HONBLE SRI JUSTICE A.V. SESHA SAI
CIVIL REVISION PETITION No.3243 of 2014
16-04-2015
1. Yachamaneni Chandra Mohan Rao & another...Petitioners
1. Edmala Narsamma @ Narsavva & 28 others...Respondents
Counsel for Petitioners: Sri Bodduluri Srinivasa Rao
Counsel for Respondents 1 & 2: Sri N. Ashok Kumar
<GIST:
>HEAD NOTE:
? Cases referred
1. 2012 (6) ALD 36 (SC)
2. (2009) 1 Supreme Court Cases 689
3. AIR 1984 Orissa 187
4. AIR 1969 Supreme Court 971
5. AIR 1978 Punjab and Haryana 216
6. 2014 (2) ALD 149
7. AIR 1952 Punjab 190
8. (1980) 3 Supreme Court Cases 565
9. AIR 1926 Lahore 563
HONBLE SRI JUSTICE A.V. SESHA SAI
CIVIL REVISION PETITION No.3243 of 2014
Date: April 16, 2015
O R D E R:
The application which is the genesis for the present revision
filed under Article 227 of the Constitution of India is one under
Order VII Rule 11 of the Code of Civil Procedure (CPC). In the
present revision filed by the defendants 28 and 29 challenge is to
the order dated 31.07.2014 passed by the Court of the Senior Civil
Judge, Siricilla, dismissing I.A.No.219 of 2014 in O.S.No.139 of 2013.
2. The circumstances, leading to the filing of the instant
revision are as infra:
Respondents 1 and 2 herein instituted the above mentioned
suit against the petitioners and the other respondents herein for
declaration of title and declaration of registered sale deeds
standing in the name of the defendants as fraudulent, illegal, null
and void and for perpetual injunction and mandatory injunctions
in respect of the suit schedule property. In the said suit,
defendants 28 and 29, who are the petitioners herein, filed the
present I.A.No.219 of 2014 under the provisions of Order VII Rule
11 of CPC, praying the Court below to reject the plaint. Plaintiffs 1
and 2/respondents 1 and 2 herein opposed the said application by
filing counter-affidavit. The learned Senior Civil Judge, Siricilla, by
virtue of order dated 31.07.2014, dismissed the said application.
3. Calling in question the validity and the legal sustainability of
the said order passed by the learned Senior Civil Judge, Siricialla,
the present revision has been filed.
4. Heard Sri Bodduluri Srinivasa Rao, learned counsel for the
petitioners and Sri N. Ashok Kumar, learned counsel for
respondents 1 and 2 apart from perusing the material made
available before this Court.
5. Submissions/contentions of the learned counsel for the
petitioners:
(1) The order impugned in the instant revision is
erroneous, contrary to law and is opposed to the very
spirit and object of the provisions of Order VII Rule 11
and Order IX Rule 9 of CPC.
(2) The learned Judge failed to take into consideration the
contents of the affidavit filed in support of the
application and had the same been taken into
account, the order under challenge would not have
emanated.
(3) In view of the dismissal of O.S.No.195 of 1982 filed by
the plaintiffs/respondents herein for the same relief,
the present suit is hit by the provisions of Order IX
Rule 9 of CPC.
(4) The learned Judge ought to have taken into account
the aspect of filing of the present suit i.e., O.S.No.139
of 2013 based on the sale deed dated 23.12.1964 and
seeking possession in the year 2003 and should have
allowed the application.
6. Submissions/contentions of the learned counsel for the
respondents:
(1) The order under challenge is in conformity with the
provisions of Order VII Rule 11 of CPC.
(2) There is no illegality nor any material infirmity in the
order passed by the learned Senior Civil Judge,
Siricilla, and in the absence of the same, the present
revision is not maintainable and the petitioners herein
are not entitled for any relief from this Court under
Article 227 of the Constitution of India.
(3) The cause of action for instituting the present suit is
different from the cause of action for filing the earlier
suit i.e., O.S.No.195 of 1982 as such the petitioners
herein are not entitled for any relief.
(4) Since there are no ingredients of Order VII Rule 11 of
CPC in the case of the petitioners herein, the plaint
cannot be rejected.
(5) The application for partial rejection of plaint at the
instance of certain defendants only is not
maintainable.
7. In support of his submissions and contentions the learned
counsel for the respondents places reliance on the judgments in
Church of Christ Charitable Trust and Educational Charitable
Society V. Ponniamman Educational Trust ; State of Uttar Pradesh
V. Jagdish Sharan Agrawal ; Lingaraj Samantarayk and others V.
Sri Sidhabaladevjew ; Shivashankar Prasad Sah and another V.
Baikunth Nath Singh and others ; Manphool and others V. Surja
Ram and others and Kasani Narsimulu V. Sathagowni Srinivas
Goud and others .
8. In the above background, now the issues that emerge for
consideration of this Court in the present revision are:
(1) Whether the order under revision is in
conformity with the provisions of Order VII
Rule 11 of CPC?
(2) Whether the order impugned warrants any
interference of this Court under Article 227 of
the Constitution of India?
9. The provisions of law which are germane and relevant for
the purpose of consideration of the issues involved in the present
revision are Order VII Rule 11 and Order IX Rules 8 and 9 of CPC
which read as under:
Order VII Rule 11 of CPC:
Rejection 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-
paper 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 for correcting the valuation or supplying
the requisite stamp-paper, 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.]
Order IX Rules 8 and 9 of CPC:
8. Procedure where defendant only appears:---
Where the defendant appears and the plaintiff does
not appear when the suit is called on for hearing, the
Court shall make an order that the suit be dismissed,
unless the defendant admits the claim, or part thereof,
in which case the Court shall pass a decree against
the defendant upon such admission, and, where part
only of the claim has been admitted, shall dismiss the
suit so far as it relates to the remainder.
9. Decree against plaintiff by default bars fresh
suit.--- (1) Where a suit is wholly or partly dismissed
under rule 8, the plaintiff shall be precluded from
bringing a fresh suit in respect of the same cause of
action. But he may apply for an order to set the
dismissal aside, and if he satisfies the Court that there
was sufficient cause for his non-appearance when the
suit was called on for hearing, the Court shall make
an order setting aside the dismissal upon such terms
as to costs or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit.
(2)No order shall be made under this rule
unless notice of the application has been served on
the opposite party.
10. Under the provisions of Order VII Rule 11 of CPC, courts are
authorized and empowered to reject plaints. Since this is a
drastic remedy provided by the Code to non-suit the parties at
threshold, the said power is required to be exercised with great
amount of care, caution and circumspection and the same shall
not be used in a routine and mechanical manner. It is settled law
that when a serious dispute is raised by the parties with regard to
the cause of action and limitation as to the dispute the same is to
be resolved only after framing the issue and conducting trial on
the said aspect, but not by rejecting the plaint. It is also a settled
principle of law that while examining the application filed under
Rule 10 or Rule 11 of Order VII, the Court has to take the
averments in the plaint on their face value and the plaint cannot
be rejected on the basis of written statement or the application
filed under the said provisions of Order 7 Rule 11 of CPC. Unless
a party applying for thoroughly and completely satisfies the Court
and proves the existence of necessary ingredients of law, the
exercise of the power under these provisions is impermissible to
the Court.
11. The issues in the present case are required to be examined
in the light of the above aspect. In the instant revision it is the
contention of the learned counsel for the petitioners that the
objection of the petitioners squarely falls under Order VII Rule 11
of CPC and the plaint is liable to be rejected in view of the
mandatory provisions of Order IX Rule 9 of CPC. While
elaborating the same, it is contended by the learned counsel that
as the earlier suit, O.S.No.195 of 1982, filed by the same plaintiffs
on the same foundation was dismissed for default and no steps
were taken for getting the same restored, the present suit filed on
the same basis cannot be permitted to be prosecuted in the teeth
of provisions of Order IX Rule 9 of CPC.
12. On the contrary, it is the case of the plaintiffs/respondents
herein that since the cause of action which compelled them to file
the instant suit is different from the cause of action in O.S.No.195
of 1982, the said provisions of law cannot be pressed into service
for non-suiting them.
13. In order to appreciate the same, this Court finds it
appropriate to refer to the provisions of Order IX Rules 8 and 9
of CPC. According to Order IX Rule 8 of CPC where the
defendant appears and the plaintiff does not appear when the suit
is called on for hearing, the Court shall make an order that the
suit be dismissed, unless the defendant admits the claim, or part
thereof. As per Rule 9 of Order IX of CPC where a suit is wholly
or partly dismissed under Rule 8, the plaintiff shall be precluded
from bringing a fresh suit in respect of the same cause of action.
But he may apply for an order to set the dismissal aside.
Therefore, it is evident from the above provisions of law that
when a suit is dismissed for default due to non-appearance of the
plaintiff, the second suit on the same cause of action is not
maintainable and is barred.
14. At this juncture, it may be appropriate to extract paragraph
5 of the plaint in O.S.No.195 of 1982 which dealt with the cause of
action. The said paragraph reads as under:
That the cause of action arose to the plaintiffs to
institute this suit against the defendants on 5.9.1982 at
Tangallapalli village of Sircilla taluk when the defendants
came to the suit land and interfered with the possession
of the plaintiffs over the suit land and withstanding
green and black gram crops.
It may also be appropriate to extract paragraph 3 of the plaint in
O.S.No.195 of 1982 which reads as under:
That the plaintiffs are owners, possessors,
enjoyers and cultivators of the dry land bearing S.No.76
measuring 5A-24G situated at Tangallapalli Village of
Sircilla taluk, (herein after called the suit property).
The suit land was purchased by the plaintiff No.1s father
Edamala Bhuchi Ramaiah and the plaintiff No.2 jointly
from the defendants and other shareholders on
23.12.1954 for a consideration of rs.1,500/- executing on
stamped sale deed worth of Rs.1.50 p. That the
plaintiffs are in possession and enjoyment of the suit
land since the date of purchase by paying land revenue
regularly. The said stamped sale deed dated 23.12.1954
got impounded and certified by the Revenue Divisional
Officer, Jagtial vide his proceeding No.F/3667/82 dated
17.08.1982. The plaintiff No.1s father and the plaintiff
No.2 are in possession and enjoyment of the suit land
continuously and after the death of plaintiff No.1s
father, the plaintiff No.1 and the plaintiff No.2 are in
the continuous possession and their names were also
recorded in the revenue records for the years 1964-65,
1965-66, 1966-67, 1967-68, 1970-71, 1976-77, 1977-78,
1980-81 and 1981-82 and the certified copies of pahani
patrikas for the said years in respect of the suit land are
filed herewith. The plaintiffs were also issued LR
receipts for the years from 1970-71 to 1981-82
contained in the ryot pass is enclosed herewith. The
plaintiffs were also issued record of right, ryot pass
books by the Tahsil Officer, Sircilla, are also enclosing
herewith. Thus the plaintiffs are the absolute owners,
possessors, enjoyers and cultivators of the suit land by
paying land revenue regularly. That the defendants have
no rights whatsoever the suit land.
15. In the present suit i.e., O.S.No.139 of 2013 paragraph 4 of
the plaint deals with cause of action and it reads as under:
Cause of action arose to the suit, on 23.12.1964,
when the fathers/grandfathers of defendants 1 to 24
got executed simple sale deed in favour of Edmala Budhi
Ramaiah and Mallaiah, in respect of land, in Sy.No.76, to
the extent of Ac.5.24 guntas, on 19.12.1966, when Budhi
Ramaiah got executed Will deed in favour of plaintiff
No.1, on 17.8.1982, when the simple sale deed got
impounded, on 05.09.1982, when the
fathers/grandfathers of defendants 1 to 24 got
interfered in to suit land and a suit, in O.S.No.195 of
1982 was filed and on 15.07.1988, when the suit was
dismissed for default, on 05.09.1996, when the Mandal
Revenue Officer, Sircilla got mutated the name of
plaintiff No.1, by entering the same in the mutation
register, for the year 1996-97, vide Proceedings
No.1962/1996, on 02.09.1995, when the defendant No.25
got obtained regd. Sale deed, on 30.03.1996, when the
defendants 26 and 27 got obtained regd. Sale deed, vide
Document No.833/1996 from the other batch of Lingam
Pedda Yellaiah, s/o Lasmaiah and others, on 01.4.1996,
when the same defendants 26 and 27 got obtained regd.
Sale deed, vide Document No.846/1996, on 25.04.1997,
when the defendants 26 and 27 ------- revenue appeal
before R.D.O., Sircilla and on the R.D.O., Sircilla, without
mentioning the date of orders, pronounced the judgment,
by setting aside the orders of M.R.O., Sircilla, on
25.11.2002, when the plaintiff No.1 has preferred
revision petition before District Collector, Karimnagar, on
25.07.2005, when the District Collector (ROR),
Karimnagar was pleased to remand the matter to the
Mandal Revenue Officer, Sircilla, for conducting of
DENOVA enquiry, vide Revision Petition
No.D1/7329/1999, on 25.02.2006, when Mandal Revenue
Officer, Sircilla, by conducting DENOVA enquiry, by
elaborately discussing the rights of the contesting
parties got confirmed the earlier orders, vide
Proceedings No.B/679/2005, on 27.01.2007, when the
defendant No.26 got preferred second appeal before
Revenue Divisional Officer, Sircilla, vide Appeal
No.D/60/2007, on 17.01.2011, when the Revenue
Divisional Officer, Sircilla, without appreciating the
DENOVA enquiry of M.R.O., Sircilla was allowed the
appeal, on .02.2011, when the plaintiff No.1 has
preferred revision petition, vide Revision Petition
No.D1/602/2011, before Joint Collector, Karimnagar and
during the pendency of revision petition, on 23.06.2011,
the Mandal Revenue Officer, Sircilla, without taking into
consideration of the pending of revision petition as well
as pending of stay application got ordered, for mutation
of the names of defendants 27 to 29, in respect of suit
land, in Sy.No.76 to the extent of Ac.1.16 guntas, in the
name of defendant No.26; Ac.1.10 guntas in the name of
defendant No.27; Ac.1.14 guntas each in the names of
defendants 28 and 29, for the pahanies from 2009-2010,
2010-2011, 2011-12 and 2012-13 though the plaintiff No.1
has been in physical possession and enjoyment of the suit
land, on 05.01.2013, when the Joint Collector, Karimnagar
got dismissed the revision petition and against which on
writ petition No.18270/2013 has filed and the same is
pending, before Honble High Court of Judicature of A.P.,
at Hyderabad, on 28.7.2013, in spite of pending of the
writ petition, by denying the title of the plaintiff No.1,
the defendants 26 to 29 came to the suit land with an
intention to convert the suit land into residential plots,
with an intention to alienate the same with the sole
intention to deprive the legitimate right of plaintiff No.1
in respect of the suit property.
16. Paragraph 1 of the plaint narrates the circumstances leading
to the dismissal of earlier O.S.No.195 of 1982 and to the extent of
relevancy, the pleadings read as under:
By taking into consideration of the enjoyment of
the plaintiff No.1 on the spot, the revenue authorities
got recorded the name of plaintiff No.1, as possessor to
the extent of Ac.2.32 guntas, in Sy.No.76, in the pahani,
for the year 1981-82. While it was so, in the month of
September, 1982, some of the vendors of the father of
plaintiff No.1 got interfered into the suit land, due to
which, she along with her paternal uncle got filed a suit
for declaration of title and perpetual injunction, in
O.S.No.195 of 1982, on the file of District Munsiff, at
Sircilla, against 1) Lingam Ellaiah, 2) Lingam Chandraiah,
3) Longam Rajaiah, 4) Longam Balaiah, 5) Longam Kotaiah,
6) Longam Lasumaiah and 7) Longam Narsaiah and in the
mean while, due to the intervention of the elders, they
had repented for their illegal acts and assured the
plaintiff No.1 that, they would not interfere into suit land
and got compromised with the plaintiff No.1 and her
junior paternal uncle, in respect of the suit land and due
to which, they did not proceed with the suit and
moreover, from the beginning Edmala Mallaiah, the junior
paternal uncle was only dealing with the said suit, since he
only engaged advocate and briefed the case, as such, she
did not enquire, so as to know, what happened to her suit.
In the mean while, on 12.05.2011, it was coming to her
notice that, on 15.07.1988 itself, the above said suit was
dismissed for default. However, the plaintiff No.1 has
been in physical possession and enjoyment of the suit
land, as usual like earlier, without any interruption, from
any corner. Though the plaintiff No.1 has been in
possession and enjoyment of the suit land, the reasons
are best known to the revenue authorities only, they did
not care to show the name of plaintiff No.1, in the
possession column of pahanies, for the years from 1988-
89 to 1996-97. It appears that, the village patwari of
Thangallapalli revenue village, who was in enemical terms
with the plaintiff No.1 though she has been in physical
possession and enjoyment of the suit schedule A land, he
kept the possession column of the pahanies, as blank, for
the years from 1988-89 to 1996-97. Due to which on
05.10.1996, the plaintiff No.1 has made her application
with the District Collector, Karimnagar, with a request to
issue mutation proceedings, in her name in respect of suit
schedule A land in Sy.No.76 to the extent of Ac.2.32
guntas situated at Thangallapally village of Sircilla
Mandal, Karimnagar, as well as issue passbook and title
deed in her name. By responding to the above letter, the
then District Collector, Karimnagar was pleased to
forward the same to the M.R.O., Sircilla, for issuing of
ROR proceedings, as per the procedure as laid down in
the R.O.R. Act. By duly observing the procedure as laid
down under ROR Act, the then Mandal Revenue Officer,
Sircilla got validated the simple sale deed, dt.23.12.1964
and mutated the name of plaintiff No.1 vide Proceedings
No.1962/96 and her name was recorded in the mutation
register for the year 1997-98 and subsequently the
revenue authorities got issued pass book and title deeds,
by duly collecting stamp duty of Rs.150/- and registration
fee of Rs.50/- vide challan No.1789 and 1790
respectively, on 29.03.1997. By obtaining the pass book
and title deed, as usual like earlier, the plaintiff No.1 has
been cultivating the above said land without any
interruption from any corner.
17. The principle underlying Order IX Rule 9 is that no one
shall be vexed twice with the same cause of action and it is also a
settled law that this rule does not prohibit the plaintiff from
instituting a fresh suit on different cause of action as per the
principles laid down in Shivashankar Prasad Sah and another V.
Baikunth Nath Singh and others (4 supra) and Raj Kumar and
others V. Mutsaddi Lal and others . It is also a settled law that
dismissal of suit under Order IX Rule 8 of CPC bars fresh suit in
respect of the same cause of action. It is also a settled law that
the operation of this rule is confined to the cases where the
second suit is brought for the same subject and on the same
cause of action and it does not preclude fresh suit if a cause of
action is separate and distinct. While considering whether the
cause of action in the subsequent suit is or is not the same as the
cause of action in the previous suit, the test to be applied is are
the causes of action in the two suits in substance and not
technically identical as laid down in M/s. Parasram Harnand Rao
V. M/s. Shanti Parsad Narinder Kumar Jain and another . It is
also to be noted that as to the identity of cause of action one
workable test though not conclusive is whether the same evidence
would support the claim in both the suits and if the reply is
affirmative, a fresh suit will be barred and if it is negatived, a
fresh suit will lie. It is also settled law that the fact that the mode
of relief claimed in the subsequent suit is different than claimed
in the previous suit, it will not be a ground for refusing to apply
the bar of Order IX Rule 9 of CPC as held in Aziz Din V. Moti
Ram and others . At the same time, there is absolutely no dispute
with regard to the principles laid down in the judgments referred
to by the learned counsel for the respondents and in fact the
Court below had no occasion to deal with the same.
18. There is absolutely no dispute that both the suits are
eventually for the reliefs of declaration of title and injunction in
respect of the same subject property. The distinction is
subsequent developments and the relief pertaining to the revenue
entries. The instant application is for rejection of plaint under
Order VII Rule 11 (d) of CPC. It is the case of the petitioners
herein that in view of the provisions of Order IX Rule 9 of CPC
the present suit is barred, since the earlier suit i.e., O.S.No.195 of
1982 filed by the plaintiffs herein on the same foundation and
cause of action was dismissed for default. It is also the contention
of the learned counsel for the petitioners that the cause of action
referred to include any cause of action flowing from the main
cause of action.
19. A perusal of the order under revision shows that the
learned Senior Civil Judge, Siricilla, taking into consideration the
averments at page 9 of the plaint held that the objection is
unsustainable and in fact did not discuss in detail the basis and
foundation of the earlier suit and the cause of action set out
therein and the effect of dismissal of the said suit O.S.No.195 of
1982 and the impact of provisions of Order IX Rule 9 of CPC on
the present suit and the Court below had also no occasion to
consider the principles laid down on the issue in the above
referred judgments. In fact, no exercise was undertaken by the
Court below in the light of the principles laid down in the
authoritative pronouncements. Therefore, this Court, after
anxious and thoughtful consideration and taking into
consideration the totality of the circumstances deems it
appropriate to remand the matter for fresh consideration to the
Court below.
20. For the aforesaid reasons, this revision is allowed, setting
aside the order dated 31.07.2014 passed by the Court of the Senior
Civil Judge, Siricilla, in I.A.No.219 of 2014 in O.S.No.139 of 2013
and consequently the said I.A.No.219 of 2014 is remanded to the
Court of the Senior Civil Judge, Siricilla, Karimnagar District, for
fresh consideration in the light of the observations made supra
and in the light of the judgments referred to above after giving
opportunity of hearing to all the stakeholders within two months
from the date of receipt of a copy of this order.
21. Pending miscellaneous petitions, if any, shall stand
dismissed in consequence. No order as to costs.
________________
A.V.SESHA SAI, J
Date: April 16, 2015.
CIVIL REVISION PETITION No.3243 of 2014
16-04-2015
1. Yachamaneni Chandra Mohan Rao & another...Petitioners
1. Edmala Narsamma @ Narsavva & 28 others...Respondents
Counsel for Petitioners: Sri Bodduluri Srinivasa Rao
Counsel for Respondents 1 & 2: Sri N. Ashok Kumar
<GIST:
>HEAD NOTE:
? Cases referred
1. 2012 (6) ALD 36 (SC)
2. (2009) 1 Supreme Court Cases 689
3. AIR 1984 Orissa 187
4. AIR 1969 Supreme Court 971
5. AIR 1978 Punjab and Haryana 216
6. 2014 (2) ALD 149
7. AIR 1952 Punjab 190
8. (1980) 3 Supreme Court Cases 565
9. AIR 1926 Lahore 563
HONBLE SRI JUSTICE A.V. SESHA SAI
CIVIL REVISION PETITION No.3243 of 2014
Date: April 16, 2015
O R D E R:
The application which is the genesis for the present revision
filed under Article 227 of the Constitution of India is one under
Order VII Rule 11 of the Code of Civil Procedure (CPC). In the
present revision filed by the defendants 28 and 29 challenge is to
the order dated 31.07.2014 passed by the Court of the Senior Civil
Judge, Siricilla, dismissing I.A.No.219 of 2014 in O.S.No.139 of 2013.
2. The circumstances, leading to the filing of the instant
revision are as infra:
Respondents 1 and 2 herein instituted the above mentioned
suit against the petitioners and the other respondents herein for
declaration of title and declaration of registered sale deeds
standing in the name of the defendants as fraudulent, illegal, null
and void and for perpetual injunction and mandatory injunctions
in respect of the suit schedule property. In the said suit,
defendants 28 and 29, who are the petitioners herein, filed the
present I.A.No.219 of 2014 under the provisions of Order VII Rule
11 of CPC, praying the Court below to reject the plaint. Plaintiffs 1
and 2/respondents 1 and 2 herein opposed the said application by
filing counter-affidavit. The learned Senior Civil Judge, Siricilla, by
virtue of order dated 31.07.2014, dismissed the said application.
3. Calling in question the validity and the legal sustainability of
the said order passed by the learned Senior Civil Judge, Siricialla,
the present revision has been filed.
4. Heard Sri Bodduluri Srinivasa Rao, learned counsel for the
petitioners and Sri N. Ashok Kumar, learned counsel for
respondents 1 and 2 apart from perusing the material made
available before this Court.
5. Submissions/contentions of the learned counsel for the
petitioners:
(1) The order impugned in the instant revision is
erroneous, contrary to law and is opposed to the very
spirit and object of the provisions of Order VII Rule 11
and Order IX Rule 9 of CPC.
(2) The learned Judge failed to take into consideration the
contents of the affidavit filed in support of the
application and had the same been taken into
account, the order under challenge would not have
emanated.
(3) In view of the dismissal of O.S.No.195 of 1982 filed by
the plaintiffs/respondents herein for the same relief,
the present suit is hit by the provisions of Order IX
Rule 9 of CPC.
(4) The learned Judge ought to have taken into account
the aspect of filing of the present suit i.e., O.S.No.139
of 2013 based on the sale deed dated 23.12.1964 and
seeking possession in the year 2003 and should have
allowed the application.
6. Submissions/contentions of the learned counsel for the
respondents:
(1) The order under challenge is in conformity with the
provisions of Order VII Rule 11 of CPC.
(2) There is no illegality nor any material infirmity in the
order passed by the learned Senior Civil Judge,
Siricilla, and in the absence of the same, the present
revision is not maintainable and the petitioners herein
are not entitled for any relief from this Court under
Article 227 of the Constitution of India.
(3) The cause of action for instituting the present suit is
different from the cause of action for filing the earlier
suit i.e., O.S.No.195 of 1982 as such the petitioners
herein are not entitled for any relief.
(4) Since there are no ingredients of Order VII Rule 11 of
CPC in the case of the petitioners herein, the plaint
cannot be rejected.
(5) The application for partial rejection of plaint at the
instance of certain defendants only is not
maintainable.
7. In support of his submissions and contentions the learned
counsel for the respondents places reliance on the judgments in
Church of Christ Charitable Trust and Educational Charitable
Society V. Ponniamman Educational Trust ; State of Uttar Pradesh
V. Jagdish Sharan Agrawal ; Lingaraj Samantarayk and others V.
Sri Sidhabaladevjew ; Shivashankar Prasad Sah and another V.
Baikunth Nath Singh and others ; Manphool and others V. Surja
Ram and others and Kasani Narsimulu V. Sathagowni Srinivas
Goud and others .
8. In the above background, now the issues that emerge for
consideration of this Court in the present revision are:
(1) Whether the order under revision is in
conformity with the provisions of Order VII
Rule 11 of CPC?
(2) Whether the order impugned warrants any
interference of this Court under Article 227 of
the Constitution of India?
9. The provisions of law which are germane and relevant for
the purpose of consideration of the issues involved in the present
revision are Order VII Rule 11 and Order IX Rules 8 and 9 of CPC
which read as under:
Order VII Rule 11 of CPC:
Rejection 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-
paper 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 for correcting the valuation or supplying
the requisite stamp-paper, 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.]
Order IX Rules 8 and 9 of CPC:
8. Procedure where defendant only appears:---
Where the defendant appears and the plaintiff does
not appear when the suit is called on for hearing, the
Court shall make an order that the suit be dismissed,
unless the defendant admits the claim, or part thereof,
in which case the Court shall pass a decree against
the defendant upon such admission, and, where part
only of the claim has been admitted, shall dismiss the
suit so far as it relates to the remainder.
9. Decree against plaintiff by default bars fresh
suit.--- (1) Where a suit is wholly or partly dismissed
under rule 8, the plaintiff shall be precluded from
bringing a fresh suit in respect of the same cause of
action. But he may apply for an order to set the
dismissal aside, and if he satisfies the Court that there
was sufficient cause for his non-appearance when the
suit was called on for hearing, the Court shall make
an order setting aside the dismissal upon such terms
as to costs or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit.
(2)No order shall be made under this rule
unless notice of the application has been served on
the opposite party.
10. Under the provisions of Order VII Rule 11 of CPC, courts are
authorized and empowered to reject plaints. Since this is a
drastic remedy provided by the Code to non-suit the parties at
threshold, the said power is required to be exercised with great
amount of care, caution and circumspection and the same shall
not be used in a routine and mechanical manner. It is settled law
that when a serious dispute is raised by the parties with regard to
the cause of action and limitation as to the dispute the same is to
be resolved only after framing the issue and conducting trial on
the said aspect, but not by rejecting the plaint. It is also a settled
principle of law that while examining the application filed under
Rule 10 or Rule 11 of Order VII, the Court has to take the
averments in the plaint on their face value and the plaint cannot
be rejected on the basis of written statement or the application
filed under the said provisions of Order 7 Rule 11 of CPC. Unless
a party applying for thoroughly and completely satisfies the Court
and proves the existence of necessary ingredients of law, the
exercise of the power under these provisions is impermissible to
the Court.
11. The issues in the present case are required to be examined
in the light of the above aspect. In the instant revision it is the
contention of the learned counsel for the petitioners that the
objection of the petitioners squarely falls under Order VII Rule 11
of CPC and the plaint is liable to be rejected in view of the
mandatory provisions of Order IX Rule 9 of CPC. While
elaborating the same, it is contended by the learned counsel that
as the earlier suit, O.S.No.195 of 1982, filed by the same plaintiffs
on the same foundation was dismissed for default and no steps
were taken for getting the same restored, the present suit filed on
the same basis cannot be permitted to be prosecuted in the teeth
of provisions of Order IX Rule 9 of CPC.
12. On the contrary, it is the case of the plaintiffs/respondents
herein that since the cause of action which compelled them to file
the instant suit is different from the cause of action in O.S.No.195
of 1982, the said provisions of law cannot be pressed into service
for non-suiting them.
13. In order to appreciate the same, this Court finds it
appropriate to refer to the provisions of Order IX Rules 8 and 9
of CPC. According to Order IX Rule 8 of CPC where the
defendant appears and the plaintiff does not appear when the suit
is called on for hearing, the Court shall make an order that the
suit be dismissed, unless the defendant admits the claim, or part
thereof. As per Rule 9 of Order IX of CPC where a suit is wholly
or partly dismissed under Rule 8, the plaintiff shall be precluded
from bringing a fresh suit in respect of the same cause of action.
But he may apply for an order to set the dismissal aside.
Therefore, it is evident from the above provisions of law that
when a suit is dismissed for default due to non-appearance of the
plaintiff, the second suit on the same cause of action is not
maintainable and is barred.
14. At this juncture, it may be appropriate to extract paragraph
5 of the plaint in O.S.No.195 of 1982 which dealt with the cause of
action. The said paragraph reads as under:
That the cause of action arose to the plaintiffs to
institute this suit against the defendants on 5.9.1982 at
Tangallapalli village of Sircilla taluk when the defendants
came to the suit land and interfered with the possession
of the plaintiffs over the suit land and withstanding
green and black gram crops.
It may also be appropriate to extract paragraph 3 of the plaint in
O.S.No.195 of 1982 which reads as under:
That the plaintiffs are owners, possessors,
enjoyers and cultivators of the dry land bearing S.No.76
measuring 5A-24G situated at Tangallapalli Village of
Sircilla taluk, (herein after called the suit property).
The suit land was purchased by the plaintiff No.1s father
Edamala Bhuchi Ramaiah and the plaintiff No.2 jointly
from the defendants and other shareholders on
23.12.1954 for a consideration of rs.1,500/- executing on
stamped sale deed worth of Rs.1.50 p. That the
plaintiffs are in possession and enjoyment of the suit
land since the date of purchase by paying land revenue
regularly. The said stamped sale deed dated 23.12.1954
got impounded and certified by the Revenue Divisional
Officer, Jagtial vide his proceeding No.F/3667/82 dated
17.08.1982. The plaintiff No.1s father and the plaintiff
No.2 are in possession and enjoyment of the suit land
continuously and after the death of plaintiff No.1s
father, the plaintiff No.1 and the plaintiff No.2 are in
the continuous possession and their names were also
recorded in the revenue records for the years 1964-65,
1965-66, 1966-67, 1967-68, 1970-71, 1976-77, 1977-78,
1980-81 and 1981-82 and the certified copies of pahani
patrikas for the said years in respect of the suit land are
filed herewith. The plaintiffs were also issued LR
receipts for the years from 1970-71 to 1981-82
contained in the ryot pass is enclosed herewith. The
plaintiffs were also issued record of right, ryot pass
books by the Tahsil Officer, Sircilla, are also enclosing
herewith. Thus the plaintiffs are the absolute owners,
possessors, enjoyers and cultivators of the suit land by
paying land revenue regularly. That the defendants have
no rights whatsoever the suit land.
15. In the present suit i.e., O.S.No.139 of 2013 paragraph 4 of
the plaint deals with cause of action and it reads as under:
Cause of action arose to the suit, on 23.12.1964,
when the fathers/grandfathers of defendants 1 to 24
got executed simple sale deed in favour of Edmala Budhi
Ramaiah and Mallaiah, in respect of land, in Sy.No.76, to
the extent of Ac.5.24 guntas, on 19.12.1966, when Budhi
Ramaiah got executed Will deed in favour of plaintiff
No.1, on 17.8.1982, when the simple sale deed got
impounded, on 05.09.1982, when the
fathers/grandfathers of defendants 1 to 24 got
interfered in to suit land and a suit, in O.S.No.195 of
1982 was filed and on 15.07.1988, when the suit was
dismissed for default, on 05.09.1996, when the Mandal
Revenue Officer, Sircilla got mutated the name of
plaintiff No.1, by entering the same in the mutation
register, for the year 1996-97, vide Proceedings
No.1962/1996, on 02.09.1995, when the defendant No.25
got obtained regd. Sale deed, on 30.03.1996, when the
defendants 26 and 27 got obtained regd. Sale deed, vide
Document No.833/1996 from the other batch of Lingam
Pedda Yellaiah, s/o Lasmaiah and others, on 01.4.1996,
when the same defendants 26 and 27 got obtained regd.
Sale deed, vide Document No.846/1996, on 25.04.1997,
when the defendants 26 and 27 ------- revenue appeal
before R.D.O., Sircilla and on the R.D.O., Sircilla, without
mentioning the date of orders, pronounced the judgment,
by setting aside the orders of M.R.O., Sircilla, on
25.11.2002, when the plaintiff No.1 has preferred
revision petition before District Collector, Karimnagar, on
25.07.2005, when the District Collector (ROR),
Karimnagar was pleased to remand the matter to the
Mandal Revenue Officer, Sircilla, for conducting of
DENOVA enquiry, vide Revision Petition
No.D1/7329/1999, on 25.02.2006, when Mandal Revenue
Officer, Sircilla, by conducting DENOVA enquiry, by
elaborately discussing the rights of the contesting
parties got confirmed the earlier orders, vide
Proceedings No.B/679/2005, on 27.01.2007, when the
defendant No.26 got preferred second appeal before
Revenue Divisional Officer, Sircilla, vide Appeal
No.D/60/2007, on 17.01.2011, when the Revenue
Divisional Officer, Sircilla, without appreciating the
DENOVA enquiry of M.R.O., Sircilla was allowed the
appeal, on .02.2011, when the plaintiff No.1 has
preferred revision petition, vide Revision Petition
No.D1/602/2011, before Joint Collector, Karimnagar and
during the pendency of revision petition, on 23.06.2011,
the Mandal Revenue Officer, Sircilla, without taking into
consideration of the pending of revision petition as well
as pending of stay application got ordered, for mutation
of the names of defendants 27 to 29, in respect of suit
land, in Sy.No.76 to the extent of Ac.1.16 guntas, in the
name of defendant No.26; Ac.1.10 guntas in the name of
defendant No.27; Ac.1.14 guntas each in the names of
defendants 28 and 29, for the pahanies from 2009-2010,
2010-2011, 2011-12 and 2012-13 though the plaintiff No.1
has been in physical possession and enjoyment of the suit
land, on 05.01.2013, when the Joint Collector, Karimnagar
got dismissed the revision petition and against which on
writ petition No.18270/2013 has filed and the same is
pending, before Honble High Court of Judicature of A.P.,
at Hyderabad, on 28.7.2013, in spite of pending of the
writ petition, by denying the title of the plaintiff No.1,
the defendants 26 to 29 came to the suit land with an
intention to convert the suit land into residential plots,
with an intention to alienate the same with the sole
intention to deprive the legitimate right of plaintiff No.1
in respect of the suit property.
16. Paragraph 1 of the plaint narrates the circumstances leading
to the dismissal of earlier O.S.No.195 of 1982 and to the extent of
relevancy, the pleadings read as under:
By taking into consideration of the enjoyment of
the plaintiff No.1 on the spot, the revenue authorities
got recorded the name of plaintiff No.1, as possessor to
the extent of Ac.2.32 guntas, in Sy.No.76, in the pahani,
for the year 1981-82. While it was so, in the month of
September, 1982, some of the vendors of the father of
plaintiff No.1 got interfered into the suit land, due to
which, she along with her paternal uncle got filed a suit
for declaration of title and perpetual injunction, in
O.S.No.195 of 1982, on the file of District Munsiff, at
Sircilla, against 1) Lingam Ellaiah, 2) Lingam Chandraiah,
3) Longam Rajaiah, 4) Longam Balaiah, 5) Longam Kotaiah,
6) Longam Lasumaiah and 7) Longam Narsaiah and in the
mean while, due to the intervention of the elders, they
had repented for their illegal acts and assured the
plaintiff No.1 that, they would not interfere into suit land
and got compromised with the plaintiff No.1 and her
junior paternal uncle, in respect of the suit land and due
to which, they did not proceed with the suit and
moreover, from the beginning Edmala Mallaiah, the junior
paternal uncle was only dealing with the said suit, since he
only engaged advocate and briefed the case, as such, she
did not enquire, so as to know, what happened to her suit.
In the mean while, on 12.05.2011, it was coming to her
notice that, on 15.07.1988 itself, the above said suit was
dismissed for default. However, the plaintiff No.1 has
been in physical possession and enjoyment of the suit
land, as usual like earlier, without any interruption, from
any corner. Though the plaintiff No.1 has been in
possession and enjoyment of the suit land, the reasons
are best known to the revenue authorities only, they did
not care to show the name of plaintiff No.1, in the
possession column of pahanies, for the years from 1988-
89 to 1996-97. It appears that, the village patwari of
Thangallapalli revenue village, who was in enemical terms
with the plaintiff No.1 though she has been in physical
possession and enjoyment of the suit schedule A land, he
kept the possession column of the pahanies, as blank, for
the years from 1988-89 to 1996-97. Due to which on
05.10.1996, the plaintiff No.1 has made her application
with the District Collector, Karimnagar, with a request to
issue mutation proceedings, in her name in respect of suit
schedule A land in Sy.No.76 to the extent of Ac.2.32
guntas situated at Thangallapally village of Sircilla
Mandal, Karimnagar, as well as issue passbook and title
deed in her name. By responding to the above letter, the
then District Collector, Karimnagar was pleased to
forward the same to the M.R.O., Sircilla, for issuing of
ROR proceedings, as per the procedure as laid down in
the R.O.R. Act. By duly observing the procedure as laid
down under ROR Act, the then Mandal Revenue Officer,
Sircilla got validated the simple sale deed, dt.23.12.1964
and mutated the name of plaintiff No.1 vide Proceedings
No.1962/96 and her name was recorded in the mutation
register for the year 1997-98 and subsequently the
revenue authorities got issued pass book and title deeds,
by duly collecting stamp duty of Rs.150/- and registration
fee of Rs.50/- vide challan No.1789 and 1790
respectively, on 29.03.1997. By obtaining the pass book
and title deed, as usual like earlier, the plaintiff No.1 has
been cultivating the above said land without any
interruption from any corner.
17. The principle underlying Order IX Rule 9 is that no one
shall be vexed twice with the same cause of action and it is also a
settled law that this rule does not prohibit the plaintiff from
instituting a fresh suit on different cause of action as per the
principles laid down in Shivashankar Prasad Sah and another V.
Baikunth Nath Singh and others (4 supra) and Raj Kumar and
others V. Mutsaddi Lal and others . It is also a settled law that
dismissal of suit under Order IX Rule 8 of CPC bars fresh suit in
respect of the same cause of action. It is also a settled law that
the operation of this rule is confined to the cases where the
second suit is brought for the same subject and on the same
cause of action and it does not preclude fresh suit if a cause of
action is separate and distinct. While considering whether the
cause of action in the subsequent suit is or is not the same as the
cause of action in the previous suit, the test to be applied is are
the causes of action in the two suits in substance and not
technically identical as laid down in M/s. Parasram Harnand Rao
V. M/s. Shanti Parsad Narinder Kumar Jain and another . It is
also to be noted that as to the identity of cause of action one
workable test though not conclusive is whether the same evidence
would support the claim in both the suits and if the reply is
affirmative, a fresh suit will be barred and if it is negatived, a
fresh suit will lie. It is also settled law that the fact that the mode
of relief claimed in the subsequent suit is different than claimed
in the previous suit, it will not be a ground for refusing to apply
the bar of Order IX Rule 9 of CPC as held in Aziz Din V. Moti
Ram and others . At the same time, there is absolutely no dispute
with regard to the principles laid down in the judgments referred
to by the learned counsel for the respondents and in fact the
Court below had no occasion to deal with the same.
18. There is absolutely no dispute that both the suits are
eventually for the reliefs of declaration of title and injunction in
respect of the same subject property. The distinction is
subsequent developments and the relief pertaining to the revenue
entries. The instant application is for rejection of plaint under
Order VII Rule 11 (d) of CPC. It is the case of the petitioners
herein that in view of the provisions of Order IX Rule 9 of CPC
the present suit is barred, since the earlier suit i.e., O.S.No.195 of
1982 filed by the plaintiffs herein on the same foundation and
cause of action was dismissed for default. It is also the contention
of the learned counsel for the petitioners that the cause of action
referred to include any cause of action flowing from the main
cause of action.
19. A perusal of the order under revision shows that the
learned Senior Civil Judge, Siricilla, taking into consideration the
averments at page 9 of the plaint held that the objection is
unsustainable and in fact did not discuss in detail the basis and
foundation of the earlier suit and the cause of action set out
therein and the effect of dismissal of the said suit O.S.No.195 of
1982 and the impact of provisions of Order IX Rule 9 of CPC on
the present suit and the Court below had also no occasion to
consider the principles laid down on the issue in the above
referred judgments. In fact, no exercise was undertaken by the
Court below in the light of the principles laid down in the
authoritative pronouncements. Therefore, this Court, after
anxious and thoughtful consideration and taking into
consideration the totality of the circumstances deems it
appropriate to remand the matter for fresh consideration to the
Court below.
20. For the aforesaid reasons, this revision is allowed, setting
aside the order dated 31.07.2014 passed by the Court of the Senior
Civil Judge, Siricilla, in I.A.No.219 of 2014 in O.S.No.139 of 2013
and consequently the said I.A.No.219 of 2014 is remanded to the
Court of the Senior Civil Judge, Siricilla, Karimnagar District, for
fresh consideration in the light of the observations made supra
and in the light of the judgments referred to above after giving
opportunity of hearing to all the stakeholders within two months
from the date of receipt of a copy of this order.
21. Pending miscellaneous petitions, if any, shall stand
dismissed in consequence. No order as to costs.
________________
A.V.SESHA SAI, J
Date: April 16, 2015.
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