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2017 DIGILAW 468 (MP)

Ramkripal Sahu v. Gujratiya Sahu

2017-04-07

ASHOK KUMAR JOSHI

body2017
ORDER 1. Petitioners/original defendants No.1, 2, 10 and 11 have filed this civil revision under section 115 of the Civil Procedure Code against an order dated 19.1.2016 passed by the Second Civil Judge Class-II, Teonthar, District Rewa in Civil Suit No.265-A/2015, whereby an application filed by the present petitioners/above mentioned defendants under section 11 of the Civil Procedure Code has been dismissed in above mentioned suit filed by the plaintiffs/present respondents No.1 to 6. The present petitioners have objected the maintainability of the suit on the ground that it is not maintainable on the basis of doctrine of res judicata, as previous suit's final judgment is binding. Though the dismissed application was filed under section 11 of the CPC, but legally and impliedly it was an application under Order 7 rule 11 of the Code of Civil Procedure objecting to the tenability or maintainability of subsequent suit. 2. Relevant facts are that present respondents No.1 to 6, Smt.Gujratiya Sahu, Smt.Urmila Devi Sahu, Smt.Kusum Kali Sahu, Smt.Santosh Kumari Sahu, Smt.Mantosh Kumari Sahu and Smt.Sarla Devi Sahu have filed the plaint for reliefs of declaring title and share of the plaintiffs in disputed agricultural lands and for partition and perpetual injunction against the defendants No.1 to 11. Defendant No.12 State of M.P. through Collector, Rewa is a formal party against whom, no relief has been sought by the plaintiffs. On above mentioned plaint, suit bearing Civil Suit No.265-A/2015 has arisen, which is pending before above mentioned Court. Copy of the plaint filed by the above mentioned plaintiffs has been filed by the petitioners in this revision as Annexure P-4. 3. An application under section 11 of the Civil Procedure Code was filed by the present petitioners before the trial Court, in which it has been averred that defendant No.4 Vishwanath Sahu had expired on 21.11.2014 and previously, plaintiffs had filed a suit against the defendants in the same Court relating to most of disputed lands bearing Civil Suit No.242-A/2004, wherein a final judgment and decree was passed by the trial Court on 31.3.2008 and against that decree, regular civil appeal was filed by the present petitioners before the Court of District Judge, Rewa and by final judgment and decree passed by the Ninth Additional District Judge (Fast Track Court), Rewa, the regular civil appeal was allowed on 30.10.2009. It was also averred that the plaintiffs abusing the process of Court have filed a new suit, whereas the points involved in this suit have already been decided in above mentioned previous suit and the matter directly and substantially in issue in pending suit have been directly and substantially in issue in above mentioned former suit between the same parties, or between parties under whom they or any of them claim and thus subsequent suit is barred under the doctrine of res judicata provided under section 11 of the Civil Procedure Code as the final judgment and decree passed by the competent Court in previous suit has attained finality. Thus subsequent suit is not maintainable and the plaintiffs have dishonestly to save the subsequent suit from the doctrine of res judicata, have included some other agricultural lands in subsequent suit with the lands which were disputed in previous suit and similarly some new parties have also been added, thus the plaint of subsequent suit is not maintainable and it was prayed that as the plaint of subsequent suit is not maintainable, it should be dismissed. Copy of the above mentioned application has been filed as Annexure P-5. 4. Before the trial Court, reply by the plaintiffs has been filed pleading that the facts mentioned in the application are not clear, thus there appears difficulty in fling specific reply. It was also averred in reply that the disputed lands are not totally same and the previous suit was filed for declaration of title, which was decreed, but the appeal filed by the defendants of previous suit was partially allowed by the appellate Court. It was further pleaded that the application under section 11 of the Civil Procedure Code has been filed only with ulterior motive to delay the trial of the pending suit and suit is maintainable, thus it was prayed that the application filed by some of the defendants be dismissed. Copy of above mentioned reply has been filed as Annexure P-6 by the petitioners. 5. Present petitioners have filed the photocopy of the certified copies of the judgment and decree passed by the Civil Judge Class-II, Teonthar, District Rewa in Civil Suit No.242-A/2004 dated 31.3.2008 as Annexure P-1 and photocopy of certified copies of judgment and decree passed by the Ninth Additional District Judge (Fast Track Court), Rewa dated 30.10.2009 in Civil Suit No.23-A/2009 as Annexure P-2. 6. 6. The maintainability of the plaint of any suit could be objected under the provision of Order 7 rule 11 of the Civil Procedure Code with a prayer of rejection of plaint, where it does not disclose a cause of action, or where the relief claimed is undervalued and plaint was not having proper court-fee, or where the suit appears from the statement in the plaint to be barred by any law. Thus, it is clear that though the application was apparently filed under section 11 of the Civil Procedure Code, but substantially it was an application under Order 7 rule 11 of the Civil Procedure Code objecting to the maintainability of the plaint on the basis of doctrine of res judicata embodied in section 11 of the Civil Procedure Code. The trial Court in the impugned order has observed that there is difference of some parties as in subsequent suit, some new parties have been added and similarly in pending suit some new agricultural lands have been included, which were not subject matter of the previous suit, thus at the stage of application, it could not be decided that the matter in pending suit has been directly and substantially in issue in the previous suit and in such situation, it could not be said that the matter is directly and substantially in issue, thus the application filed by the present petitioners as defendants was dismissed and the suit was fixed for presentation of written statement by the defendants on next date of hearing. Certified copy of the impugned order has been filed by the petitioners in this revision as Annexure P-7. 7. Learned counsel for the petitioners vehemently contended that the copies of the judgment and decree of the trial Court and judgment and decree of the appellate Court passed in previous suit were filed by the present petitioners before the trial Court and certified copy of the plaint of previous suit was also filed, but the learned lower Court has not discussed the factual aspects of the previously decided suit and pending suit and had erred in dismissing the application filed by the present petitioners. 8. 8. On the other hand, learned counsel for the respondents No.1 to 6 contended that the disputed lands in alleged previous suit and pending suit are not totally similar and similarly the parties are not totally similar and it has been rightly observed by the trial Court that some new disputed lands are included in pending suit and some totally new parties are added in subsequent pending suit, thus it is prayed that the civil revision filed by the present petitioners be dismissed. 9. As discussed earlier, the decided application by the impugned order passed by the trial Court is impliedly under Order 7 rule 11 of the Civil Procedure Code. It is also clear from the certified copy of the impugned order that the defendants have not filed their written statement before the trial Court till 19.1.2016. Photocopy of the plaint of the pending suit has been filed by the present petitioners before this Court as Annexure P-4. It appears from the documents that in previous suit, only Smt.Gujaratiya was the plaintiff and its defendants were (1) Ramaavtar, (2) Ramkripal, (3) Ramkrishna, (4), Ramvishal, (5) Chhotelal, (6) Vishwanath, (8) Rambahadur, (9) Pushpendra Kumar and (7) State of M.P., whereas the pending suit has been filed in total six plaintiffs - (1) Smt.Gujritiya Sahu, (2) Smt.Urmila Devi, (3) Smt.Kusum Kali Sahu, (4) Smt.Santosh Kumari Sahu, (5) Mantosh Kumari Sahu and (6) Smt.Sarala Devi Sahu and in pending suit, there are in total twelve defendants i.e. (1) Ramkripal, (2) Ramkrishna, (3) Chhotelal, (4) Vishwanath, (5) Ramsajiwan, (6) Buddhilal, (7) Atibal, (8) Shubhkaran, (9), Ramhit, (10) Rambahadur, (11) Pushpendra Kumar and (12) State of M.P. It has been averred by the present petitioners themselves in their application filed before the trial Court that some new agricultural lands and some new parties have been added in pending suit to save the subsequent suit from the doctrine of res judicata. Previous suit was filed by the plaintiff Smt.Gujratiya only for declaration of title, partition and perpetual injunction in relation to agricultural lands and pending suit's plaint has been filed for declaration of title and share of the plaintiffs in disputed lands, partition and perpetual injunction. The alleged previous suit was decreed by the trial Court, but the appellate Court had partially allowed the defendants' appeal and it passed only decree for perpetual injunction in favour of plaintiff Smt.Gujaratiya. 10. The alleged previous suit was decreed by the trial Court, but the appellate Court had partially allowed the defendants' appeal and it passed only decree for perpetual injunction in favour of plaintiff Smt.Gujaratiya. 10. In the case of P.V. Guru Raj Reddy v. P.Neeradha Reddy [ (2015)8 SCC 331 ], it has been held by the Hon'ble apex Court that while exercising of power under Order 7 rule 11 of the CPC, only the averments in plaint have to be read as a whole and at that time stand of defendants in written statement or in application for rejection of plaint is wholly immaterial at that stage as plaint can be rejected only if the averments made therein prima facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law. 11. In the light of the above mentioned citation of Hon'ble apex Court, it is clear that the plaint in pending suit does not contain any such pleadings or facts which could prima facie indicate that the subsequent suit is barred by any law or barred under section 11 of the CPC in reference to doctrine of res judicata. Thus, it is clear that only looking to the averments or pleadings of the plaint, it could not be rejected on the ground of res judicata. 12. It would be open to the present petitioners that the present petitioners as defendants are having full opportunity to raise the objection regarding res judicata in their pleadings and if any such objection is raised by the present petitioners in their written statement, it could be decided by the trial Court after framing of a issue relating to res judicata as a preliminary issue before recording of evidence. It is clear from the impugned order passed by the trial Court that it has not considered the effect of the previous decree in relation to the disputed lands of the previous suit, which are also disputed in subsequent suit along with some other new disputed lands, but as discussed earlier, under Order 7 rule 11 of the CPC only the plaint averments are to be seen, thus, it is necessary for the trial Court to consider the effect of previous decree on common disputed lands in the subsequent or newly filed suit. At this stage, it could not be held that the trial Court has committed any illegality or irregularity in passing the impugned order. Thus, revision petition in reference to Order 7 rule 11 of the CPC appears to be devoid of any substance. 13. In the result, the revision petition filed by the petitioners is dismissed, but it is directed that after filing of the written statement by the defendants, the trial Court shall frame an issue regarding the objection of res judicata in reference to previously decided suit, if such objection is taken in written statement and thereafter, the framed issue relating to the point of res judicata would be decided by the trial Court as a preliminary issue before recording evidence in the suit. With above mentioned observations, the revision petition is disposed of. There shall be no order as to the costs.