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2006 DIGILAW 360 (AP)

K. Sarangapani v. Annamaneni Kishan Rao

2006-03-13

P.S.NARAYANA

body2006
( 1 ) HEARD the Counsel on record. ( 2 ) SRI Veera Reddy, the learned Counsel representing the revision petitioner would maintain that though the application was filed under Section 11 read with Section 151 of the code of Civil Procedure (here-in-after, in short, referred to as code for the purpose of convenience) praying the Court to dismiss the suit, virtually the application is one filed under Order VII Rule 11 (d) of the Code. The learned counsel would maintain that the bar of res judicata is specifically raised and in view of the fact that the plaint in the prior suit o. S. No. 1769/2003 on the file of Principal junior Civil Judge, Warangal was marked as ex. A-1, the affidavit of the plaintiff therein as ex. A-2, the judgment as Ex. A-4 and the decree as Ex. A-5 and also the notice issued as Ex. A-3, this would clearly establish that the prior suit also was in reiaiion to the same subject matter and the same question was put into issue. The Counsel also would maintain that the party in fact entered appearance and subsequent thereto he suffered an ex pane decree and that would not alter the situation in any way for the applicability of the doctrine of res judicata. The learned counsel placed strong reliance on R. Govindaswamy v. Kasthuri Amma and Radha Mohan v. Eliza Jane Hilp. ( 3 ) PER contra, Sri Venkateshwar Reddy, the learned counsel representing the respondent would maintain that this is not a case where on reading the averments made in the plaint, it can be said that the doctrine of res judicata would be attracted. Even otherwise, the learned Counsel would maintain that in the written statement filed also this defence was not specifically taken nor an issue was settled in this regard. At a belated stage this application was thought of only to further delay the matter. At any rate, the learned Counsel would maintain that the relief prayed for in the prior suit and the present suit being different, the question of applicability of res judicata would not arise. At a belated stage this application was thought of only to further delay the matter. At any rate, the learned Counsel would maintain that the relief prayed for in the prior suit and the present suit being different, the question of applicability of res judicata would not arise. While concluding, the learned counsel would maintain that this question of applicability or otherwise of res judicata may have to be gone into at the appropriate stage after looking into the respective pleadings of the parties and the other aspects and hence the plaint cannot be rejected at the threshold. Even otherwise since substantial portion of the evidence already had been let in, it may not be appropriate to interfere with the further proceedings at this stage. ( 4 ) THE application I. A. No. 707/2005 in o. S. No. 256/2003 on the file of I Additional senior Civil Judge, Warangal was moved by the present revision petitioner-the defendant in the suit under Section 11 read with section 151 of the Code. The specific stand taken by the petitioner is that he filed O. S. No. 1769/2003 on the file of II Additional junior Civil Judge, Warangal against the plaintiff in the present suit as defendant praying for the relief of permanent injunction pleading fraud, threat, mischief and wrongful gain played by him and obtaining the promissory notes forcibly. He had not chosen to contest the matter and ultimately an ex parte decree was passed. The respondent herein, the plaintiff in the suit, had taken specific stand in the counter that with a view to prolong the matter this application was thought of. Specific stand also was taken that the prior suit was for the relief of permanent injunction and the present suit is for recovery of amount and there is no similarity between both the suits. The relief prayed for in the prior suit is totally different from the relief prayed for in the present suit. Ex. A-1 is a certified copy of the plaint in O. S. No. 1769/2003 on the file of Principal Junior Civil judge, Warangal; Ex. A-2 is a certified copy of the affidavit of the plaintiff in O. S. No. 1769/2003; ex. A-3 is a certified copy of the legal notice dated 10-10-2003; Ex. A-4 and Ex. A-5 are certified copies of the judgment and decree in the aforesaid suit dated 7-7-2004 which were marked. A-2 is a certified copy of the affidavit of the plaintiff in O. S. No. 1769/2003; ex. A-3 is a certified copy of the legal notice dated 10-10-2003; Ex. A-4 and Ex. A-5 are certified copies of the judgment and decree in the aforesaid suit dated 7-7-2004 which were marked. ( 5 ) THERE cannot be any doubt or controversy relating to the prior judicial proceedings. It is also not in serious controversy that this plea of applicability of doctrine of res judicata was not specifically put forth in the written statement. Be that as it may, it being a question of law, the party thought it appropriate to raise this question. As rightly contended by the learned counsel representing the petitioner that this application may have to be treated as one under order VII Rule 11 (d) of the Code. Order VII rule 11 (d) of the Code specifies that the plaint shall be rejected in the following cases: where the suit appears from the statement in the plaint to be barred by any law. The words "statement in the plaint to be barred by any law" would assume some importance. It is needless to say that at least defence was not put forth by the petitioner as defendant in the suit, this Court is not inclined to express any opinion relating to the dissimilarity or otherwise of the reliefs prayed for in the prior suit and the present suit and the other aspects. Strong reliance was placed on r. Govindaswamy s case (cited 1 supra) and radha Mohan s case (cited 2nd supra) most probably to substantiate the contention that even an exparte decree between the parties would operate as resjudicata. This is not the stage to decide this question. The said question is left open to be agitated at the appropriate stage. Giving the aforesaid liberty, in the light of the clear language of Order VII rule 11 (d) of the Code referred to supra, this court is well satisfied that inasmuch as the impugned order does not suffer from any illegality, whatsoever, the C. R. P. is bound to fail and accordingly the same shall stand dismissed. No costs.