Calcutta High Court (Appellete Side)
Transcriber : Nandy vs Abdul Salam & Ors on 1 October, 2024
Author: Harish Tandon
Bench: Harish Tandon
0110 IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
2024 APPELLATE SIDE
CO 1634 of 2024
Court : 08
Item : 09
Matter
Status
: CO
: DISMISSED JAGDISH PRASAD SAHA
Bench ID : 265762
Transcriber : NANDY Vs.
ABDUL SALAM & ORS.
MR. BAIDURYA GHOSAL, ADVOCATE
MR. SAIKAT MUKHERJEE, ADVOCATE
MS. ANUPAMA BISWAS, ADVOCATE
......for the Petitioner
1.
This revisional application is directed against
an order no. 8 dated 20.03.2024 passed by the
First Court of Civil Judge (Senior Division),
Malda in Partition Suit No. 281 of 2022, by
which an application under Order VII Rule 11
of the Code of Civil Procedure is rejected on
contest.
2. The plaintiff/opposite party filed a Suit for
partition and separation of the shares along
with the decree for declaration that certain
deeds executed by the mother as a natural
guardian to be declared void as the mother
cannot act as a natural guardian under the
Muhammadan Law. It is averred in the said
plaint that the property of the minor cannot be
sold and the minor after attaining the majority
after 18 years, can institute a suit in this
regard.
3. In substance, as discerned from the record, it
is a composite suit for declaration of certain
deeds to be void and the property being joint
property to be divided amongst the co-sharers
in commensurate with the shares they hold
therein.
4. An application Order VII Rule 11 of the Code
of Civil Procedure was filed asserting that
there was a Partition Suit instituted in the year
1967 and, according to the plaintiff himself, the
decree passed therein, is in force. A further
plea was taken that the suit is barred by the
provisions of the Limitation Act. The Court
rejected the said application holding that all
such points if taken in the written-statement,
can be decided after a full-fledged trial and it
do not come within the purview Order VII Rule
11 of the Code.
5. The Counsel for the petitioner vociferously
submits that once the decree passed in the
Partition Suit is in force, it bars the subsequent
Suit.
6. The plea is founded upon the principle of res
judicata envisaged under Section 11 of the
Code of Civil Procedure. The principle of res
judicata is founded upon a public policy with
an avowed object of bringing the litigation to
its logical end. It further aimed to bring
quietus to a cause of action and the issue
involved in the earlier proceedings having
decided finally shall not be reopened in a
subsequent proceeding. In order to ascertain
the issue having directly and substantially an
issue in an earlier suit, the relevant pleadings
as well as the judgments are required to be
brought in evidence and cannot be decided on
a stray fact that there was an earlier suit and
the decree passed therein is still in force.
7. It is thus essentially a question of facts and then
the question of law. Order VII Rule 11 of the
Code of Civil Procedure does not invite a mini
trial where the defendant can produce the
documents in support of the averments made
in the application filed under Order VII Rule 11
of the Code. The Court must confine its
scrutiny on the averments made in the plaint
and, in the event, it is found that the
ingredients engrafted under Order VII Rule 11
are imminently found present, there is no
fetter on the part of the Court to reject the
application. The moment the Court finds that
the issues so raised require an evidence to be
adduced in this regard, it takes such issue
outside the peripheral of Order VII Rule 11 of
the Code. Whether the decree passed in an
earlier suit shall operate as res judicata or not
is to be decided on the evidence to be brought
in this regard and, therefore, I do not find any
incongruity in the decision of the Trial Court in
rejecting such point being outside the purview
of Order VII Rule 11 of the Code.
8. So far as Section 21A of the Code of Civil
Procedure is concerned, this Court does not
find that it has any manner of application in the
instant case. It prohibits any suit challenging
the decree passed by the Court on the ground
of territorial jurisdiction. Section 21 of the
Code of Civil Procedure, in unequivocal terms
postulates that, in the event, no objection is
raised as to the place of suing or as to the
pecuniary limit of any Court at the first
instance or at the earliest opportunity, it
cannot be raised on a subsequent stage, more
particularly, at the appellate stage.
9. This Court thus does not find that the order
passed by the Trial Court warrants any
interference.
10. The revisional application sans merit. CO 1634
of 2024 is dismissed. No order as to costs.
(HARISH TANDON, J)
