HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
Civil Revision Petition No.758 of 2021
ORDER:
This Civil Revision Petition is filed against order dated 17.02.2021 in I.A.No.2206 of 2019 in O.S.No.540 of 2019 wherein and whereby the Court below dismissed the application filed by the petitioners under Order VII Rule 11 (d) of CPC to reject the plaint in OS No.540 of 2019 as barred by law.
Heard Sri Kuturu Ravinder Reddy, learned counsel for the petitioners and Sri B.Chandrasen Reddy, learned Senior Counsel representing Sri V.Manoj Kumar, learned counsel for the respondent.
Learned counsel for the petitioners submit that earlier two suits i.e., OS No.459 of 2004 and OS No.1926 of 2005 have been filed by the vendors of the petitioners on similar subject matter and same were dismissed as withdrawn. That O.S No.540 of 2019 is barred under Order VII rule 11 CPC as well as under Order XXIII Rule 2 CPC. He also submits that the suit is filed by playing fraud on the court and the same is vexatious one and that the court below has not considered the said issue in proper perspective.
On the other hand, Sri B.Chandrasen Reddy, learned Senior Counsel for the respondent submits that the petitioners and the respondent are not parties to the earlier round of litigation in the suits. He submits that Order VII Rule 11 CPC petition is not 2 maintainable on the ground that the suit is barred by res-judicata and the said issue has to be tried by framing an issue in the suit, as such, the trial Court rightly relying on several judgments of this Court as well as Hon'ble Apex Court dismissed the application and that no exception can be taken. In support of his contention, he relied on the judgment in Kamala v. K.T. Eshwara Sa, (2008) 12 SCC 661.
In this case, it is to be seen that I.A.No.2206 of 2019 is filed for rejection of plaint stating that the same is barred under Order VII Rule 11 CPC as well as under Order XXIII Rule 2 of CPC. Admittedly, neither the petitioners nor the respondent are parties to earlier suits i.e., OS No.459 of 2004 and OS No.1926 of 2005 and the trial Court also found the same. Plaint can also not be rejected under Order VII Rule 11 CPC on the plea of res-judicata. An enquiry regarding said plea cannot be the subject matter in an application under Order VII Rule 11 CPC as held by the Hon'ble Apex Court in Kamala v. K.T. Eshwara Sa, (2008) 12 SCC 661 which reads as follows;
"23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage." Order XXIII Rule 2 is only withdrawal of suit and petitioners and respondent are not parties to the earlier suits, as such, on that ground, the plaint cannot be rejected. 3
Learned counsel for the petitioner also tried to argue the case on merits which can only be considered during the course of trial, as such, the trial Court after going through the factual aspects, after referring to the several judgments of this court as well as the Hon'ble Apex Court, passed a reasoned and elaborate order and no infirmity or illegality is brought to the notice of this court by the petitioner for interdiction under Article 227 of the Constitution of India.
Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs.
As a sequel thereto, miscellaneous applications, if any, pending in this Civil Revision Petition, shall stand dismissed.
____________________________ A.RAJASHEKER REDDY, J Date: 18.06.2021 kvs 4 HON'BLE SRI JUSTICE A.RAJASHEKER REDDY Civil Revision Petition No.758 of 2021 Date: 18.06.2021 kvs 5