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2023 DIGILAW 919 (RAJ)

Munni Devi W/o Late Prabhat v. Ramsahai S/o Ladu, (Since Deceased)

2023-04-25

MAHENDAR KUMAR GOYAL

body2023
ORDER 1. This civil revision petition is directed against the order dated 15.11.2022 passed by the learned Additional District Judge No.3, Jaipur District, Jaipur (for brevity, 'the learned trial Court') in Civil Suit No.169/2013 (277/2008) whereby, an application filed by the petitioners/defendants no.1 to 5 (for brevity, 'the petitioners') under Order 7 Rule 11 read with Section 151 CPC has been dismissed. 2. The relevant facts in brief are that the respondent no.1/plaintiff (for brevity, 'the plaintiff') filed a suit for declaration and injunction against the petitioners and the respondents no.2 to 8. An application filed by the petitioners therein under Order 7 Rule 11 read with Section 151 CPC for rejection of the plaint has been dismissed by the learned trial Court vide its order dated 15.11.2022. 3. Learned counsel for the petitioners submits that the learned trial Court erred in rejecting their application on the premise that their earlier similar application dated 16.04.2021 came to be dismissed vide order dated 19.08.2021. Inviting attention of this Court towards the order dated 19.08.2021 dismissing the earlier application filed by them, learned counsel submits that therein, the learned trial Court did not appreciate the objection raised by them as to maintainability of the civil suit and hence, the second application was maintainable. She, in support of her submission, relies upon a judgement of Hon'ble Supreme Court of India in case of UP State Road Transport Corporation Vs. State of UP & Another: (2005) 1 SCC 444 . She, therefore, prays that the civil revision petition be allowed, the order dated 15.11.2022 be quashed and set aside and the application filed by the petitioners under Order 7 Rule 11 read with Section 151 CPC be allowed. 4. Heard. Considered. 5. Indisputably, the petitioners have filed an earlier application dated 16.04.2021 under Order 7 Rule 11 CPC seeking rejection of the plaint alleging that without seeking declaration as to his khatedari rights, the suit filed by the plaintiff was not maintainable. The application came to be dismissed by the learned trial Court vide its order dated 19.08.2021 which has attained finality. Thereafter, the instant application filed by the petitioners raising similar objection has been dismissed vide order dated 15.11.2022, impugned herein. It is trite law that the principles of res judicata/constructive judicata are applicable in the subsequent stages of same proceedings during pendency of the suit. Thereafter, the instant application filed by the petitioners raising similar objection has been dismissed vide order dated 15.11.2022, impugned herein. It is trite law that the principles of res judicata/constructive judicata are applicable in the subsequent stages of same proceedings during pendency of the suit. A coordinate Bench of this Court has, in case of Sahina Vs. Returning Officer (Panchayat) Gram Panchayat Jhiwana, Panchayat Samiti Tijara & Ors., S.B. Civil Writ Petition No.6916/2017, vide order dated 10.05.2017 held as under:- '6. Of importance in the case is the fact of an earlier application under Order 7 Rule 11 CPC which was dismissed by the trial, court on 12-2- 2016. The RC did not in the said application set up ground under Rule 81 of the Rules of 1994 with regard to the election petition not being presented by the election petitioner or by one duly authorised by her in writing. The RC at the stage of final arguments then filed the second application under Order 7 Rule 11 CPC which has been dismissed by the impugned order by the trial court. Section 141 CPC provides that the procedure provided in the Code of Civil Procedure in regard to suits shall be followed, as far as it can be made applicable in all proceedings in any court of civil jurisdiction. That would apply to applications under Order 7 Rule 11 CPC. I am of the considered view that thus an application under Order 7 Rule 11 CPC in a suit/election petition can be laid only on one occasion and repeated applications under the aforesaid provision cannot be filed nor could have been conceivably contemplated in law. Were it to be so, there would be multiple applications under Order 7 Rule 11 CPC leading to enormous delays in the disposal of the suits/election petitions. Issues of resjudicata would also arise on such multiple applications under Order 7 Rule 11 CPC. 7. The Apex Court in the case of Y.B. Patil Vs. Y.L. Patil [ AIR 1977 SC 392 ] reiterated the well settled legal position that the principles of res judicata can be invoked not only in separate subsequent proceedings, but also get attracted in subsequent stage of the same proceedings. 7. The Apex Court in the case of Y.B. Patil Vs. Y.L. Patil [ AIR 1977 SC 392 ] reiterated the well settled legal position that the principles of res judicata can be invoked not only in separate subsequent proceedings, but also get attracted in subsequent stage of the same proceedings. The RC not having invoked Rule 81 of the Rules of 1994 in her first application under Order 7 Rule 11 CPC, which was dismissed on 12-2-2016, (and which order has attained finality), she could not have filed the second application under Order 7 Rule 11 CPC purporting to invoke Rule 81 of the Rules of 1994. Such an application was barred by constructive res judicata.' 6. In the present case, a perusal of the application filed by the petitioners under Order 7 Rule 11 CPC reveals that the same plea has been raised which was raised in the earlier application. Therefore, the learned trial Court did not err in dismissing the application inter alia on the ground of res judicata. 7. Submission raised by learned counsel for the petitioners that on earlier occasion, plea raised by them was not considered by the learned trial Court while considering the application is of no help to her. Even assuming the contention to be true, it could not have furnished a ground to the petitioners to renew the prayer by way of fresh application and sought review of the order dated 19.08.2021 which had attained finality. 8. The judgement relied upon by learned counsel for the petitioners is of little assistance to her inasmuch as in Para No.11 of the judgement in case of UP State Road Transport Corporation (supra), their Lordships have reiterated the principle that the res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings. 9. Upshot of the aforesaid discussion is that the civil revision petition is devoid of merit and is dismissed accordingly.