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2023 DIGILAW 69 (MP)

Bhur Singh v. Tol Singh

2023-01-13

PRAKASH CHANDRA GUPTA

body2023
ORDER 1. With the consent of the counsels of both the parties, the matter has been heard finally. 2. Petitioners/defendants Nos.1, 2 and 3 have filed this revision petition u/s 115 of the Code of Civil Procedure (in short "the CPC"), being aggrieved from the order dated 03.11.2022 passed by 2nd Civil Judge, Junior Division, Jhabua, in Civil Suit No.24-A/2022, whereby the learned Trial Court has dismissed the application under Order 7 Rule 11 of CPC filed by the petitioners. 3. Respondent Nos.1 and 2/plaintiffs filed a suit before the learned Trial Court for declaration of title and recovery of possession of agricultural suit land. During pendency of the civil suit, petitioners had filed an application under Order 7 Rule 11 of CPC on the following grounds:- (i) That the plaintiffs had filed a suit for the same relief and in respect of same suit property bearing No.73-A/2021 on 19.07.2021, which was rejected on 17.01.2022 by the learned Trial Court on the basis of application under Order 7 Rule 11 of CPC filed by the petitioners but the plaintiffs had not challenged the aforementioned order in revision or appeal, therefore, the aforementioned order has been final. (ii) Subsequently, plaint filed by the plaintiffs is time barred. The petitioners are in possession of the suit land for more than 12 years. (iii) Plaint does not disclose any cause of action and; (iv) The suit is barred by the principle of res-judicata. 4. At the time of argument, learned counsel for the petitioners has not pressed other grounds and has only pressed that the prior suit was dismissed for lack of cause of action and subsequent suit was filed by the plaintiffs on the same relief. The subsequent suit also does not disclose any cause of action but the learned Trial Court has not properly considered and has wrongly rejected the application under Order 7 Rule 11 of CPC filed by the petitioners. 5. Per contra, learned counsel for respondent Nos.1 and 2/plaintiffs has submitted that the prior suit was rejected by the learned Trial Court on the basis that the suit does not disclose the cause of action, thereafter, the plaintiffs have filed subsequent suit which properly disclosed the cause of action. 5. Per contra, learned counsel for respondent Nos.1 and 2/plaintiffs has submitted that the prior suit was rejected by the learned Trial Court on the basis that the suit does not disclose the cause of action, thereafter, the plaintiffs have filed subsequent suit which properly disclosed the cause of action. He further submitted that as provided under Order 7 Rule 13 of CPC, subsequent suit is not barred, if prior suit was dismissed on the ground that plaint does not disclose cause of action. 6. Order 7 Rule 13 of CPC provides that, where rejection of the plaint does not preclude presentation of fresh plaint - the rejection of the plaint on any of the grounds herein-before mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. 7. In this case, earlier suit was dismissed under Order 7 Rule 11 (a) of CPC on the ground that plaint does not disclose cause of action and thereafter, the plaintiffs have filed the subsequent suit for same relief and same cause of action. On reading of impugned order, it also appears that the learned Trial Court has properly considered the plaint and found that the plaint discloses cause of action. The learned Trial Court has also considered the provision of Order 7 Rule 11 (a) of CPC and has rejected the application filed by the petitioners. 8. It is a settled principle of law that at the time of deciding application under Order 7 Rule 11 of CPC, only plaint has to be seen and not other materials filed by the defendants. On plain reading of the subsequent plaint, filed by the plaintiff, cause of action is properly disclosed. Therefore, the learned Trial Court has not committed any error of law and fact in passing the impugned order. 9. In view of the above discussion and for the reasons stated, this Court does not find any illegality or infirmity in the impugned order. Consequently, the instant revision petition sans merits and is hereby dismissed.