Smt. Anandi Namdev Raje vs Smt. Muktabai Krishna Navadekar ...
2022 Latest Caselaw 2092 Bom

      IRESH SIDDHARAM   Digitally signed by IRESH
                        SIDDHARAM MASHAL
      MASHAL            Date: 2022.03.03 15:16:16 +0530




                                                                                      13cra-34-2020.doc

ISM
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                               CIVIL APPELLATE JURISDICTION

                           CIVIL REVISION APPLICATION NO. 34                          OF 2020

             SMT. ANANDI NAMDEV RAJE                                                  .... APPLICANT.

                                V/s.

             SMT. MUKTABAI KRISHNA NAVADEKAR                                    .....RESPONDENTS.
             & 23 ORS.

             Mr. Drupad S. Patil, Advocate for the Applicant.
             Mr. Sachin S. Punde, Advocate for Respondents.

                                             CORAM :            NITIN W. SAMBRE, J.

                                             DATE:              MARCH 01, 2022.



             P.C.:

1. Special Civil Suit No. 348 of 2013 is taken out by Respondents

against Judgment & Decree dated 15-04-2013 passed in R.C.S. No.

233 of 2007.

2. In the said suit, the Applicant-Petitioner, who is decree holder

in RC Suit No. 233 of 2007, has invoked provisions of Order VII Rule

11 (d), claiming that second suit, questioning the decree passed in

earlier suit is not maintainable as parties to the earlier decree

13cra-34-2020.doc

passed in RC Suit No. 233 of 2007 were duly represented, written

statements were filed so also affidavit of evidence. According to Mr.

Drupad Patil, learned counsel for the applicant, principle of res-

judicata will operate. As such, second suit is barred by law.

3. His next contention is even if the present suit is based on

pleadings of fraud, such suit is not maintainable for want of

appropriate pleadings as the case is of practicing fraud by the

plaintiffs in RC Suit No. 233 of 2007 on the present plaintiffs, who

were defendants in the earlier suit. According to him in the aforesaid

background, having regard to the provisions of principle of res-

judicata, the fact that fraud is alleged to be practiced by the

defendant in the earlier suit alongwith plaintiffs therein, plaint is

liable to be rejected, as appropriate remedy is that of filing of an

appeal.

4. I have appreciated the said contentions.

5. This court is required to be sensitive to the principle that fraud

vitiates everything. As far as pleadings in Special Civil Suit No. 348

of 2013 are concerned, it is specifically pleaded in para -7 as to mode

and manner of fraud practiced by defendant nos. 2 to 7 alongwith

13cra-34-2020.doc

the plaintiff in RC Suit No. 233 of 2007 on the plaintiffs in the

matter of obtaining the decree in earlier Suit.

6. Apart from above, fact remains that if the decree as has been

claimed in the earlier suit i.e. RC Suit No. 233 of 2007 is obtained by

fraud, the same can be termed as an exception to the principle of res-

judicata.

7. In view of the above, the order impugned does not call for any

interference in extraordinary jurisdiction as no error of jurisdiction

could be noticed.

8. Revision as such fails, stands dismissed.

[NITIN W. SAMBRE, J.]