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2009 DIGILAW 415 (ORI)

L. NARAYANA MURTY v. M. VENKATA RAMANA RAO

2009-05-14

A.S.NAIDU

body2009
JUDGMENT : A.S. Naidu, J. - Defendant Nos. 1 & 2 in Title Suit No. 23 of 1988 of the Court of Learned Civil Judge (Senior Division), Rayagada, have filed this revision assailing the Order Dated January 3, 2009 passed by the said Court rejecting the petition filed under Order 7, Rule 11 of the Code of Civil Procedure, in short, 'Code' & refusing to reject the suit as not maintainable. 2. Opp. Party No. 1, as Plaintiff, had filed the aforesaid suit with a prayer for declaration that he has undivided & half interest in the suit land & the sale deeds executed in favour of the present Petitioners, who are Defendant Nos. 1 & 2 in the Court below by his father would not affect his right, title & interest over the suit property. After receiving notice & in the midst of hearing, Defendants 1 & filed a petition under Order 7, Rule 11 of the CPC with a prayer to reject the plaint on the ground that the same was hit by the principles of res judicata. According to the Defendants, the Plaintiff had challenged the sale deeds said to have been executed in the year 1976 in T.S.No.4 of 1981 through his sister, who claimed to be his legal guardian & the said suit was dismissed. Thus, the present suit for the self-same relief was not maintainable. It is further stated that even liberty granted to file a fresh suit under Order 23, Rule 1, C.P.C. cannot save the limitation & thus, the suit was also grossly barred by time. The said petition was resisted by the Plaintiff by filing objection. According to the Plaintiff, the suit was maintainable & is within time. That apart, it is stated that the said controversy can be answered in the suit itself & the plaint should not be rejected at the threshold. 3. The said petition was resisted by the Plaintiff by filing objection. According to the Plaintiff, the suit was maintainable & is within time. That apart, it is stated that the said controversy can be answered in the suit itself & the plaint should not be rejected at the threshold. 3. The Trial Court went through the pleadings & after analyzing the same as well as after hearing Learned Counsel for the parties, came to the conclusion that it is not a fit case where it can be said that the Plaintiff had no right to file the suit afresh, particularly, when he had neither filed nor withdrawn the suit & if any wrong had been committed, the same having not been done by the present Plaintiff cannot be allowed to suffer or be deprived of his rights to file a fresh suit. Consequently, the petition filed under Order 7, Rule 11 of the Cope was rejected & the suit was directed to be heard on merits. Being aggrieved, Defendants 1 & 2 have approached this Court. 4. Mr. Dash, Learned Counsel appearing for the Petitioners submitted, rather forcefully, that the Trial Court without following the directions issued by this Court in W.P.(C) No. 10199 of 2007 & without rejecting the plaint under Order 7, Rule 11 of the Code acted illegally in holding that the suit was maintainable. It appears that the Petitioners had approached this Court earlier alleging non-disposal of a petition said to have been filed by them under Order 7, Rule 11 of the Code. The said Writ Petition was registered as W.P.(C) No. 10199 of 2007 & was disposed of by Order Dated 5truNovember, 2007. This Court directed the Trial Court to dispose of the petition filed by the Petitioners under Order 7, Rule 11 of the Code on its own merits. This Court further directed that as the suit is of the year 1988, the same should be disposed of expeditiously preferably within a period of 3 months. Strictly in consonance with such direction, the Trial Court heard the petition filed under Order 7, Rule 11 of the Code & by a well discussed order, rejected the petition & the said order is impugned in this Civil Revision. 5. Strictly in consonance with such direction, the Trial Court heard the petition filed under Order 7, Rule 11 of the Code & by a well discussed order, rejected the petition & the said order is impugned in this Civil Revision. 5. According to the Petitioners, as the suit was filed on behalf of the Plaintiff praying for almost identical reliefs & the said suit was dismissed, the subsequent suit filed by the Plaintiff is hit by the principle of res judicata. Admittedly, the suit was earlier filed, which was registered as T.S. No. 4 of 1981 by the sister guardian of the Plaintiff. Further, admittedly in the year 1981 the Plaintiff was minor. The said suit, which was filed in the Court of the then Subordinate Judge, Rayagada & was subsequently withdrawn. From the factual scenario, it appears that on the date when the suit was withdrawn, the Plaintiff had become major. Thus, the Trial Court came to the conclusion that withdrawal of the suit by the sister guardian was not justified. It appears, after the Plaintiff became major, he filed the suit, which is now pending. 6. After going through the impugned order, it is apparent that the Learned Civil Judge (Senior Division), Rayagada has discussed the facts in extenso, as such, the submissions made by Mr.Dash that the Learned Civil Judge (Senior Division), Rayagada had not followed the direction issued by this Court in the Writ Petition appears to be not correct. In fact, as per the direction of this Court, the Court below has heard the parties, considered all facts & disposed of the petition filed by the Defendants under Order 7, Rule 11 of the Code. Thus, this Court finds no infirmity or illegality in the same. The Trial Court has prima facie arrived at a conclusion that disposal of the earlier suit would not ipso facto stand as res judicata so far as the present suit is concerned & for deciding such an issue, the suit has to be heard on merits. That apart, law is well settled that there cannot be a piecemeal trial specially when for arriving at a conclusion as to whether the suit is hit by the principle of res judicata, or not evidence either oral or documentary has to be referred. That apart, law is well settled that there cannot be a piecemeal trial specially when for arriving at a conclusion as to whether the suit is hit by the principle of res judicata, or not evidence either oral or documentary has to be referred. It can safely be said that where in a suit on undisputed facts, a controversial question of law arises or two views are possible on the interpretation of law involved therein, the plaint cannot be rejected under Order 7, Rule 11 of the Code. Order 7, Rule 11 of the Code is attracted only when on the admitted facts as appearing from the plaint, the suit is prima facie barred. The question whether the relief sought for is hit by the principles of res judicata or not could not be decided merely on perusal of the plaint as it stood. For deciding such a fact certain materials are necessarily to be interpreted & for the said purpose evidence has to be laid. Thus, rejection of. the plaint in limine could hot be proper. It would be more prudent to decide the said issue in the suit itself without rejecting the plaint at the threshold. In view of the aforesaid clear position & as this Court finds no infirmity or illegality in the impugned order, the Civil Revision is dismissed.