HONOURABLE SRI JUSTICE P.NAVEEN RAO
CIVIL REVISION PETITION NO.2176 OF 2022
Date: 17.02.2023
Between:
Sri Nalin Kumar Shah,
s/o. Sri Mohandas Shah,
Aged about 66 years,
Occu: Business,
r/o. 4-5-538, Hanuman Tekdi,
Hyderabad and another.
..... Petitioners/
Petitioners/
Defendants
and
Sri Nalkari Raju s/o. late Sri Anjaiah,
Aged about 53 years, occu: Labour,
r/o.17-7-307/B, Brahmanvadi,
Yakutpura, Hyderabad.
.....Respondent/
Respondent/
plaintiff
The Court made the following:
PNR,J
CRP No.2176 of 2022
2
HONOURABLE SRI JUSTICE P.NAVEEN RAO
CIVIL REVISION PETITION NO.2176 OF 2022
ORDER:
Respondent instituted O.S.No.76 of 2019 in the Court of XXVI Additional Chief Judge, City Civil Court at Hyderabad praying to grant the following reliefs:
"(a) to declare the plaintiff as the owner of the suit schedule property and consequently relief of mandatory injunction directing the defendants to deliver vacant possession of the suit schedule land admeasuring 3000 square yards, out of Acs.2.04 guntas in Sy.Nos.102/1 and 102/2, Nampally, Hyderabad in T.S., 27 and T.S. 28, Ward No.40, Block No.K of Nampally, Hyderabad;
(b) declaring the plaintiff as legal heir of deceased Anjaiah, so as to get mutation of the property, covered by the plaint schedule, in their names.;
(c) declaring that the entries made TSLR in respect of TS 27 and TS 28, Ward No.40, Block No.K of Nampally, Hyderabad are null and void and does not bind the plaintiff;
(d) For mandatory injunction directing the Deputy Director of Survey and Land Records, Hyderabad, to delete the names of existing possessors and insert the names of plaintiffs 1 to 4 in the relevant records, in respect of TS 27 and TS 28, Ward No.40, Block No.K of Nampally, Hyderabad;
(e) To award costs of the suit; and PNR,J CRP No.2176 of 2022 3
(f) To grant such other relief or reliefs as this Hon'ble court may deem fit and proper under the circumstances of the case."
2. In the said suit, petitioners herein, who are the defendants, filed I.A.No.567 of 2019 under Order VII Rule 11 read with Section 151 of Code of Civil Procedure, 1908 to reject the plaint. On due consideration of the respective submissions, trial Court, by Order dated 03.08.2022, dismissed the I.A.No.567 of 2019. Hence, this Revision.
3. Heard learned counsel Sri Shyam S Agarwal for the petitioners and the learned counsel Sri Naga Srinivasa Rao for the respondent.
4. On two grounds, petitioners sought for rejection of the plaint. Firstly, the suit is hit by principles of res judicata and does not disclose the cause of action, inasmuch as on the same subject matter, O.S.No.8 of 1981 was filed. In O.S.No.8 of 1981, petitioners are the defendant nos.10 and 11, and the respondent is plaintiff no.11. Suit was filed for ejection and recovery of possession, mesne profits and costs in respect of the land in Sy.Nos.102/1 and 102/2 including the buildings under the occupation of Dunlop Company admeasuring 3000 PNR,J CRP No.2176 of 2022 4 square yards, out of Acs.2.14 guntas, situated at Nampally, Hyderabad. By judgment dated 26.04.1994, suit was dismissed and, therefore, the present suit is not maintainable. The second contention urged was, whether the suit was barred by limitation.
5. Extensive submissions were made before the trial Court on both aspects. On due consideration of the provisions of the Order VII Rule 11 of CPC, the precedent decisions on the subject, trial Court also looked into the pleadings to assess whether the suit is hit by the principles of res judicata and that it does not disclose the cause of action and is hit by limitation.
6. On the aspect of res judicata and cause of action, the trial Court held as under:
"a) Therefore, if the averments in the plaint in O.S.No.76 of 2019 are read as a whole and juxtaposed with the pleadings in O.S.No.8 of 1981, it is discernible that the relief in the present suit and the suit in O.S.No.8 of 1981 are different, so also the issues that would be formulated for consideration in the present suit would be different, since the relief claimed in the said suit was for a different purpose and the present relief claimed in this suit in O.S.No.76 of 2019 is for declaration as extracted above. Therefore, it cannot be said that the issues which arose for PNR,J CRP No.2176 of 2022 5 determination in O.S.No.8 of 1981 are the same issues which would fall for adjudication in O.S.No.76 of 2019 and as such the findings of fact recorded by the learned VIII Assistant Judge, City Civil Court, Hyderabad in the judgment in O.S.No.8 of 1981 dated 26.04.1994 do not operate as res judicata in the present suit. In this view of the matter the decisions relied upon by the learned counsel for the petitioners/defendants are not applicable to the present factual matrix of the case. Therefore, the principles of res judicata are not applicable for the maintainability of the present suit. Further, it cannot also be said that the present suit does not disclose any cause of action."
7. On the second aspect, the trial Court "on a careful perusal of the pleadings of the plaint read as a whole, including the cause of action, it would depict several legal and factual aspects raised therein are inextricably interlinked which cannot be adjudicated at this stage so as to de-link them to reject the plaint on the ground of having been barred by limitation". Having held so, rejected the contentions on the issue of limitation.
8. Having regard to these findings, trial Court held that the rejection of the plaint at the threshold cannot be ordered as those aspects have to be gone into in regular trial and on plain reading of the plaint, it cannot be construed that the PNR,J CRP No.2176 of 2022 6 pleadings are manifestly vexatious and merit less in the sense of not disclosing a clear right to sue.
9. Learned counsel for the petitioners sought to contend that trial Court erred in rejecting the plea of principles of res judicata and limitation to reject the plaint. He would urge that as held by the Hon'ble Supreme Court in T.Arivandandam vs. T.V.Satyapal and another1, the present suit amounts to gross abuse of the process of Court repeatedly. He would contend that the principles of res judicata envisages that a judgment of a Court of concurrent jurisdiction directly upon a point would create a bar as regards a plea, between the same parties in some other matter in another Court, where the said plea seeks to raise afresh the very point that was determined in the earlier judgment as held in Swamy Atmananda and others vs. Sri Ramakrishna Tapovanam and others2.
10. He would further contend that the cause of action arose way-back in the year 1994 and, therefore the suit is hit by limitation on the face of it and, therefore, ought to have 1 (1977) 4 SCC 467 2 (2005) 10 SCC 51 PNR,J CRP No.2176 of 2022 7 been rejected on that ground. He would submit that in the earlier judgment, plaintiffs were declared as not the owners of the suit land. Therefore, the reliefs prayed in the present suit are not maintainable.
11. These issues were also urged before the trial Court. The trial Court has gone through the entire record, extracted the relevant pleadings in the plaint, the paragraph dealing with cause of action and the prayer. On thorough analysis of plaint averments as they stand, trial Court did not agree with the plea raised on the issue of principles of res judicata and limitation to reject the plaint under Order VII Rule 11 of CPC.
12. On independent consideration of the matter, I do not see any error in the view taken by the trial Court for this Court to reverse the decision in exercise of revisional jurisdiction. The Civil Revision Petition is accordingly dismissed. Pending miscellaneous applications if any shall stand closed.
___________________________ JUSTICE P.NAVEEN RAO Date: 17.02.2023 Kkm PNR,J CRP No.2176 of 2022 8 HONOURABLE SRI JUSTICE P.NAVEEN RAO CIVIL REVISION PETITION NO.2176 OF 2022 Date: 17.02.2023 kkm