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2009 DIGILAW 688 (MAD)

Francis Koil Raj v. Mangalam Karunakaran

2009-03-06

G.RAJASURIA

body2009
Judgment Animadverting upon the order dated 010. 2007 passed by the learned VI Additional Judge, City Civil Court, Chennai in I.A.No.12455 of 2007 in O.S.No.504 of 2001, the defendant has preferred this civil revision petition. 2. Niggard and bereft of details, pithily and precisely, the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision would run thus: The respondent/plaintiff herein filed the suit O.S.No.504 of 2001 seeking the following relief: - for partition and separation of possession of the plaintiffs ½ share in the house, ground and premises bearing Municipal New Door No.7, Old No.8, Bishop Wallers Avenue(East) Mylapore, Chennai 600 004 fully described in the schedule. The revision petitioner/defendant filed the written statement; whereupon the trial commenced; PW1 was examined and cross-examined also. At that juncture, the defendant has filed the I.A.No.12455 of 2007 under Order VII Rule 11 of the Code of Civil Procedure for rejecting the plaint in view of the previous judgment in C.S.No.561 of 2001 passed by this Court in his favour. However, the lower Court dismissed the I.A. Being disconcerted and aggrieved by the order of the lower Court, this revision petition is focussed on various grounds inter alia thus: The lower court failed to exercise its jurisdiction but, it simply dismissed the I.A.No.12455 of 2007 filed by the revision petitioner; in the previous suit C.S.No.561 of 2001, this Court decreed the suit in favour of the revision petitioner and as against the respondent/plaintiff herein. As such, the present suit is nothing but an abuse of process of the court. 3. Despite printing the names of the persons concerned, none appeared. 4. As such, the present suit is nothing but an abuse of process of the court. 3. Despite printing the names of the persons concerned, none appeared. 4. A plain poring over and perusal of the typed set of papers including the order of the lower Court would display and evince that the earlier suit C.S.No.561 of 2001 was for the following prayer: - permanent injunction restraining defendants, their men, agents, representatives, servants or any person claiming through them or acting on their behalf from interfering in any manner with the plaintiffs peaceful possession and enjoyment of the suit property at New No.9, Old No.8, Bishop Wallers Avenue (East) Mylapore, Chennai-4 more specifically described in the schedule herein, by the plaintiff and permanent injunction restraining defendants, their men, agents, representatives, servants or any person claiming through them or action on their behalf from erecting any structure or name board or any construction or super structure at the suit property at New No.9, Old No.8, Bishop Wallers Avenue (East) Mylapore, Chennai-4 more specifically described in the schedule herein, by the plaintiff. As such, it is clear that the previous suit is for injunction. However, the present suit is for obtaining the following relief : for partition and separation of possession of the plaintiffs ½ share in the house, ground and premises bearing Municipal New Door No.7, Old No.8, Bishop Wallers Avenue(East) Mylapore, Chennai 600 004 fully described in the schedule. The lower court in its order found fault with the revision petitioner that he did not take ample interest in prosecuting the said I.A and without going into the allegations/averments relating to the merits of the revision petitioners case, the Court dismissed the I.A. In the revision at para No.5, the revision petitioner himself stated that the plea of res judicata is applicable. 5. It is a common or garden principle of law that the plea of res judicata has to be proved by the person, who is pressing into service that plea. The issues framed and the adjudication thereon should be considered and see as to whether in the subsequent suit, the issues involved are substantially the same and for that purpose, the defendant should have prayed the court to frame necessary issue relating to res judicata and it got to be decided on merits. The issues framed and the adjudication thereon should be considered and see as to whether in the subsequent suit, the issues involved are substantially the same and for that purpose, the defendant should have prayed the court to frame necessary issue relating to res judicata and it got to be decided on merits. However, invoking Order VII Rule 11 of the Code of Civil Procedure, in my considered opinion, was not a proper course. The lower court also has not in any way expressed its opinion that the plea of res judicata is not applicable to this case. It is for the revision petitioner to highlight the necessary facts as per Section 11 of the Code of Civil Procedure under the issue relating to res judicata and get an adjudication thereon. 6. Hence, I am of the considered opinion that no interference with the order of the lower court is required. However, I make it clear that, it is open for the revision petitioner to press for framing an issue relating to res judicata, if not, already framed and under that issue, it is for the revision petitioner to put forth all his pleas and demonstrate as to how the said plea is applicable and the present suit is not maintainable. 7. Accordingly, I could see no merit in this revision and the same is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.