, that is, an objection to the forum, not to the existence of the appellant’s claim.

Drawing the line between the two provisions, the Court observed:

“Rejection of a plaint under Order VII Rule 11 CPC is warranted where the plaint itself discloses no cause of action or is otherwise barred, whereas where the grievance is real but lies before a different forum, the proper course under Order VII Rule 10 CPC is to return the plaint for presentation before that forum. Even if the respondent’s objection were upheld in full, it could sustain only the latter course, not the former.”

Holding that the Commercial Court had erred in rejecting the plaint outright, the bench remarked:

“In rejecting the plaint outright, the learned Commercial Court lost sight of this distinction and thus misdirected itself. The irregularity is not merely technical. An outright dismissal may risk foreclosure of the appellant’s remedy altogether viz. the alternative forum and/or respondent may raise the objection of prior dismissal as an adjudication of negating her claim, and it may also attract the trappings of Order II Rule 2 CPC. Return of the plaint, preserves the adjudication of claim for presentation before the competent forum, without any adverse implication on its merits.”

The impugned order was accordingly modified. Instead of dismissal of the suit, the Court held that the appellant would be entitled to return of her plaint, together with refund of the court fee deposited by her in accordance with law, with liberty to approach RERA, Jaipur. The respondent’s application under Order VII Rule 11 CPC was dismissed, and the appellant’s application under Order VII Rule 10 CPC was allowed. The appeal, along with all pending applications, stood disposed of accordingly.

Title: Churchika Gupta v. F. S. Housing Pvt. Ltd.

Case No.: D.B. Civil Miscellaneous Appeal No. 2577/2026

Citation: 2026:RJ-JP:24687-DB

Counsel for appellant: Ms. Pallavi Mehta

Counsel for respondent: None appeared (notice dispensed with)