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2013 DIGILAW 1315 (PNJ)

Gurmail Singh v. Kulwant Singh

2013-09-27

PARAMJEET SINGH

body2013
JUDGMENT Mr. Paramjeet Singh, J. (Oral):- Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the orders dated 22.07.2013 (Annexure P/9 & P/10) passed by learned Additional Civil Judge (Senior Division) Sangrur whereby application moved by the petitioners under Order 11 Rules 14 and 15 read with Section 30 CPC has been disposed of and application of the petitioners under Order 7 Rule 11 CPC has been dismissed. 2. Heard. 3. Learned counsel for the petitioners contends that respondent no.1-plaintiff filed a suit against the petitioners and others for possession by way of specific performance on the basis of agreement to sell dated 08.05.1982 and subsequent writing dated 12.05.1985 with regard to certain land mentioned in the headnote of the plaint. During the pendency of the suit, firstly, the petitioner preferred an application under Order 11 Rules 14 and 15 read with Section 30 CPC for production of power of attorney on the basis of which alleged agreement to sell and the aforementioned writing has been executed. Respondent no.1-plaintiff and respondent no.3-defendant no.2 did not produce the document before the trial Court. Vide order dated 22.07.2013 (Annexure P/9), the trial Court has disposed of the application holding that since defendant no.2 and plaintiff have denied possession of the documents, the petitioners would be at liberty to raise objection at the appropriate stage that adverse inference be drawn against the plaintiff. Learned counsel for the petitioner half heartedly states that the petitioners are not aggrieved against this order. Otherwise, they have legal right to claim adverse inference against the plaintiff. Learned counsel further contended that so far as the second application under Order 7 Rule 11 CPC is concerned, this was only in pursuance of the application under Order 11 Rules 14 and 15 read with Section 30 CPC as respondent no.1-plaintiff and respondent no.3- defendant no.2 had failed to produce the documents. 4. I have considered the contentions raised by the learned counsel for the petitioners and perused the record. 5. Admitted, the petitioners had filed earlier application under Order 7 Rule 11 CPC for dismissal of the suit on the ground that suit is barred by limitation. The same was dismissed on 07.08.2012 by the learned trial Court. This is the second application. 5. Admitted, the petitioners had filed earlier application under Order 7 Rule 11 CPC for dismissal of the suit on the ground that suit is barred by limitation. The same was dismissed on 07.08.2012 by the learned trial Court. This is the second application. The learned trial Court has observed that the earlier application under Order 7 Rule 11 CPC was dismissed, so the present application filed for same relief by moulding the averments cannot be accepted and has dismissed the same. 6. Learned counsel for the petitioners vehemently contended that when the agreement to sell and the writing were not produced in pursuance of the specific application moved by the petitioners, then the petitioners have a right to file the second application for rejection of the suit on the ground that once the relevant documents are not available, the suit cannot be filed. 7. This contention of the learned counsel for the petitioners appears to be correct but looking into the legal position, the same is not sustainable for the reason that the petitioners had earlier moved an application under Order 7 Rule 11 CPC, which was dismissed. The principle of res judicata is applicable to the second application. When the petitioners have already moved application for the same relief which was dismissed, then he cannot claim the same very relief twice. In Y.B. Patil and others vs. Y.L. Patil, AIR 1977 Supreme Court, 392, the Hon’ble Supreme Court has held that principle of res-judicata can be invoked not only in separate subsequent proceedings; it also gets attracted at subsequent stage in the same proceedings. Once an order made by the court at earlier stage a proceeding becomes final, it would be binding for another application for same relief at the subsequent stage of that proceeding. The Division Bench of Hon’ble Allahabad High Court in Smt. Rakesh Bala Aneja vs. Smt. Sushil Bajaj and others, 2013(6) RCR (Civil) 2631 has held that principle of res-judicata is applicable to application under Order 7 Rule 11 CPC. 8. In view of above, I do not find any illegality or perversity in the impugned order passed by the trial Court dismissing the second application under Order 7 Rule 11 CPC. 9. Learned counsel for the petitioners made another argument that earlier civil suit filed was on the basis of same documents which after trial was dismissed vide judgment and decree dated 15.01.1986. 9. Learned counsel for the petitioners made another argument that earlier civil suit filed was on the basis of same documents which after trial was dismissed vide judgment and decree dated 15.01.1986. The second suit on the same cause of action and for same relief, is not maintainable and it is hit by principle of res judicata. If that is so, the petitioners will be at liberty to press upon the trial Court at the time of framing the issues that the issue of res judicata should be treated as preliminary issue and be decided before considering the suit on merits. The petitioners will be at liberty to move appropriate application before the Court in this regard also. 10. In view of the above, present revision petition is disposed of in the above terms. ---------0.B.S.0------------