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2013 DIGILAW 410 (AP)

Syed Ali v. Syed Noor Mohammed

2013-06-07

L.NARASIMHA REDDY

body2013
ORDER The petitioner and the respondent are brothers. The respondent filed OS No. 284 of 2010 in the Court of III Additional Chief Judge, City Civil Court, Hyderabad, against the petitioner, for the relief of declaration to the effect that he is the absolute owner and possessor of the suit schedule property i.e., premises bearing No. 16-8-280, Chanchalguda, Hyderabad, and for perpetual injunction to restrain the petitioner from interfering with the peaceful possession and enjoyment thereof. The respondent has narrated the manner in which he is said to have acquired the title to the property. The petitioner filed written statement, opposing the suit. One of the grounds urged by him was that the question of title to the property was determined by the Court of VII Senior Civil Judge, City Civil Court, Hyderabad in OS No. 1409 of 1992 and that the decree passed therein was confirmed in AS No. 131 of 2001 on the file of the XII Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad. 2. The petitioner filed IA No. 338 of 2011 under Rule 11 of Order VII read with Section 151 C.P.C., with a prayer to reject the plaint, on the ground that it is hit by principle of res judicata. The respondent filed counter, opposing the IA. He raised the plea that the application filed by the petitioner is not maintainable in law. The trial Court dismissed the IA, through order, dated 7.4.2011. Hence, this revision. 3. Sri Peri Prabhakar, learned Counsel for the petitioner, submits that once the question of title to the suit schedule property was determined in earlier round of litigation, the present suit by the respondent is not maintainable at all. He contends that though the respondent was held to be entitled to half of the suit schedule property, he filed the suit to declare that he is the absolute owner of the entire property. Learned Counsel submits that the trial Court has taken a hyper-technical view of the matter and that the petitioner is subjected to the ordeal of going to the trial, despite the fact that the issue has already been decided. 4. Learned Counsel submits that the trial Court has taken a hyper-technical view of the matter and that the petitioner is subjected to the ordeal of going to the trial, despite the fact that the issue has already been decided. 4. Sri M. Govind Reddy, learned Counsel for the respondent, on the other hand, submits that the issue that fell for consideration in OS No. 1409 of 1992 is substantially different and the finding therein does not operate as res judicata in the present suit. He further submits that the question as to whether a finding on an issue, in an earlier suit operates as res judicata in a subsequent suit, is a mixed question of fact and law, and at the best, it can constitute the subject-matter of an issue, but not a ground to reject the plaint in the subsequent suit. He contends that Order VII Rule 11 CPC does not take in its fold, the ground of res judicata. 5. The respondent herein filed the suit for the relief of declaration of title and perpetual injunction. The petitioner wanted the suit to be terminated, by rejection of plaint, on the ground that it is hit by the principle of res judicata. The trial Court did not accede to the request of the petitioner. 6. Rule 11 of Order VII C.P.C., provides for an exceptional remedy to the defendant in a suit, to get the proceedings terminated without the necessity of trial. In the ordinary course of things, once a suit is filed, the issues are to be framed on the basis of pleadings and the Court has to determine the issues, after conducting trial and it is thus the suit comes to be terminated, with a decree on merits. The facility created under Rule 11 of Order VII C.P.C., is that, if the grounds mentioned therein are attracted, in a given case, the plaint can be rejected, and thereby, the necessity to undertake trial is obviated. The facility created under Rule 11 of Order VII C.P.C., is that, if the grounds mentioned therein are attracted, in a given case, the plaint can be rejected, and thereby, the necessity to undertake trial is obviated. The provision reads : "11.Rejectian of plaint.-The plaint shall be rejected in the following cases,- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of Rule 9: [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff]." 7. From a perusal of this, it is evident that res judicata is not mentioned as a ground for rejection of plaint. 8. Section 11 of C.P.C. is devoted to define the concept of res judicata. The Legislature, which elaborated the principle of res judicata in minute detail in Section 11, did not choose to treat it as a ground for rejection of plaint, and obviously for that reason, it was not included in Rule 11 of Order VII C.P.C. The reason is not difficult to discern. 9. In a suit, the relief of comprehensive nature is prayed for. It is in relation to the relief, and based upon the pleading, that several issues are framed in a suit. The result of a suit would depend upon the answer to various issues. 9. In a suit, the relief of comprehensive nature is prayed for. It is in relation to the relief, and based upon the pleading, that several issues are framed in a suit. The result of a suit would depend upon the answer to various issues. Even if one or few issues are answered against the plaintiff, there may be circumstances where the suit can still be decreed, on the basis of finding on the other issues. 10. The starting sentence of Section 11 C.P.C. makes it clear that the provision deals with the determination of "issues" in a suit, and not the result thereof. What Section 11 prohibits is, raising of issues in a subsequent suit, in case they have been decided as between the same parties by a Court of competent jurisdiction, in an earlier suit. 11. The principle of res judicata cannot be pressed into service for rejection of the plaint. The reasons are more than one. Firstly, the question as to whether the issue that is framed in a subsequent suit is the same, as or substantially similar to, the one that fell for consideration in an earlier suit, and whether the parties are one and the same, is a question of fact, which can be determined only on evidence and the principle of law gets attracted depending upon the answer on facts. In that view of the matter, it is a mixed of question of fact and law. It may be that the volume of evidence could determine such question may be relatively small. All the same, the evidence as such, must be adduced to prove the contention. 12. Secondly, even where one of the issues framed in a subsequently filed suit is found to have been barred by res judicata, the other issues need to be dealt with and answered. The matter can be demonstrated through the present suit itself. The respondent claimed the relief of title and possession. Assuming that the question of title has been determined in earlier suit, the one relating to possession remains. Even if a plaintiff in a suit of this nature fails to prove title, he can be granted the relief of perpetual injunction, in case he proves possession over the suit schedule property. 13. Assuming that the question of title has been determined in earlier suit, the one relating to possession remains. Even if a plaintiff in a suit of this nature fails to prove title, he can be granted the relief of perpetual injunction, in case he proves possession over the suit schedule property. 13. Thirdly, Order VII Rule II CPC, which has the effect of denying or barring access to the plaintiff to a civil Court, must be interpreted strictly. Any doubt, or second opinion, in this behalf, needs to be extended to the plaintiff, so that, the power of the civil Court to decide the suits remains in tact. On general principles also, the right or competence of civil Court is almost taken for granted that an aggrieved individual can seek redressal from a civil Court, unless the suit is specifically barred. Once res judicata is not included as a ground in Rule 11 of Order VII CPC, it cannot be added, nor can the relief under the provision be extended through implication. 14. Reliance is placed upon the judgment of this Court in Sikhakolli Venkata Subba Rao v. Grandhi Punnarao, 1995 (I) ALD 529 = 1995 (1) ALT 491 . That was the case where a tenant, who suffered decree for eviction up to the High Court, filed a suit for declaration to the effect that the judgment rendered against him is null and void. The trial Court refused to number the suit and the plaint was rejected. The appeal filed against the rejection of plaint was dismissed and the same was confirmed by this Court in the revision. The rejection of plaint in that case can be addressed to clauses (a) and (d) of Rule 11 of Order VII CPC. 15. The cause of action for the subsequent suit obviously was the passing of orders of eviction, and it cannot be treated as a valid one. Secondly, it is only when a judgment is rendered by a Court without jurisdiction that a suit can be filed to declare the judgment rendered by it as null and void. Suits of that nature are filed mostly by persons who are not parties to the earlier suit in which the judgment, which is sought to be set aside, was rendered. In such a case, the principle of constructive res judicata gets attracted and thereby subsequent suit becomes barred. Suits of that nature are filed mostly by persons who are not parties to the earlier suit in which the judgment, which is sought to be set aside, was rendered. In such a case, the principle of constructive res judicata gets attracted and thereby subsequent suit becomes barred. Such is not the case here. 16. The judgment of Delhi High Court in Shri Ramesh Kumar Sharma v. The Ambassador, Royal Netherlands Embassy, New Delhi, is not of any help to the petitioner. 17. The CRP is accordingly dismissed. There shall be no order as to costs. 18. The miscellaneous petition filed in this petition shall also stand disposed of.