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2017 DIGILAW 839 (MP)

Qamar Ahmad Qureshi v. Abdul Wajid Khan (Raja)

2017-07-19

RAJEEV KUMAR DUBEY

body2017
JUDGMENT : Rajeev Kumar Dubey, J. This civil revision has been filed under Section 115 of CPC against the order dated 30.03.2017 passed by Fourth Civil Judge Class II, Jabalpur in Civil Suit No.48-A/2017 whereby the learned Civil Judge Class II rejected the applicant's application filed under Order 7, Rule 11 of CPC that the suit is barred by law. 2. Brief facts of the case relevant to the disposal of this petition are that non-applicant/plaintiff filed Civil Suit No.48- A/2017 for eviction under Sections 12 (1)(a), (1)(c), (1)(e) of M.P. Accommodation Control Act and for arrears of rent and also for mesne profit averring that the suit house was formerly owned by the ancestors of the plaintiff, and after partition it came in the share of his grandmother and after her death, the plaintiff is a co sharer of the suit house with others. Applicant/defendant is a tenant in the suit house. But the applicant did not pay the rent since the year 1999 and also denied the fact that non applicant is the owner of the suit house. The non-applicant requires suit house for his and his brother's residence. 3. During trial of the suit, applicant filed an application under Order 7, Rule 11 of CPC averring that the non-applicant has not filed any documents regarding ownership of the suit house. Earlier, the applicant/defendant had filed Civil Suit No.16A/2011 against grandparents of the non-applicant/ plaintiff which was decided by Vth Civil Judge Class II, Jabalpur by judgment dated 12.03.2012 in which learned Civil Judge held that ownership of the suit house rests with Abdul Kayum Khan, Son of Abdul Gaffar Khan. Against that judgment non-applicant/plaintiff's grandparents filed Civil Appeal No.18-A/2012, which was disposed of by the 10th Additional District Judge, Jabalpur vide judgment dated 07.02.2013 and he affirmed the judgment of Civil Judge, Class-II, so plaintiff's suit was barred by principles of res judicata. Non-applicant/plaintiff in his reply opposed the prayer. Learned Civil Judge rejected the applicant's application by order dated 30.03.2017 observing that whether or not the non-applicant/plaintiff was owner of the suit house is a matter of evidence and can be decided only after recording of evidence. So, the application is not maintainable at this stage. Being aggrieved from that order, applicant filed this petition. 4. Learned Civil Judge rejected the applicant's application by order dated 30.03.2017 observing that whether or not the non-applicant/plaintiff was owner of the suit house is a matter of evidence and can be decided only after recording of evidence. So, the application is not maintainable at this stage. Being aggrieved from that order, applicant filed this petition. 4. Learned counsel for the applicant submitted that the non-applicant/plaintiff filed the suit for eviction of the applicant from the suit house and has also pleaded in the plaint that he is the owner of the suit house. The suit house was formerly owned by the ancestors of the plaintiff and after partition it was came in the share of his grandmother and after her death, the plaintiff is a joint owner of the suit house with the others, being a sharer in the said house. While earlier the applicant/defendant had filed Civil Suit No.16A/2011 against grandparents of the non-applicant/plaintiff which was decided by Vth Civil Judge Class II, Jabalpur by judgment dated 12.03.2012 wherein learned Civil Judge held that ownership of the suit house is of Abdul Kayum Khan, Son of Abdul Gaffar Khan. Against that judgment grandparents of the non-applicant/plaintiff filed Civil Appeal No.18-A/2012, which was disposed of by, the 10th Additional District Judge, Jabalpur by the judgment dated 07.02.2013 and he affirmed the judgment of Civil Judge, Class-II. So suit of the plaintiff is barred by principles of res judicata. Learned Trial Court without appreciating that fact wrongly rejected the application. 5. This Court has gone through the record and arguments put forth by learned counsel for the applicant. It is settled that at the stage of deciding the application under Order 7, Rule 11 of CPC only averment of plaint should be seen assuming it to be correct. The non-applicant/plaintiff averred in his plaint that he is a one of the co-owner of suit house. Whether or not the non-applicant/plaintiff is owner of the suit house is a matter of evidence and so is the impact of judgment passed by Vth Civil Judge Class II, Jabalpur in Civil Suit No.16-A/2011. 6. Apex court in the case of Kamala and others v. K.T. Eshwara SA and others reported in (2008) 12 SCC 661 to deal with the concept of res judicata, opined:- "The principles of res judicata, when attracted, would bar another suit in view of Section 12 C.P.C.. 6. Apex court in the case of Kamala and others v. K.T. Eshwara SA and others reported in (2008) 12 SCC 661 to deal with the concept of res judicata, opined:- "The principles of res judicata, when attracted, would bar another suit in view of Section 12 C.P.C.. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at the stage of proceeding under Order 7, Rule 11(d) C.P.C.". 7. So in the considered opinion of this court learned Trial Court did not commit any mistake in rejecting the applicant's application, hence, this petition is dismissed with the observation that petitioner is free to raise his objections in his written statement which will be decided by the trial Court after recording of the evidence according to law. 8. With the aforesaid observation, the revision is dismissed.