Smt. Lalo vs Mahendra Pratap Jaiswal
2021 Latest Caselaw 419 Chatt

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                                                                  NAFR
      HIGH COURT OF CHHATTISGARH, BILASPUR
                      WP227 No. 257 of 2021
1. Smt. Lalo D/o. Late Sukan Ram, Aged About 56 Years, W/o Gopal Das,
   R/o. Ward No. 7, Ramanujganj, Police Station- Balrampur-
   Ramanujganj, Chhattisgarh., District : Balrampur, Chhattisgarh
2. Smt. Geeta D/o. Late Sukan Ram, Aged About 52 Years, W/o. Rajendra
   Das, R/o Ward No. 7, Ramanujganj, Police Station- Balrampur-
   Ramanujganj, Chhattisgarh., District : Balrampur, Chhattisgarh
3. Smt. Shanti D/o. Late Sukan Ram, Aged About 48 Years, W/o. Surendra
   Das, R/o Ward No. 7, Ramanujganj, Police Station- Balrampur-
   Ramanujganj, Chhattisgarh., District : Balrampur, Chhattisgarh
4. Smt. Shakuntala D/o. Late Sukan Ram, Aged About 48 Years, W/o.
   Mahendra Das, R/o Husainabad, Police Station Husainabad, District-
   Palamu, Jharkhand., District : Palamu, Jharkhand
                                                         ---- Petitioners
                                                                Plaintiff
                              Versus
1. Mahendra Pratap Jaiswal S/o. Late Heeralal Jaiswal, Aged About 72
   Years, R/o. Mission Chowk, Kedarpur, Ambikapur, District- Surguja,
   Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh
2. Ravindra Pratap Jaiswal S/o. Late Heeralal Jaiswal, Aged About 68
   Years, R/o. Piprahi, Police Station- Balrampur, District- Balrampur-
   Ramanujganj, Chhattisgarh., District : Balrampur, Chhattisgarh
3. Ramkrishna Pratap Jaiswal S/o. Late Heeralal Jaiswal, Aged About 52
   Years, R/o. Pratappur, Amandon, Police Station- Pratappur, District-
   Surajpur, Chhattisgarh., District : Surajpur, Chhattisgarh
4. Sharadmani Pratap Jaiswal S/o. Late Heeralal Jaiswal, Aged About 52
   Years, R/o. Gobra, Basantpur, District- Balrampur-Ramanujganj,
   Chhattisgarh., District : Balrampur, Chhattisgarh
5. Sarvjeet Pratap Jaiswal S/o. Late Heeralal Jaiswal, Aged About 47
   Years, R/o. Bhatgaon, Tehsil- Bhaiyathan, District- Surajpur,
   Chhattisarh., District : Surajpur, Chhattisgarh
6. Smt. Laxmaniya D/o. Late Kolu Kumhar @ Putun Kumhar, Aged About
   70 Years, W/o. Late Ayodhya, R/o. Khadgawan, Police Station-
   Pratappur, District- Surajpur, Chhattisgarh., District : Surajpur,
   Chhattisgarh
7. Smt. Gulbasiya D/o. Late Kolu Kumhar @ Putun Kumhar, Aged About
   65 Years, W/o. Bacchu Prajapati, R/o. Jolanga, Police Station- Ranka,
   District- Gadhwa, Jharkhand., District : Garhwa *, Jharkhand
8. Bechu S/o Late Sukan Ram, Aged About 54 Years R/o. Ward No.7,
   Bhartiya State Bank Road, Ramanujganj, District- Balrampur-
   Ramanujganj, Chhattisgarh., District : Balrampur, Chhattisgarh
9. Sunil S/o Late Sukan Ram, Aged About 47 Years, R/o. Ward No.7,
   Bhartiya State Bank Road, Ramanujganj, District- Balrampur-
   Ramanujganj, Chhattisgarh., District : Balrampur, Chhattisgarh
10. Smt. Sunarwa Devi W/o. Late Sukan Ram, Aged About 77 Years, R/o.
    Ward No.7, Bhartiya State Bank Road, Ramanujganj, District-
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   Balrampur- Ramanujganj,         Chhattisgarh.,   District   :   Balrampur,
   Chhattisgarh
11. Nandlal Pandey S/o. Late Kedarnath Pandey, Aged About 52 Years, R/o.
    Ward No. 6, Ramanujganj, District- Balrampur- Ramanujganj,
    Chhattisgarh., District : Balrampur, Chhattisgarh
12. Smt. Sushila Pandey W/o. Late Kedarnath Pandey, Aged About 68
    Years, R/o. Ward No.6, Ramanujganj, District- Balrampur- Ramanujganj,
    Chhattisgarh., District : Balrampur, Chhattisgarh
13. Maniraj Singh Tiwari S/o. Mohan Singh Tiwari, Aged About 57 Years,
    R/o. Kutra, Amarpatan, District- Satna, Madhya Pradesh., District :
    Satna, Madhya Pradesh
14. Smt. Shivratri Tiwari W/o. Vishram Singh Tiwari, Aged About 62 Years,
    R/o. Ward No. 5, Ramanujganj, District- Balrampur- Ramanujganj,
    Chhattisgarh., District : Balrampur, Chhattisgarh
15. Laxmikant [email protected] Makhan Pandey S/o. Late Narbadeshwar Pandey,
    Aged About 67 Years, R/o. Ward No. 7, Bhartiya State Bank Road,
    Ramanujganj, District- Balrampur- Ramanujganj, Chhattisgarh, District :
    Balrampur, Chhattisgarh
16. Nandkumar Pandey S/o. Late Narbadeshwar Pandey, Aged About 65
    Years, R/o. Ward No. 7, Bhartiya State Bank Road, Ramanujganj,
    District- Balrampur- Ramanujganj, Chhattisgarh, District : Balrampur,
    Chhattisgarh
17. Smt. Nurun Nisha D/o. Late Basir Ansari, Aged About 70 Years, W/o.
    Dost Mohammad, R/o. Dhagardiha, Police Station- Gadhwa, District-
    Gadhwa, Jharkhand., District : Garhwa *, Jharkhand
18. Tahir Ansari S/o. Late Basir Ansari, Aged About 62 Years, R/o. Rasulpur,
    Ambikapur, District- Surguja, Chhattisagarh, District : Surguja
    (Ambikapur), Chhattisgarh
19. Smt. Shakila Bano D/o. Late Basir Ansari, Aged About 60 Years, W/o.
    Akhtar Husain, R/o. Amba, Police Station- Amba, District- Aurangabad,
    Bihar, District : Aurangabad, Bihar
20. Nasim Ansari S/o. Late Basir Ansari, Aged About 52 Years, R/o. Ward
    No.7, Ramanujganj, Bhartiya State Bank Road, District- Balrampur-
    Ramanujganj, Chhattisgarh., District : Balrampur, Chhattisgarh
21. Yunus Ansari S/o. Late Basir Ansari, Aged About 40 Years, R/o. Ward
    No.7, Ramanujganj, Bhartiya State Bank Road, District- Balrampur-
    Ramanujganj, Chhattisgarh., District : Balrampur, Chhattisgarh
22. Smt. Nasima Khatun D/o. Late Basir Ansari, Aged About 50 Years, W/o.
    Ali Husain, R/o. Ramchandrapur, Police Station- Ramchandrapur,
    District- Balrampur- Ramanujganj, Chhattisgarh., District : Balrampur,
    Chhattisgarh
23. Smt. Shamima Khatun D/o. Late Basir Ansari, Aged About 45 Years,
    W/o. Tahir Husain, R/o. Jagarnathpur, Police Station- Pratappur, District-
    Surajpur, Chhattisgarh., District : Surajpur, Chhattisgarh
24. State of Chhattisgarh,      through: Collector, Balrampur, District-
    Balrampur-Ramanujganj,       Chhattisgarh., District :   Balrampur,
    Chhattisgarh
                                                           ---- Respondents

Defendants

For Petitioners - Shri Manoj Paranjpe, Advocate.

For State/Respondent No.24 - Shri Alok Nigam, Govt. Advocate.

Hon'ble Shri Justice Rajendra Chandra Singh Samant Order on Board 21-06-2021

1. This petition under Article 227 of the Constitution of India has been

brought seeking indulgence of this Court to quash the impugned order dated

03-02-2021 passed by learned Additional District Judge, Ramanujganj, District

Balrampur-Ramanujganj (C.G.) in unregistered civil suit of 2021 on the basis

that the suit filed is hit by the principle of res judicata under Section 11 of the

CPC.

2. It is submitted by learned counsel for the petitioners that in the civil suit it

has been clearly pleaded that decree has been obtained by respondents No.1

to 5 fraudulently without making the petitioners as party to the suit, who were

the actual owners of the disputed property. Therefore, decree in that suit and

the result in appeal has no consequence. The petitioners have filed suit

praying for declaration that the judgment and decree in previous civil suit is

void ab-initio along with other reliefs. It is submitted that the question of res-

judicata could not have been considered at the stage of registration of civil suit.

Reliance has been placed on the judgment of this Court in the case of

Dr. Somesh Pandeya and others Vs. Viseshwar Prasad Pandeya (died)

through L.Rs., 2017(2) C.G.L.J. 534, in which this Court has held, that the

issue of res judicata is not a pure question of jurisdiction and thus it is a mixed

question of fact and law, which cannot be decided at any preliminary stage.

Reliance has also been placed on the judgment of Hon'ble the Supreme Court

in the case of Soumitra Kumar Sen Vs. Shyamal Kumar Sen and others,

(2018) 5 SCC 644, in which it was held that the question of res judicata is 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 and not before

that. Therefore, it is prayed that this petition may be disposed off with

appropriate direction to the trial Court.

3. Learned State counsel appearing for respondent No.24 makes formal

objection.

4. Considered on the submission. In this case, the civil suit was filed and

when the case was listed for registration of the civil suit on 03-02-2021 learned

trial Court has at the very stage of registration by making reference to the

pleadings in the plaint has drawn conclusion that the civil suit filed is hit by res

judicata and the plaint was returned to the plaintiffs, i.e., the petitioners, that

amounts to order under Order 7 Rule 11 of the CPC. After considering on the

submission and the impugned order that has been passed, I am of this view

that in view of the ratio laid down by Hon'ble the Supreme Court and also the

same being reiterated by coordinate Bench of this Court, it had not been

proper stage for the trial Court to consider and decide the issue of res judicata

as it is clearly laid down that the issue of res judicata is a mixed question of

facts and law, hence, for this reason the petition is allowed at motion stage

without notice to the private respondents. The impugned order is set aside.

Learned trial Court is directed to entertain the civil suit filed by the petitioners

and proceed with the case in accordance with law and also in accordance with

the observations made hereinabove.

Sd/-

(Rajendra Chandra Singh Samant) Judge Aadil