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2006 DIGILAW 150 (GAU)

Himangshu Dutta v. Md. Kala Mia

2006-02-13

A.B.PAL

body2006
JUDGMENT A.B. Pal, J. 1. By means of this revision petition under Section 115 of the Civil Procedure Code (for short, 'the 'Code'), the petitioner herein has called in question the legality and the correctness of the Order dated 18.9.1999 passed by the learned Civil Judge, Jr. Division, No. 1, West Tripura, Agartala in T.S. No. 36 of 1999 whereby the application under Order VII, Rule 11 of the Code preferred by the defendant-petitioner herein praying for rejection of the plaint in the said suit instituted by the respondent herein has been rejected. 2. A land dispute between the parties has culminated into the present proceeding which was preceded by another T.S. No. 28 of 75 filed by the respondent herein. The said suit was filed for declaration of title, confirmation of possession and consequential relief in the form of permanent injunction against the petitioner herein. Learned Addl. Munsiff Agartala, West Tripura finally adjudicated that suit (TS 28/75) by dismissing the same. In the second suit (TS 36/99) between the same parties in which the Order impugned herein has been passed, the petitioner herein who was arrayed as defendant in that suit, filed an application under Order VII, Rule 11 of the Code praying for rejection of the plaint on two grounds, namely, (i) the prayer of the plaintiff is vague and uncertain ; (ii) the present suit is barred by principles of res judicata under Section 11 of the Code as the facts directly and substantially in issue in the present suit were also directly and substantially in issue in the former suit (TS 28/75) between the same parties. Learned trial court while deciding the first question held that though the prayer portion of the plaintiff was not very much clear but on a closer reading of the pleadings and the prayer, it would be very clear that the prayer of the plaintiff was for declaration of his right, title and interest over the land just contiguous west of the homestead land of the petitioner herein with the prayer for permanent injunction to restrain him and his tenants from using the said land of the plaintiff-respondent herein. As regards the second point on the question of res judicata, the learned trial court held that it was a mixed question of fact and law and, therefore, without taking proper evidence no opinion could be formed for finally deciding the same. As regards the second point on the question of res judicata, the learned trial court held that it was a mixed question of fact and law and, therefore, without taking proper evidence no opinion could be formed for finally deciding the same. Under such circumstances, the learned trial court, after making the above observation, rejected the prayer for rejection of the plaint which has been impugned herein. 3. I have heard Mr. A. K. Bhowmik, learned senior counsel assisted by Mr. S. Ghosh, learned Counsel for the petitioner and Mr. R.B. Sinha, learned Counsel for the respondent. 4. It is the submission of Mr. Bhowmik, learned senior counsel for the petitioner herein that in the application under Order VII, Rule 11 of the Code, it was brought to the notice of the learned trial court in para 4 thereof that the issues, statements and allegations made in the plaint were earlier made by the plaintiff-respondent in TS 28/75 in respect of the same land and the said suit having been dismissed, the present suit was barred by the principles of res judicata. Again, in the objection filed by the plaintiff-respondent herein against the application of the defendant-petitioner for rejection of the plaint it has been clearly stated in para 5 that the earlier suit between the parties was disposed of on 13.3.1995 with a conclusion in para 7 of the judgment that the 'C' schedule land of the plaint was the land in possession of the plaintiff-respondent herein after the 'B' schedule land thereof was sold to the petitioner herein. Thus, the dispute relating to the land having been decided in the earlier suit, the learned trial court should have rejected the plaint at the very threshold. In support of this submission, Mr. Bhowmik has placed reliance on the decision of the Supreme Court in T. Arivandandam v..T.V. Satyapal reported in [1978] 1 SCR 742 commenting on the exercise of the power of the Court under Order VII, Rule 11 of the Code. The Apex Court observed that bogus litigation should be shot down at the earlier stage. Para 6 of the said judgment reads as follows: 6. The trial court in this case will remind itself of Section 35A CPC and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless... 5. Mr. The Apex Court observed that bogus litigation should be shot down at the earlier stage. Para 6 of the said judgment reads as follows: 6. The trial court in this case will remind itself of Section 35A CPC and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless... 5. Mr. R. B. Sinha, learned Counsel for the respondent herein has assailed the present revision petition from a different angle altogether. It is strenuously argued that the petitioner herein being defendant in the suit was not permitted to raise the question of res judicata before filing written statement. It was, thus, not the stage to raise such a question before the learned trial court and on this ground alone, the learned trial court has correctly rejected the application for rejection of the plaint. In support of this submission, Mr. Sinha has placed reliance on two decisions of the Bombay and Rajasthan High Courts. In the first case between Nishit M. Prabhu Verlekar v. Chandranath Vinayak Dhume reported in AIR 1986 Bom 46, none of the defendants filed their written statements though some of them raised an objection to the maintainability of the suit on the ground that the notice under Section 281A of the Income Tax Act was not issued in accordance with law. The learned trial court rejected the plaint after accepting the objection. Setting aside the said Order and restoring the suit on the file of the learned trial court it was observed as follows: Once the summonses are served on the defendants all that is required of them is to file their written statements and there is no provision whatsoever in the Code which provides that a defendant can raise any objection to the maintainability of the suit by any application before filing his defence. From this it is clear to us that the learned Judge did, not exercise his powers mentioned under Order VII, Rule 11, but acted on the application dated 18.10.1983 of the defendants. From this it is clear to us that the learned Judge did, not exercise his powers mentioned under Order VII, Rule 11, but acted on the application dated 18.10.1983 of the defendants. In the second case between Ranjeet Mai v. Poonam Chand reported in it was observed as follows : At the stage of deciding the question as to whether the plaint should be rejected under Clause (a) of Order VII, Rule 11 CPC the Court is required to find out from the pleadings of the plaintiff as to whether any cause of action was disclosed from the allegations contained in the plaint. If a legal question is raised by the defendant in his written statement disputing the claim of the plaintiff and if the same is to be decided at that stage, then it would be prejudging the matter, which should form the subject-matter of an issue, as a proposition of law asserted by one party and denied by the other. It has further been held by the said High Court in para 4 the relevant portion of which is quoted below: All legal questions raised by either party and denied by the other should be made subject-matter of issues. It may be that the legal issues may be tried by the Court before proceeding with the trial of issues, in respect of which evidence was to be recorded. But at the initial stage of deciding as to whether the suit should be rejected under any one of the Clauses of Order VII, Rule 11CPC or not, it does hot appear to be the intention of the law makers that the questions as to whether 'actually' according to law the suit was maintainable or not should be decided at that stage. Such questions should be decided after thorough consideration of legal issues involved in the case. 6. The pleadings and the rival submissions of the parties set out, thus, the question that has fallen for consideration is whether the learned trial court has correctly decided that the question of res judicata could not be decided at a stage before filing of written statement or taking of evidence as the same involves the questions of facts as well as law. Order VII, Rule 11 under which the application for rejection was made by the petitioner herein provides as follows: Order VII, Rule 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 written 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; (e) where it is not filed in duplicate ; (f) where the plaintiff fails to comply with the provisions of Rule 9 ; Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers 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 from correcting the valuation or supplying the requisite stamp papers, 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. It is not the case of the petitioner herein that the plaint did not disclose a cause of action. The question of vagueness about the prayer in the plaint has been correctly answered by the trial court as recorded above. No other circumstance appearing in Rule 11 is present for rejection of the plaint on the ground of res judicata and I am in full agreement with the findings of the learned trial court that the question being one of fact and law it would not be appropriate to decide the same without taking into consideration the evidence of the respective parties. Thus, the question of maintainability of the suit invoking the principles of res judicata cannot be decided at the initial stage of the proceeding before submission of the written statement and taking of the evidence as such question involves disputed facts and law. 7. Thus, the question of maintainability of the suit invoking the principles of res judicata cannot be decided at the initial stage of the proceeding before submission of the written statement and taking of the evidence as such question involves disputed facts and law. 7. For the reasons and discussions made above, I find no reason to interfere with the impugned judgment and consequently this revision petition being devoid of any merit is hereby dismissed leaving the parties to bear their own cost. Appeal dismissed