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2009 DIGILAW 2161 (RAJ)

Madan Mohan v. Ramesh Chand

2009-10-15

G.K.TIWARI

body2009
TIWARI, M.—This is a revision petition under Section 230 of the Rajasthan Tenancy Act, 1955 against the impugned judgment dated 23.1.06 of Revenue Appellate Authority Sawai Madhopur passed in appeal No. 76/03. 2. Briefly stated, the facts of the case are that during pendency of a revenue suit between the rival parties in the court of Assistant Collector Sawai Madhopur, the petitioner-defendant filed an application under Section 12 and Order 7 Rule 11 of the Civil Procedure Code (C.P.C.) to dismiss the suit being barred by law. This application was allowed by the trial Court by its judgment dated 8.5.03 aggrieved against which an appeal under Section 225 of the Act was preferred before Revenue Appellate Authority Sawai Madhopur who accepted the appeal and remanded the case to the trial Court for re-decision on merits giving opportunity of hearing and evidence to both the parties by its judgment dated 23.1.06 aggrieved against which the instant revision is filed in this Court. 3. I have heard the learned counsels of both the parties. 4. The learned counsel for the petitioner has contended that the plaintiff-respondent had earlier filed a same suit with regard to the same disputed khasra numbers before Sub-Divisional Officer Sawai Madhopur, which was dismissed in default under Order 9 Rule 8 of the C.P.C. Although the respondent-plaintiff was debarred from filing another fresh suit under Section 12 and Order 9 Rule 9 of the C.P.C. yet another suit was filed by the plaintiff-respondent with regard to the same disputed land. The learned counsel cited 1993 RRD 575 in support of his contention that this bar is absolute. Thus, there was nothing wrong in the judgment of trial Court who dismissed the suit as barred by law under Order 7 Rule 11 of the CPC. But Revenue Appellate Authority committed illegality in setting aside the judgment of Sub-Divisional Officer. Revenue Appellate Authority has allowed the appeal on the assumption that the principle of res-judicata was not applicable in case of a suit dismissed in default. But this is not a matter of res-judicata but bar of filing a fresh suit when earlier suit is dismissed under Order 9 Rule 8 of the C.P.C. The learned counsel prayed for quashing of the judgment of Revenue Appellate Authority. 5. But this is not a matter of res-judicata but bar of filing a fresh suit when earlier suit is dismissed under Order 9 Rule 8 of the C.P.C. The learned counsel prayed for quashing of the judgment of Revenue Appellate Authority. 5. Opposing the contentions of petitioner, the learned counsel for the non-petitioner No. 1 pleaded that the alleged former suit was not dismissed under Order 9 Rule 8 of the C.P.C. but under Order 9 Rule 3 of the C.P.C. as is clear from the order sheet dated 9.11.1983 of the old suit No. 94/78/276/83. It was contended that on the date of hearing i.e. 9.11.1983 both the parties were absent, so provisions of Order 9 Rule 8 of the C.P.C. and Order 9 Rule 9 of the C.P.C. are not applicable in this case. It was also contended that a suit can be dismissed being barred by law under Order 7 Rule 11 (D) of the C.P.C. when the suit appears from the statement in the plaint to be barred by any law. In the instant case there is nothing stated in the plaint which makes the suit barred by any law. It is further argued that the earlier suit was not decided on merits and even parties to the earlier suit were different. So the plaint cannot be rejected under Order 7 Rule 11 of the CPC. As such there is nothing illegal in the impugned judgment of Revenue Appellate Authority. 6. I have given thoughtful consideration to the rival contentions, perused the impugned judgment and gone through the record available on the file. 7. The moot point to be resolved in the case under consideration is whether the earlier suit filed by the respondent-plaintiff before Sub-Divisional Officer Sawai Madhopur was dismissed under Order 9 Rule 8 of the CPC as claimed by the petitioner, or under Order 9 Rule 3 of the C.P.C. as contended by the non-petitioner. A perusal of the order sheet dated 9.11.1983 of the old suit No. 94/78/276/83 shows that neither party to the suit was present on the date of hearing. The absence of plaintiff and his advocate is explicitly written but the presence of defendant is not written or marked either. This shows that the defendant was also present otherwise his presence would have been written. The absence of plaintiff and his advocate is explicitly written but the presence of defendant is not written or marked either. This shows that the defendant was also present otherwise his presence would have been written. In such a situation the suit would be considered to be dismissed under Order 9 Rule 3 of the CPC and not under Order 9 Rule 8 of the CPC. As such provision of Order 9 Rule of the CPC is not applicable in the instant case meaning, thereby, that the ruling cited by the petitioner in respect of Order 9 Rule 9 of the CPC is also not applicable here. 8. A plaint can be dismissed under Order 7 Rule 11 of the C.P.C., interalia, where it does not disclose a cause of action or where a suit appears from the statement in the plaint to be barred by any law. Perusal of the plaint shows that it does reveal a cause of action. Besides it, there is no statement in the plaint which shows that it is barred by law. The plea of the petitioner that the earlier suit between the same parties with regard to the same disputed land was dismissed in default and as such a new suit is barred under Order 7 Rule 11 of the CPC, is untenable. Firstly perusal of the copy of the plaint of the earlier suit No. 276/83 shows that the defendants in the former suit and the present suit are not just the same. Besides, it the suit was not dismissed on merits but in default of both the parties. So the bar of Order 7 Rule 11 of the C.P.C. does not apply here. 9. It is worthwhile to mention here that whatever objections the petitioner-defendant wants to raise, he can do so through his averment in the written statement on the basis of which suitable issues can be framed, evidence led and dispute decided on merits. The suit under consideration cannot be dismissed on the basis of being barred by law under Order 7 Rule 11 of the CPC as discussed above. 10. In view of the foregoing discussion, there is no substance in the revision. The Revenue Appellate Authority Sawai Madhopur has neither committed any jurisdiction error nor any illegality nor any material irregularity in passing the impugned judgment which does not warrant any interference in revision. 11. 10. In view of the foregoing discussion, there is no substance in the revision. The Revenue Appellate Authority Sawai Madhopur has neither committed any jurisdiction error nor any illegality nor any material irregularity in passing the impugned judgment which does not warrant any interference in revision. 11. Resultantly the revision is dismissed. Pronounced.