THE HONOURABLE SRI JUSTICE A.V.SESHA SAI
CIVIL REVISION PETITION No.1872 of 2014
20-02-2015
Emundla Lingaiah..Petitioner
Kokkula alias Burra Narsavva and others.. Respondents
Counsel for the Petitioner : Sri P.V. Narayana Rao.
Counsel for Respondent No.1: Sri V.V.Ramana Rao.
Counsel for Respondent No.3: Sri Pulla Karthik.
Counsel for Respondents 4 to 7: --
<Gist :
>Head Note:
?Cases referred:
(1977) 4 SCC 467
2 2007 (5) ALD 565
3 2014(4) ALD 63 (SC)
4 AIR 1974 PATNA 153
5 2007(6) ALD 388 (DB)
6 2013 (5) ALD 439 (DB)
7 2013(5) ALD 72
THE HONOURABLE SRI JUSTICE A.V.SESHA SAI
CIVIL REVISION PETITION No.1872 of 2014
ORDER
Defendant No.2 in O.S.No.740 of 2004 on the file of the Court
of Principal Junior Civil Judge at Karimnagar, is the petitioner in the
present revision filed under Article 227 of the Constitution of India.
This revision assails the order dated 24.04.2014, passed by the said
Court, dismissing I.A.No.1827 of 2012 filed by the petitioner under
Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter
called the Code).
2. The facts and circumstances, in nutshell, leading to the filing
of the present revision are as under;
First respondent herein instituted O.S.No.740 of 2004 on the
file of the Court of Principal Junior Civil Judge at Karimnagar, for
perpetual injunction. In the said suit, second defendant filed
I.A.No.1827 of 2012 under Order VII Rule 11 of the Code, seeking
rejection of the plaint on the ground of absence of cause of action.
The plaintiff/respondent herein filed a counter, resisting the said
application. The learned Principal Junior Civil Judge, by virtue of an
order, dated 24.04.2014, dismissed the said application. This
revision challenges the said order.
3. Heard Sri P.V.Narayana Rao, learned counsel for the
petitioner and Sri V.V.Ramana Rao, learned counsel for the first
respondent apart from perusing the material available before this
Court.
4. Contentions/submissions of the learned counsel for the
petitioner are;
(i) The order under revision is erroneous, contrary to law and is
opposed to the very spirit and object of the provisions of Order VII
Rule 11 of the Code;
(ii) Since no cause of action is available to the plaintiff for
prosecuting the suit further, the learned Judge ought to have
allowed the application by rejecting the plaint;
(iii) In view of the filing of I.A.No.3167 of 2007 under Order VI
Rule 17 of the Code and the order passed thereon and the order
of this Court in C.R.P.No.3913 of 2008, the cause does not
survive for the plaintiff to further prosecute the suit;
(iv) The order in C.R.P.No.3913 of 2008 operates as res judicata
as it is an order passed by this Court under Article 227 of the
Constitution of India;
(v) Plaintiff/first respondent has to file a suit for partition and
cannot proceed further with the present suit as per Section 8 of
Hindu Succession Act, 1956.
5. To bolster his submissions and contentions, learned counsel
for the petitioner places reliance on the decisions reported in
T.ARIVANDANDAM v. T.V.SATYAPAL ; PRATHIBHA v.
VEDVATHI ; SOUMIK SIL v. SUBHAS CHANDRA SIL ;
RAMSARUP DASS v. PYARE DAS ; and GADIYARAM
PADMAVATHI v. ADDEPALLI HANUMANTHA RAO .
6. Contentions/submissions of the learned counsel for the first
respondent/plaintiff are;
(i) The order impugned is in accordance with the provisions of Order
VII Rule 11 of the Code;
(ii) There is no illegality nor there is any jurisdictional error in the
impugned order, as such, the present revision is not maintainable
under Article 227 of the Constitution of India;
(iii) The present application is also liable to be dismissed on the
ground of delay and no plausible explanation is forthcoming for the
abnormal delay in filing the application under Order VII Rule 11 of
the Code;
(iv) As per Order VII Rule 11 of the Code, the averments in the plaint
alone need to be taken into consideration, but not the defence set up
by the defendants;
(v) Since the plaint discloses the cause of action, the plaint cannot
be rejected at threshold and the plaintiff filed title deeds and
pahanies, as such, he is entitled to prosecute the suit on merits;
(vi) Res judicata is not a ground for rejection of plaint under Order
VII Rule 11 of the Code;
(vii) judgments cited by the learned counsel for the petitioner are not
relevant to the facts and circumstances of the case.
7. In support of his submissions and contentions, learned
counsel for the first respondent takes the support of the judgments
reported in REEMANA KAUSHIK v. SHOBHIT KAUSHIK ; and
SYED ALI v. SYED NOOR MOHAMMED .
8. In the above background, now the issues, which this Court is
called upon to answer in the present revision, are;
(i) Whether the order under revision is in accordance with the
provisions of Order VII Rule 11 of the Code?
(ii) Whether the order under revision warrants any interference of
this Court under Article 227 of the Constitution of India?
9. In order to appreciate the rival contentions and for arriving at a
just and reasonable conclusion, it may be opt and appropriate to
refer to the provisions of Order VII Rule 11 of the Code, which reads
as under;
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 the 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.
From a plain reading of the above provision of law, it is quite limpid
that only under the conditions and contingencies as stipulated under
Clause (a) to (f) of Rule 11 of Order VII of the Code, plaint can be
rejected. Since this provision of law empowers the Court to non-suit
a party at threshold, strict compliance of the ingredients is
mandatory and this power is required to be utilized and made use of
very sparingly and with great care, caution and circumspection.
Unless the party applying for thoroughly and completely satisfies and
proves the existence of necessary ingredients of law, the exercise of
power under these provisions of law is impermissible to the Court.
The issue in the present revision is required to be examined in the
light of these aspects.
10. As per the plaint presented by the first respondent herein, the
petitioner is the owner and possessor of the agricultural lands,
admeasuring Ac.1.17 gts in Sy.Nos.358/A and 371/C situated at
Velichala Village, Ramadugu Mandal, Karimnagar District and that
suit lands are compact lands and that the plaintiff and the first
respondent are the natural sisters and in the partition, plaintiff was
given the suit lands and that the mother of the plaintiff and the first
defendant relinquished their rights in the suit lands and the revenue
records are in the name of the plaintiff, and in view of the hike in the
value of the lands, the first defendant in collusion with defendants 2
and 3 hatched a plan to occupy the land and without any manner of
right, the defendants tried to dispossess the plaintiff from the lands.
11. Earlier, the first respondent/plaintiff filed I.A.No.3167 of 2007
under Order VI Rule 17 of the Code seeking amendment of the main
relief portion to the following effect;
Therefore it is just and necessary that an order is passed
permitting me to amend the suit by adding relieves in claim
portion, court fee para No.3 and prayer portion in addition to main
relief of perpetual injunction as under:
(i) for recovery of possession of land measuring 1331 sq.
yards in Sy.No.358/A and for declaration that the registered sale
deed document No.1155/04 dated 16.08.2004 executed by
defendant No.1 in favour of defendant No.3 in respect of land
measuring 1331 sq. yards in Sy.No.358/A and another registered
sale deed No.1032/04 dated 26.07.2007 executed by defendant
No.1 in favour of defendant No.2 in respect of land measuring 605
sq. yards in suit Sy.No.358/A are null and void and not binding on
the plaintiff in claim portion at its end
(ii) The value of land to an extent of 1331 sq. yards which
is sought to be recovered is Rs.66,550/- and 3/4th of it is
Rs.49,912/- and upon which a Court Fee of Rs.2,386/-is paid
u/s.29 of APCF and SV Act and the value of relief of declaration
that the registered documents for which they were executed as
null and void and not binding is fixed at Rs.3,000/- each i.e., total
Rs.6,000/- and upon which a court fee of Rs.261/-each i.e., total
Rs.522/-is paid u/s.26(d) of APCF and SV Act and total of
Rs.2,908/- is paid in SBH Court Complex, Karimnagar through
challan in para No.8 as its end and
(iii) to pass judgment and decree for recovery of
possession of land to an extent of 1331 sq. yards in Sy.No.358/A
against defendant No.3
iv) to pass judgment and decree for declaration that the
registered sale deed document No.1155/04 dated 16.08.2004
executed by defendant No.1 in favour of defendant No.3 in
respect of land to an extent of 1331 sq. yards in suit Sy.No.358/A
and a registered sale deed No.1032/04 dated 26.07.2004
executed by defendant No.1 in favour of defendant No.2 in
respect of land admeasuring 605 sq.yards out of suit Sy.No.358/A
are null and void and not binding on the plaintiff in prayer portion
at the end and permit me to amend consequential amendments.
12. In the affidavit filed in support of the said I.A.No.3167 of 2007,
the plaintiff stated that while the order of injunction was in force,
defendants 3 and 4 to 7 raised a temporary shed in the suit land
illegally. The learned Principal Junior Civil Judge, by way of an
order dated 17.07.2008, dismissed the said application. Assailing
the said order, plaintiff filed C.R.P.No.3913 of 2008. In the said
order, this Court in the penultimate paragraph observed that when
first respondent in her written statement took a plea that the suit
schedule property belongs to her and she sold away the same to
defendants 2 and 3 through registered sale deeds dated 20.04.2004
and 26.07.2004, no steps have been taken by the revision petitioner
and this Court also observed that in the event of the proposed
amendment being permitted, the same would go beyond the scope
of the suit and would change the nature of the suit. While referring
to the said observations made by this Court, filing of I.A.No.3167 of
2007 and dismissal of the same and the confirmation of the same by
this Court, it is the case of the petitioner that there is no cause of
action for the petitioner and the order of this Court in the said
revision operates as res judicata. Now, these contentions are
required to be considered in the light of the judgments cited by the
learned Advocates.
13. In T. ARIVANDANDAMs case (1 supra), the Apex Court held
as under;
We have not the slightest hesitation in condemning the
petitioner for the gross abuse of the process of the Court
repeatedly and unrepentenly resorted to. From the statement of
the facts found in the judgment of the High Court, it is perfectly
plain that the suit now pending before the First Munsifs Court,
Bangalore, is a flagrant misuse of the mercies of the law in
receiving plaints. The learned Munsif must remember that if on a
meaningful-not-formal-reading of the plaint it is manifestly
vexatious, and meritless, in the sense of not disclosing a clear
right to sue, he should exercise his power under Order VII, Rule
11 CPC, taking care to see that the ground mentioned therein is
fulfilled. And, if clever drafting has created the illusion of a cause
of action, nip it in the bud at the first hearing by examining the
party searchingly under Order X CPC. An activist Judge is the
answer to irresponsible law suits. The trial Courts would insist
imperatively on examining the party at the first hearing so that
bogus litigation can be shot down at the earliest stage. The Penal
Code is also resourceful enough to meet such men, (Cr.XI) and
must be triggered against them. In this case, the learned Judge to
his cost realized what George Bernard Shaw remarked on the
assassination of Mahatma Gandhi:
It is dangerous to be too good
We regret the infliction of the ordeal upon the learned
Judge of the High Court by a callous party. We more than regret
the circumstance that the party concerned has been able to
prevail upon one lawyer or the other to present to the Court a case
which was disingenuous or worse. It may be a valuable
contribution to the cause of justice if counsel screen wholly
fraudulent and frivolous litigation refusing to be beguiled by
dubious clients. And remembering that an advocate is an officer
of justice he owes it to society not to collaborate in shady actions.
The Bar Council of India, we hope will activate this obligation. We
are constrained to make these observations and hope that the co-
opertaion of the Bar will be readily forthcoming to the Bench for
spending judicial time on worthwhile disputes and avoiding the
distraction of sham litigation such as the one we are disposing of.
Another moral of this unrighteous chain litigation is the gullible
grant of ex parte orders tempts gamblers in litigation into easy
courts. A judge who succumbs to ex parte pressure is unmerited
cases helps devalue the judicial process. We must appreciate Shri
Ramasesh for his young candour and correct advocacy
In PRATHIBHAs case (2 supra) this Court held as under;
The real object of Order VII Rule 11 of CPC is to keep out
of Courts irresponsible law suits. Therefore, the Order 10 of the
Code is a tool in the hands of the Courts by resorting to which and
by searching examination of the party in case the Court is prima
facie of the view that the suit is an abuse of the process of the
Court in the sense that it is a bogus and irresponsible litigation,
the jurisdiction under Order 7 Rule 11 of the Code can be
exercised.
In SOUMIK SILs case (3 supra) the Apex Court held as under;
After perusing the order passed by the High Court and the
reasoning given therein, it appears to us that the High Court has
correctly perused the plaint in its entirety and after deletion of the
name plaintiff No.1 from the said title suit, held that the plaint
discloses no cause of action after taking into account the fact that
the very purpose of the suit has become infructuous in view of the
order passed by the High Court to handover the possession of the
rooms in question. Therefore, the foundation of the suit was not
subsisting after the handing over of possession to the defendant
by plaintiff No.1 in terms of the order. Hence, in these
circumstances, the High Court held that the plaint discloses no
cause of action.
In RAMSARUP DASSs case (4 supra) it was held as under;
Learned counsel, however, submitted that the revisional
jurisdiction of the High Court was an extraordinary jurisdiction and,
therefore, any decision given by this Court in exercise of the
revisional powers would not amount to res judicata for entertaining
the same objection or ground in a regular appeal. It is difficult to
accept this contention. Learned counsel referrred to the decision
of the Supreme Court in Satyadhvan Ghosal v. Smt Deorajin Debi
AIR 1960 SC 941. In that case, however, the facts were entirely
different. The Supreme Court was considering the scope of
Section 105(2) of the Code of Civil Procedure and it was held that
a special provision was made as regards orders of remand and
that was to the effect that if an appeal lay and still the appeal was
not taken, the correctness of the order of remand could not later
be challenged in an appeal from the final decision. If however an
appeal did not lie from the order of remand, the correctness
thereof could be challenged by an appeal from the final decision.
In that case, an order of remand was made by the Calcutta High
Court in exercise of its revisional power under Section 115 of the
Code of Civil Procedure. It was observed by the Supreme Court
after referring to the various decisions of the Privy Council that the
order of remand was an interlocutory order and did not purport to
dispose of the case, and a party was not bound to appeal against
every interlocutory order which was a step in the procedure that
leads up to a final decision and as such the correctness of the
same could be challenged in an appeal from the final order. It was
specifically held in that case that the order of the Calcutta High
Court was not appealable to the Supreme Court and, therefore,
the bar under sub-section (2) of Section 105 of the Code of Civil
Procedure was not attracted. The Supreme Court, accordingly,
set aside the order of the Calcutta High Court. In my opinion, the
decision of the Supreme Court in the above case is of no
assistance to the appellants. In this very decision, the Supreme
Court has laid the foundation for applying the principles of res
judicata. In paragraph 8 of the report, their Lordships have clearly
observed that the principle of 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 re-agitate
the matter again at a subsequent stage of the same proceedings.
In view of the aforesaid decisions of the Supreme Court, it
is no necessary for me to advert to any other authority. But suffice
it to state that a similar view has been taken by the Punjab High
Court in Balkrishan Dass v. Parmeshri Dass, AIR 1963 Punj 187
and by a Full Bench (sic) of the Madhya Pradesh High Court in
Shyamacharan Raghubar Prasad v. Sheojee Bhai Jairam Chattri
AIR 1964 Madh Pra 288. I am in respectful agreement with the
views expressed by the Punjab and Madhya Pradesh High Courts.
In view of the binding effect of the decisions of the Supreme Court
referred to above, I am of the definite view that the contention
raised by Mr. Prem Lall that the decision in Civil Revision No.1025
of 1968 will not amount to a res judicata in this appeal has got no
substance.
In GADIYARAM PADMAVATHIs case (5 supra), this Court held as
under;
From a conjoint reading of the judgments of the apex
Court in Liverpool and Londons case and R. ARivandanandams
case (supra), it is clear that a plaint can be rejected if it is
manifestly vexatious and meritless in the sense of not disclosing a
clear right to sue and by way of clever drafting, an illusory cause
of action has been created to institute a suit. Such a suit should be
thrashed out at the outset instead of subjecting the other party to
unnecessary hardship and lying unnecessary burden of
conducting trial by the Courts or if it is perceptible that the party,
who instituted the suit, is apparently found to be having an
intention to cause undue loss for other party and gain undue
advantage for self.
The scope of Order VII Rule 11 CPC, which has been
interpreted by the apex Court time and again, may not be in strict
terms of Order VII Rule 11 CPC. But, it is obvious from the
interpretations made by the apex Court that in order to slash
unnecessary litigation or an artificial litigation for an undue gain,
the same should be treated as an abuse and the Court is vested
with the power to curtail such a litigation.
At this juncture, we may also point out that not only
depending upon the various facts and circumstances but also
keeping in view the trend of the litigation, which is on increasing
side, for various reasons should be dissuaded from being initiated
if no substantial cause action to try the suit. This would enable the
Court from avoiding any unnecessary expenditure of time and
money not only of the Court but also the parties to the litigation.
Therefore, whenever the Court found that there is an apparent
reason on record i.e., the plaint and the relevant material filed
along with it that there is no real cause of action, the same can be
decided as almost a preliminary question.
It is also well settled law that rejection of a suit can be
sought for at any time during the pendency of the suit and no
material except the plaint averments and the supporting
documents can be gone into while exercising the power under
Order VII Rule 11 CPC.
Virtually in the present plaint, the plaintiffs are going hot
and cold. On one hand, they are seriously disputing the Will,
dated 14.02.1975, said to have been executed by late GVN
Murthy in favour of their deceased aunt Vedavathi and on the
other, they are claiming rights by way of succession without
impeaching the said Will. Therefore, the contentions of this
nature, obviously, are incompatible.
Even if the relief sought in the plaint i.e., partition is
granted in favour of the plaintiffs, the effect of the Will, dated
14.02.1975, and the rights that flowed out of the said Will
executed by late GVN Murthy in favour of Smt Vedavathi would
remain the same, which would run contrary to the decision if
rendered in favour of the plaintiffs. We are of the view that this
situation is something absurd.
Therefore, we have to hold that filing a suit after more than
three decades for this relief cannot be accepted and the conduct
of the plaintiffs in this regard cannot be appreciated, and the
consequential litigation has to be dissuaded from progressing any
further, which is one among the main objects of the provisions of
Order VI Rule 11 CPC.
14. Coming to the judgments cited by the learned counsel for the
first respondent, in REEMANA KAUSHIKs case (6 supra), this
Court held as under;
In the context of dealing with an application under Rule 11
of Order 7 CPC, the Court has to take the pleadings in the plaint
or the O.P., as the case may be, on their face value. Even if there
is any dispute, that needs to be resolved after trial. It is only when
the contents of the plaint or O.P. are taken on their face value and
still they do not constitute cause of action or the suit or the O.P.
becomes barred by law, that the application filed under that
provision can be allowed.
In SYED ALIs case (7 supra) it was held as under;
Rule 11 of Order Vii CPC, provides for an exceptional
remedy to the defendant in a suit, to get the proceedings
terminated without the necessity of trial. In the ordinary course of
things, once a suit is filed, the issues are to be framed on the
basis of pleadings and the Court has to determine the issues, after
conducting trial and it is thus the suit comes to be terminated, with
a decree on merits. The facility created under Rule 11 of Order
VII CPC is that, if the grounds mentioned therein are attracted, in
a given case, the plaint can be rejected, and thereby, the
necessity to undertake trial is obviated. The provision reads:
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 the 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.
From a perusal of this, it is evident that res judicata is not
mentioned as a ground for rejection of plaint.
Section 11 of CPC is devoted to define the concept of res
judicata. The Legislature, which claborated the principle of res
judicata in minute detail in Section 11, did not choose to treat it as
a ground for rejection of plaint, and obviously for that reason, it
was not included in Rule 11 of Order VII CPC. The reason is not
difficult to discern.
In a suit, the relief of comprehensive nature is prayed for. It
is in relation to the relief, and based upon the pleading, that
several issues are framed in a suit. The result of a suit would
depend upon the answer to various issues. Even if one or few
issues are answered against the plaintiff, there may be
circumstances where the suit can still be decreed, on the basis of
finding on the other issues.
The starting sentence of Section 11 CPC makes it clear
that the provision deals with the determination of issues in a suit,
and not the result thereof. What Section 11 prohibits is, raising of
issues in a subsequent suit, in case they have been decided as
between the same parties by a Court of competent jurisdiction, in
an earlier suit.
The principle of res judicata cannot be pressed into service
for rejection of the plaint. The reasons are more than one. Firstly,
the question as to whether the issue that is framed in a
subsequent suit is the same, as or substantially similar to, the one
that fell for consideration in an earlier suit, and whether the parties
are one and the same, is a question of fact, which can be
determined only on evidence and the principle of law gets
attracted depending upon the answer on facts. In that view of the
matter, it is a mixed of question of fact and law. It may be that the
volume of evidence could determine such question may be
relatively small. All the same, the evidence as such, must be
adduced to prove the contention.
Secondly, even where one of the issues framed in a
subsequently filed suit is found to have been barred by res
judicata, the other issues need to be dealt with and answered. The
matter can be demonstrated through the present suit itself. The
respondent claimed the relief of title and possession. Assuming
that the question of title has been determined in earlier suit, the
one relating to possession remains. Even if a plaintiff in a suit of
this nature fails to prove title, he can be granted the relief of
perpetual injunction, in case he proves possession over the suit
schedule property.
Thirdly, Order VII Rule 11 CPC, which has the effect of
denying or barring access to the plaintiff to a civil Court, must be
interpreted strictly. Any doubt, or second opinion, in this behalf,
needs to be extended to the plaintiff, so that, the power of the civil
Court to decide the suits remains in tact. On general principles
also, the right or competence of civil Court is almost taken for
granted that an aggrieved individual can seek redressal from a
civil Court, unless the suit is specifically barred. Once res judicata
is not included as a ground in Rule 11 of Order VII CPC, it cannot
be added, nor can the relief under the provision be extended
through implication.
15. The principles which can now be deduced from a reading of
the above judgments are that; since the power conferred on the
Courts under Order VII Rule 11 of the Code are extraordinary,
drastic, the same is required to be exercised very sparingly and with
great care, caution and circumspection and that the same should be
considered in the light of the pleadings in the plaint and not based
on the defence set up by the defendants in the written statement and
that the res judicata cannot be a ground for non suiting the plaintiff at
threshold and the Court is required to invoke these provisions of law
when the further continuation of the proceedings would be absurd.
16. In view of the express language of the provisions of Order VII
Rule 11 of the Code and in the light of the ratio laid down in the
judgments referred to supra, it can be safely concluded that the
contention of the learned counsel for the petitioner that the plaint is
liable to be rejected under Order VII Rule 11 of the Code on the
ground of principle of res judicata, by any stretch of imagination, can
neither be sustained nor can be approved by this Court. Yet another
contention advanced by the learned counsel for the petitioner that in
view of the filing of I.A.No.3167 of 2007 by the plaintiff under Order
VI Rule 17 of the Code for amendment of the relief portion as a suit
for recovery of possession and declaration and dismissal of the
same and confirmation of the said order by this Court in
C.R.P.No.3913 of 2008 and the findings recorded therein, further
continuation of the proceedings in the suit would be absurd and
tantamounts to abuse of process of law and vexatious and cannot
be permitted, in considered and definite view of this Court is also not
sustainable and tenable. In view of the settled law that the
pleadings in the plaint should be the criterion for consideration of the
application under Order VII rule 11 of the Code, but not the defence
set up by the defendants, the dismissal of I.A.No.3167 of 2007 and
the confirmation of the same by this Court in C.R.P.No.3913 of 2008
by any stretch of imagination cannot be the basis nor can it be used
as a foundation for maintaining the present application or for
rejecting the plaint. In fact, in a suit for injunction, the only aspect,
which requires to be examined, is possession as on the date of the
suit.
17. As rightly pointed out by the learned counsel for the first
respondent, the suit was instituted in the year 2004, the petitioner
filed I.A. for amendment in the year 2007 and the same was
dismissed in 2008 and C.R.P.No.3913 of 2008 was dismissed on
20.10.2008 and the present application was filed on 23.11.2012 and
there is absolutely no plausible explanation forthcoming from the
petitioner for such a delay. The said delay is certainly one of the
grounds which disentitles the petitioner from claiming this
extraordinary relief under Order VII Rule 11 of the Code.
18. A perusal of the order under revision vividly and candidly
discloses that the learned Judge thoroughly and scrupulously
considered all the aspects and assigned cogent and convincing
reasons and arrived at a conclusion, which in the considered opinion
of this Court is not in deviation and breach of any law. Another
significant aspect, which needs mention at this juncture, is that
unless the order impugned suffers from fundamental infirmity and
jurisdictional error, the invocation of the jurisdiction of this Court
under Article 227 of the Constitution of India is impermissible. In the
facts and circumstances of the case, this Court has absolutely no
scintilla of hesitation nor any traces of doubt to hold that the order
under challenge does not suffer from any such jurisdictional error
which warrants interference of this Court under Article 227 of the
Constitution of India. The judgments cited by the learned counsel
for the petitioner, in the facts and circumstance of the case, would
not render any assistance in the present factual and circumstantial
scenario of the case.
19. In the result, the Civil Revision Petition is dismissed. It is made
clear that the Court below shall dispose of the suit as expeditiously
as possible without being influenced by any of the observations
made either in the impugned order or in the present order. There
shall be no order as to costs. Miscellaneous petitions, if any,
pending in this revision shall stand dismissed.
________________
A.V.SESHA SAI, J
20th February, 2015
CIVIL REVISION PETITION No.1872 of 2014
20-02-2015
Emundla Lingaiah..Petitioner
Kokkula alias Burra Narsavva and others.. Respondents
Counsel for the Petitioner : Sri P.V. Narayana Rao.
Counsel for Respondent No.1: Sri V.V.Ramana Rao.
Counsel for Respondent No.3: Sri Pulla Karthik.
Counsel for Respondents 4 to 7: --
<Gist :
>Head Note:
?Cases referred:
(1977) 4 SCC 467
2 2007 (5) ALD 565
3 2014(4) ALD 63 (SC)
4 AIR 1974 PATNA 153
5 2007(6) ALD 388 (DB)
6 2013 (5) ALD 439 (DB)
7 2013(5) ALD 72
THE HONOURABLE SRI JUSTICE A.V.SESHA SAI
CIVIL REVISION PETITION No.1872 of 2014
ORDER
Defendant No.2 in O.S.No.740 of 2004 on the file of the Court
of Principal Junior Civil Judge at Karimnagar, is the petitioner in the
present revision filed under Article 227 of the Constitution of India.
This revision assails the order dated 24.04.2014, passed by the said
Court, dismissing I.A.No.1827 of 2012 filed by the petitioner under
Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter
called the Code).
2. The facts and circumstances, in nutshell, leading to the filing
of the present revision are as under;
First respondent herein instituted O.S.No.740 of 2004 on the
file of the Court of Principal Junior Civil Judge at Karimnagar, for
perpetual injunction. In the said suit, second defendant filed
I.A.No.1827 of 2012 under Order VII Rule 11 of the Code, seeking
rejection of the plaint on the ground of absence of cause of action.
The plaintiff/respondent herein filed a counter, resisting the said
application. The learned Principal Junior Civil Judge, by virtue of an
order, dated 24.04.2014, dismissed the said application. This
revision challenges the said order.
3. Heard Sri P.V.Narayana Rao, learned counsel for the
petitioner and Sri V.V.Ramana Rao, learned counsel for the first
respondent apart from perusing the material available before this
Court.
4. Contentions/submissions of the learned counsel for the
petitioner are;
(i) The order under revision is erroneous, contrary to law and is
opposed to the very spirit and object of the provisions of Order VII
Rule 11 of the Code;
(ii) Since no cause of action is available to the plaintiff for
prosecuting the suit further, the learned Judge ought to have
allowed the application by rejecting the plaint;
(iii) In view of the filing of I.A.No.3167 of 2007 under Order VI
Rule 17 of the Code and the order passed thereon and the order
of this Court in C.R.P.No.3913 of 2008, the cause does not
survive for the plaintiff to further prosecute the suit;
(iv) The order in C.R.P.No.3913 of 2008 operates as res judicata
as it is an order passed by this Court under Article 227 of the
Constitution of India;
(v) Plaintiff/first respondent has to file a suit for partition and
cannot proceed further with the present suit as per Section 8 of
Hindu Succession Act, 1956.
5. To bolster his submissions and contentions, learned counsel
for the petitioner places reliance on the decisions reported in
T.ARIVANDANDAM v. T.V.SATYAPAL ; PRATHIBHA v.
VEDVATHI ; SOUMIK SIL v. SUBHAS CHANDRA SIL ;
RAMSARUP DASS v. PYARE DAS ; and GADIYARAM
PADMAVATHI v. ADDEPALLI HANUMANTHA RAO .
6. Contentions/submissions of the learned counsel for the first
respondent/plaintiff are;
(i) The order impugned is in accordance with the provisions of Order
VII Rule 11 of the Code;
(ii) There is no illegality nor there is any jurisdictional error in the
impugned order, as such, the present revision is not maintainable
under Article 227 of the Constitution of India;
(iii) The present application is also liable to be dismissed on the
ground of delay and no plausible explanation is forthcoming for the
abnormal delay in filing the application under Order VII Rule 11 of
the Code;
(iv) As per Order VII Rule 11 of the Code, the averments in the plaint
alone need to be taken into consideration, but not the defence set up
by the defendants;
(v) Since the plaint discloses the cause of action, the plaint cannot
be rejected at threshold and the plaintiff filed title deeds and
pahanies, as such, he is entitled to prosecute the suit on merits;
(vi) Res judicata is not a ground for rejection of plaint under Order
VII Rule 11 of the Code;
(vii) judgments cited by the learned counsel for the petitioner are not
relevant to the facts and circumstances of the case.
7. In support of his submissions and contentions, learned
counsel for the first respondent takes the support of the judgments
reported in REEMANA KAUSHIK v. SHOBHIT KAUSHIK ; and
SYED ALI v. SYED NOOR MOHAMMED .
8. In the above background, now the issues, which this Court is
called upon to answer in the present revision, are;
(i) Whether the order under revision is in accordance with the
provisions of Order VII Rule 11 of the Code?
(ii) Whether the order under revision warrants any interference of
this Court under Article 227 of the Constitution of India?
9. In order to appreciate the rival contentions and for arriving at a
just and reasonable conclusion, it may be opt and appropriate to
refer to the provisions of Order VII Rule 11 of the Code, which reads
as under;
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 the 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.
From a plain reading of the above provision of law, it is quite limpid
that only under the conditions and contingencies as stipulated under
Clause (a) to (f) of Rule 11 of Order VII of the Code, plaint can be
rejected. Since this provision of law empowers the Court to non-suit
a party at threshold, strict compliance of the ingredients is
mandatory and this power is required to be utilized and made use of
very sparingly and with great care, caution and circumspection.
Unless the party applying for thoroughly and completely satisfies and
proves the existence of necessary ingredients of law, the exercise of
power under these provisions of law is impermissible to the Court.
The issue in the present revision is required to be examined in the
light of these aspects.
10. As per the plaint presented by the first respondent herein, the
petitioner is the owner and possessor of the agricultural lands,
admeasuring Ac.1.17 gts in Sy.Nos.358/A and 371/C situated at
Velichala Village, Ramadugu Mandal, Karimnagar District and that
suit lands are compact lands and that the plaintiff and the first
respondent are the natural sisters and in the partition, plaintiff was
given the suit lands and that the mother of the plaintiff and the first
defendant relinquished their rights in the suit lands and the revenue
records are in the name of the plaintiff, and in view of the hike in the
value of the lands, the first defendant in collusion with defendants 2
and 3 hatched a plan to occupy the land and without any manner of
right, the defendants tried to dispossess the plaintiff from the lands.
11. Earlier, the first respondent/plaintiff filed I.A.No.3167 of 2007
under Order VI Rule 17 of the Code seeking amendment of the main
relief portion to the following effect;
Therefore it is just and necessary that an order is passed
permitting me to amend the suit by adding relieves in claim
portion, court fee para No.3 and prayer portion in addition to main
relief of perpetual injunction as under:
(i) for recovery of possession of land measuring 1331 sq.
yards in Sy.No.358/A and for declaration that the registered sale
deed document No.1155/04 dated 16.08.2004 executed by
defendant No.1 in favour of defendant No.3 in respect of land
measuring 1331 sq. yards in Sy.No.358/A and another registered
sale deed No.1032/04 dated 26.07.2007 executed by defendant
No.1 in favour of defendant No.2 in respect of land measuring 605
sq. yards in suit Sy.No.358/A are null and void and not binding on
the plaintiff in claim portion at its end
(ii) The value of land to an extent of 1331 sq. yards which
is sought to be recovered is Rs.66,550/- and 3/4th of it is
Rs.49,912/- and upon which a Court Fee of Rs.2,386/-is paid
u/s.29 of APCF and SV Act and the value of relief of declaration
that the registered documents for which they were executed as
null and void and not binding is fixed at Rs.3,000/- each i.e., total
Rs.6,000/- and upon which a court fee of Rs.261/-each i.e., total
Rs.522/-is paid u/s.26(d) of APCF and SV Act and total of
Rs.2,908/- is paid in SBH Court Complex, Karimnagar through
challan in para No.8 as its end and
(iii) to pass judgment and decree for recovery of
possession of land to an extent of 1331 sq. yards in Sy.No.358/A
against defendant No.3
iv) to pass judgment and decree for declaration that the
registered sale deed document No.1155/04 dated 16.08.2004
executed by defendant No.1 in favour of defendant No.3 in
respect of land to an extent of 1331 sq. yards in suit Sy.No.358/A
and a registered sale deed No.1032/04 dated 26.07.2004
executed by defendant No.1 in favour of defendant No.2 in
respect of land admeasuring 605 sq.yards out of suit Sy.No.358/A
are null and void and not binding on the plaintiff in prayer portion
at the end and permit me to amend consequential amendments.
12. In the affidavit filed in support of the said I.A.No.3167 of 2007,
the plaintiff stated that while the order of injunction was in force,
defendants 3 and 4 to 7 raised a temporary shed in the suit land
illegally. The learned Principal Junior Civil Judge, by way of an
order dated 17.07.2008, dismissed the said application. Assailing
the said order, plaintiff filed C.R.P.No.3913 of 2008. In the said
order, this Court in the penultimate paragraph observed that when
first respondent in her written statement took a plea that the suit
schedule property belongs to her and she sold away the same to
defendants 2 and 3 through registered sale deeds dated 20.04.2004
and 26.07.2004, no steps have been taken by the revision petitioner
and this Court also observed that in the event of the proposed
amendment being permitted, the same would go beyond the scope
of the suit and would change the nature of the suit. While referring
to the said observations made by this Court, filing of I.A.No.3167 of
2007 and dismissal of the same and the confirmation of the same by
this Court, it is the case of the petitioner that there is no cause of
action for the petitioner and the order of this Court in the said
revision operates as res judicata. Now, these contentions are
required to be considered in the light of the judgments cited by the
learned Advocates.
13. In T. ARIVANDANDAMs case (1 supra), the Apex Court held
as under;
We have not the slightest hesitation in condemning the
petitioner for the gross abuse of the process of the Court
repeatedly and unrepentenly resorted to. From the statement of
the facts found in the judgment of the High Court, it is perfectly
plain that the suit now pending before the First Munsifs Court,
Bangalore, is a flagrant misuse of the mercies of the law in
receiving plaints. The learned Munsif must remember that if on a
meaningful-not-formal-reading of the plaint it is manifestly
vexatious, and meritless, in the sense of not disclosing a clear
right to sue, he should exercise his power under Order VII, Rule
11 CPC, taking care to see that the ground mentioned therein is
fulfilled. And, if clever drafting has created the illusion of a cause
of action, nip it in the bud at the first hearing by examining the
party searchingly under Order X CPC. An activist Judge is the
answer to irresponsible law suits. The trial Courts would insist
imperatively on examining the party at the first hearing so that
bogus litigation can be shot down at the earliest stage. The Penal
Code is also resourceful enough to meet such men, (Cr.XI) and
must be triggered against them. In this case, the learned Judge to
his cost realized what George Bernard Shaw remarked on the
assassination of Mahatma Gandhi:
It is dangerous to be too good
We regret the infliction of the ordeal upon the learned
Judge of the High Court by a callous party. We more than regret
the circumstance that the party concerned has been able to
prevail upon one lawyer or the other to present to the Court a case
which was disingenuous or worse. It may be a valuable
contribution to the cause of justice if counsel screen wholly
fraudulent and frivolous litigation refusing to be beguiled by
dubious clients. And remembering that an advocate is an officer
of justice he owes it to society not to collaborate in shady actions.
The Bar Council of India, we hope will activate this obligation. We
are constrained to make these observations and hope that the co-
opertaion of the Bar will be readily forthcoming to the Bench for
spending judicial time on worthwhile disputes and avoiding the
distraction of sham litigation such as the one we are disposing of.
Another moral of this unrighteous chain litigation is the gullible
grant of ex parte orders tempts gamblers in litigation into easy
courts. A judge who succumbs to ex parte pressure is unmerited
cases helps devalue the judicial process. We must appreciate Shri
Ramasesh for his young candour and correct advocacy
In PRATHIBHAs case (2 supra) this Court held as under;
The real object of Order VII Rule 11 of CPC is to keep out
of Courts irresponsible law suits. Therefore, the Order 10 of the
Code is a tool in the hands of the Courts by resorting to which and
by searching examination of the party in case the Court is prima
facie of the view that the suit is an abuse of the process of the
Court in the sense that it is a bogus and irresponsible litigation,
the jurisdiction under Order 7 Rule 11 of the Code can be
exercised.
In SOUMIK SILs case (3 supra) the Apex Court held as under;
After perusing the order passed by the High Court and the
reasoning given therein, it appears to us that the High Court has
correctly perused the plaint in its entirety and after deletion of the
name plaintiff No.1 from the said title suit, held that the plaint
discloses no cause of action after taking into account the fact that
the very purpose of the suit has become infructuous in view of the
order passed by the High Court to handover the possession of the
rooms in question. Therefore, the foundation of the suit was not
subsisting after the handing over of possession to the defendant
by plaintiff No.1 in terms of the order. Hence, in these
circumstances, the High Court held that the plaint discloses no
cause of action.
In RAMSARUP DASSs case (4 supra) it was held as under;
Learned counsel, however, submitted that the revisional
jurisdiction of the High Court was an extraordinary jurisdiction and,
therefore, any decision given by this Court in exercise of the
revisional powers would not amount to res judicata for entertaining
the same objection or ground in a regular appeal. It is difficult to
accept this contention. Learned counsel referrred to the decision
of the Supreme Court in Satyadhvan Ghosal v. Smt Deorajin Debi
AIR 1960 SC 941. In that case, however, the facts were entirely
different. The Supreme Court was considering the scope of
Section 105(2) of the Code of Civil Procedure and it was held that
a special provision was made as regards orders of remand and
that was to the effect that if an appeal lay and still the appeal was
not taken, the correctness of the order of remand could not later
be challenged in an appeal from the final decision. If however an
appeal did not lie from the order of remand, the correctness
thereof could be challenged by an appeal from the final decision.
In that case, an order of remand was made by the Calcutta High
Court in exercise of its revisional power under Section 115 of the
Code of Civil Procedure. It was observed by the Supreme Court
after referring to the various decisions of the Privy Council that the
order of remand was an interlocutory order and did not purport to
dispose of the case, and a party was not bound to appeal against
every interlocutory order which was a step in the procedure that
leads up to a final decision and as such the correctness of the
same could be challenged in an appeal from the final order. It was
specifically held in that case that the order of the Calcutta High
Court was not appealable to the Supreme Court and, therefore,
the bar under sub-section (2) of Section 105 of the Code of Civil
Procedure was not attracted. The Supreme Court, accordingly,
set aside the order of the Calcutta High Court. In my opinion, the
decision of the Supreme Court in the above case is of no
assistance to the appellants. In this very decision, the Supreme
Court has laid the foundation for applying the principles of res
judicata. In paragraph 8 of the report, their Lordships have clearly
observed that the principle of 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 re-agitate
the matter again at a subsequent stage of the same proceedings.
In view of the aforesaid decisions of the Supreme Court, it
is no necessary for me to advert to any other authority. But suffice
it to state that a similar view has been taken by the Punjab High
Court in Balkrishan Dass v. Parmeshri Dass, AIR 1963 Punj 187
and by a Full Bench (sic) of the Madhya Pradesh High Court in
Shyamacharan Raghubar Prasad v. Sheojee Bhai Jairam Chattri
AIR 1964 Madh Pra 288. I am in respectful agreement with the
views expressed by the Punjab and Madhya Pradesh High Courts.
In view of the binding effect of the decisions of the Supreme Court
referred to above, I am of the definite view that the contention
raised by Mr. Prem Lall that the decision in Civil Revision No.1025
of 1968 will not amount to a res judicata in this appeal has got no
substance.
In GADIYARAM PADMAVATHIs case (5 supra), this Court held as
under;
From a conjoint reading of the judgments of the apex
Court in Liverpool and Londons case and R. ARivandanandams
case (supra), it is clear that a plaint can be rejected if it is
manifestly vexatious and meritless in the sense of not disclosing a
clear right to sue and by way of clever drafting, an illusory cause
of action has been created to institute a suit. Such a suit should be
thrashed out at the outset instead of subjecting the other party to
unnecessary hardship and lying unnecessary burden of
conducting trial by the Courts or if it is perceptible that the party,
who instituted the suit, is apparently found to be having an
intention to cause undue loss for other party and gain undue
advantage for self.
The scope of Order VII Rule 11 CPC, which has been
interpreted by the apex Court time and again, may not be in strict
terms of Order VII Rule 11 CPC. But, it is obvious from the
interpretations made by the apex Court that in order to slash
unnecessary litigation or an artificial litigation for an undue gain,
the same should be treated as an abuse and the Court is vested
with the power to curtail such a litigation.
At this juncture, we may also point out that not only
depending upon the various facts and circumstances but also
keeping in view the trend of the litigation, which is on increasing
side, for various reasons should be dissuaded from being initiated
if no substantial cause action to try the suit. This would enable the
Court from avoiding any unnecessary expenditure of time and
money not only of the Court but also the parties to the litigation.
Therefore, whenever the Court found that there is an apparent
reason on record i.e., the plaint and the relevant material filed
along with it that there is no real cause of action, the same can be
decided as almost a preliminary question.
It is also well settled law that rejection of a suit can be
sought for at any time during the pendency of the suit and no
material except the plaint averments and the supporting
documents can be gone into while exercising the power under
Order VII Rule 11 CPC.
Virtually in the present plaint, the plaintiffs are going hot
and cold. On one hand, they are seriously disputing the Will,
dated 14.02.1975, said to have been executed by late GVN
Murthy in favour of their deceased aunt Vedavathi and on the
other, they are claiming rights by way of succession without
impeaching the said Will. Therefore, the contentions of this
nature, obviously, are incompatible.
Even if the relief sought in the plaint i.e., partition is
granted in favour of the plaintiffs, the effect of the Will, dated
14.02.1975, and the rights that flowed out of the said Will
executed by late GVN Murthy in favour of Smt Vedavathi would
remain the same, which would run contrary to the decision if
rendered in favour of the plaintiffs. We are of the view that this
situation is something absurd.
Therefore, we have to hold that filing a suit after more than
three decades for this relief cannot be accepted and the conduct
of the plaintiffs in this regard cannot be appreciated, and the
consequential litigation has to be dissuaded from progressing any
further, which is one among the main objects of the provisions of
Order VI Rule 11 CPC.
14. Coming to the judgments cited by the learned counsel for the
first respondent, in REEMANA KAUSHIKs case (6 supra), this
Court held as under;
In the context of dealing with an application under Rule 11
of Order 7 CPC, the Court has to take the pleadings in the plaint
or the O.P., as the case may be, on their face value. Even if there
is any dispute, that needs to be resolved after trial. It is only when
the contents of the plaint or O.P. are taken on their face value and
still they do not constitute cause of action or the suit or the O.P.
becomes barred by law, that the application filed under that
provision can be allowed.
In SYED ALIs case (7 supra) it was held as under;
Rule 11 of Order Vii CPC, provides for an exceptional
remedy to the defendant in a suit, to get the proceedings
terminated without the necessity of trial. In the ordinary course of
things, once a suit is filed, the issues are to be framed on the
basis of pleadings and the Court has to determine the issues, after
conducting trial and it is thus the suit comes to be terminated, with
a decree on merits. The facility created under Rule 11 of Order
VII CPC is that, if the grounds mentioned therein are attracted, in
a given case, the plaint can be rejected, and thereby, the
necessity to undertake trial is obviated. The provision reads:
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 the 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.
From a perusal of this, it is evident that res judicata is not
mentioned as a ground for rejection of plaint.
Section 11 of CPC is devoted to define the concept of res
judicata. The Legislature, which claborated the principle of res
judicata in minute detail in Section 11, did not choose to treat it as
a ground for rejection of plaint, and obviously for that reason, it
was not included in Rule 11 of Order VII CPC. The reason is not
difficult to discern.
In a suit, the relief of comprehensive nature is prayed for. It
is in relation to the relief, and based upon the pleading, that
several issues are framed in a suit. The result of a suit would
depend upon the answer to various issues. Even if one or few
issues are answered against the plaintiff, there may be
circumstances where the suit can still be decreed, on the basis of
finding on the other issues.
The starting sentence of Section 11 CPC makes it clear
that the provision deals with the determination of issues in a suit,
and not the result thereof. What Section 11 prohibits is, raising of
issues in a subsequent suit, in case they have been decided as
between the same parties by a Court of competent jurisdiction, in
an earlier suit.
The principle of res judicata cannot be pressed into service
for rejection of the plaint. The reasons are more than one. Firstly,
the question as to whether the issue that is framed in a
subsequent suit is the same, as or substantially similar to, the one
that fell for consideration in an earlier suit, and whether the parties
are one and the same, is a question of fact, which can be
determined only on evidence and the principle of law gets
attracted depending upon the answer on facts. In that view of the
matter, it is a mixed of question of fact and law. It may be that the
volume of evidence could determine such question may be
relatively small. All the same, the evidence as such, must be
adduced to prove the contention.
Secondly, even where one of the issues framed in a
subsequently filed suit is found to have been barred by res
judicata, the other issues need to be dealt with and answered. The
matter can be demonstrated through the present suit itself. The
respondent claimed the relief of title and possession. Assuming
that the question of title has been determined in earlier suit, the
one relating to possession remains. Even if a plaintiff in a suit of
this nature fails to prove title, he can be granted the relief of
perpetual injunction, in case he proves possession over the suit
schedule property.
Thirdly, Order VII Rule 11 CPC, which has the effect of
denying or barring access to the plaintiff to a civil Court, must be
interpreted strictly. Any doubt, or second opinion, in this behalf,
needs to be extended to the plaintiff, so that, the power of the civil
Court to decide the suits remains in tact. On general principles
also, the right or competence of civil Court is almost taken for
granted that an aggrieved individual can seek redressal from a
civil Court, unless the suit is specifically barred. Once res judicata
is not included as a ground in Rule 11 of Order VII CPC, it cannot
be added, nor can the relief under the provision be extended
through implication.
15. The principles which can now be deduced from a reading of
the above judgments are that; since the power conferred on the
Courts under Order VII Rule 11 of the Code are extraordinary,
drastic, the same is required to be exercised very sparingly and with
great care, caution and circumspection and that the same should be
considered in the light of the pleadings in the plaint and not based
on the defence set up by the defendants in the written statement and
that the res judicata cannot be a ground for non suiting the plaintiff at
threshold and the Court is required to invoke these provisions of law
when the further continuation of the proceedings would be absurd.
16. In view of the express language of the provisions of Order VII
Rule 11 of the Code and in the light of the ratio laid down in the
judgments referred to supra, it can be safely concluded that the
contention of the learned counsel for the petitioner that the plaint is
liable to be rejected under Order VII Rule 11 of the Code on the
ground of principle of res judicata, by any stretch of imagination, can
neither be sustained nor can be approved by this Court. Yet another
contention advanced by the learned counsel for the petitioner that in
view of the filing of I.A.No.3167 of 2007 by the plaintiff under Order
VI Rule 17 of the Code for amendment of the relief portion as a suit
for recovery of possession and declaration and dismissal of the
same and confirmation of the said order by this Court in
C.R.P.No.3913 of 2008 and the findings recorded therein, further
continuation of the proceedings in the suit would be absurd and
tantamounts to abuse of process of law and vexatious and cannot
be permitted, in considered and definite view of this Court is also not
sustainable and tenable. In view of the settled law that the
pleadings in the plaint should be the criterion for consideration of the
application under Order VII rule 11 of the Code, but not the defence
set up by the defendants, the dismissal of I.A.No.3167 of 2007 and
the confirmation of the same by this Court in C.R.P.No.3913 of 2008
by any stretch of imagination cannot be the basis nor can it be used
as a foundation for maintaining the present application or for
rejecting the plaint. In fact, in a suit for injunction, the only aspect,
which requires to be examined, is possession as on the date of the
suit.
17. As rightly pointed out by the learned counsel for the first
respondent, the suit was instituted in the year 2004, the petitioner
filed I.A. for amendment in the year 2007 and the same was
dismissed in 2008 and C.R.P.No.3913 of 2008 was dismissed on
20.10.2008 and the present application was filed on 23.11.2012 and
there is absolutely no plausible explanation forthcoming from the
petitioner for such a delay. The said delay is certainly one of the
grounds which disentitles the petitioner from claiming this
extraordinary relief under Order VII Rule 11 of the Code.
18. A perusal of the order under revision vividly and candidly
discloses that the learned Judge thoroughly and scrupulously
considered all the aspects and assigned cogent and convincing
reasons and arrived at a conclusion, which in the considered opinion
of this Court is not in deviation and breach of any law. Another
significant aspect, which needs mention at this juncture, is that
unless the order impugned suffers from fundamental infirmity and
jurisdictional error, the invocation of the jurisdiction of this Court
under Article 227 of the Constitution of India is impermissible. In the
facts and circumstances of the case, this Court has absolutely no
scintilla of hesitation nor any traces of doubt to hold that the order
under challenge does not suffer from any such jurisdictional error
which warrants interference of this Court under Article 227 of the
Constitution of India. The judgments cited by the learned counsel
for the petitioner, in the facts and circumstance of the case, would
not render any assistance in the present factual and circumstantial
scenario of the case.
19. In the result, the Civil Revision Petition is dismissed. It is made
clear that the Court below shall dispose of the suit as expeditiously
as possible without being influenced by any of the observations
made either in the impugned order or in the present order. There
shall be no order as to costs. Miscellaneous petitions, if any,
pending in this revision shall stand dismissed.
________________
A.V.SESHA SAI, J
20th February, 2015
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.