Gujarat High Court
Mr. Jitendra Dajubhai Zala vs Mrs. Ramilaben Dhirubhai ... on 29 November, 2021
Bench: Vipul M. Pancholi
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 142 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI : Sd/-
=======================================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
=======================================================
MR. JITENDRA DAJUBHAI ZALA
Versus
MRS. RAMILABEN DHIRUBHAI BHANDERI & 4 other(s)
=======================================================
Appearance:
MR SP MAJMUDAR(3456) for the Applicant(s) No. 1
MR HEMANG M SHAH(5399) for the Opponent(s) No. 1,2,3
for the Opponent(s) No. 4,5
=======================================================
CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 29/11/2021
ORAL JUDGMENT
1. This Civil Revision Application is filed under
Section 115 of the Civil Procedure Code, 1908
(hereinafter referred to as "the Code" for short),
in which, the applicant - original defendant no.1
has challenged the order dated 24.12.2019 passed
by the learned 5th Additional Sr. Civil Judge,
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
Ahmedabad (Rural), Mirzapur below application,
Exh.14 in Special Civil Suit No.304/2019.
2. Heard learned advocate, Mr. S.P. Majmudar for the
applicant and learned Senior Counsel, Mr. Shalin
Mehta assisted by learned advocate, Mr. Hemang
Shah for the respondent nos.1 to 3 - original
plaintiffs.
3. The brief facts leading to the filing of the
present Civil Revision Application are as under,
3.1 The respondent nos.1 to 3, who are original
plaintiffs, have filed Regular Civil Suit
No.304/2019 before the court of learned
Principal Senior Civil Judge, Ahmedabad
against the present applicant and the
respondent nos.4 and 5. It is the case of the
original plaintiffs that they have
cumulatively paid total sale consideration of
Rs.6,14,20,000/- for the agriculture land
bearing Survey No.840 admeasuring 6412
Sq.Yards, which is old tenure agricultural
land known as "Khari Farm" at Panchvati Park,
Nr. Khaarikat Canal, Opp. Kavya Residency,
Taluka : Asarva, Village : Nava Naroda,
District & Sub District : Ahmedabad (East)
(hereinafter referred to as "the land in
question" for short). In the said suit, the
applicant - defendant no.1 appeared and,
thereafter, filed an application, Exh.14
under Order 7, Rule 11(d) of the Code for
rejection of the plaint.
3.2 The original plaintiffs filed reply, Exh.17
to the said application, whereby additional
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
documents were placed on record.
3.3 Thereafter, the concerned civil court, vide
impugned order dated 24.12.2019, rejected the
application, Exh.14 filed by the present
applicant. Hence, the present Civil Revision
Application is filed.
4. Learned advocate, Mr. S.P. Majmudar appearing for
the applicant has submitted that the original
plaintiffs have filed the suit for specific
performance of the agreement with regard to the
land in question and it was also prayed that the
defendants be directed to execute the sale deed/
conveyance deed with regard to the land in
question in favour of the plaintiffs. It is also
prayed that the defendants be directed to handover
peaceful and vacant possession of the land in
question. Learned advocate has referred to the
documents, which are placed on record. It is
submitted that the agreement to sale was executed
on 13.05.2011 between the defendant no.1 and the
defendant no.2. It is further submitted that
another agreement to sale was executed on
09.05.2013 between the defendant no.2 and the
plaintiff no.3 and, thereafter, Memorandum of
Understanding was executed between the concerned
parties on 09.05.2013 and additional agreement was
executed on 28.02.2014 between the applicant and
the plaintiff nos.1 and 2. At this stage, learned
advocate submitted that notice was given by the
plaintiffs on 30.05.2019 to the defendants, to
which, the present applicant gave reply on
03.06.2019 and counter notice was also given by
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
the applicant. It is submitted that the applicant
has informed the plaintiffs that the agreements
entered into between the parties are terminated,
however, the plaintiffs have not challenged the
said termination and, therefore, the reliefs
prayed for in the suit cannot be granted in favour
of the plaintiffs. It is further submitted that
the relief prayed for in the suit is vague and,
therefore also, the same cannot be granted in
favour of the plaintiffs. It is further submitted
that the agreement to sale in favour of the
plaintiffs was terminated and when the plaintiffs
have not sought declaratory relief to declare that
the termination of the agreement to sale in the
original suit is bad in law, suit for specific
performance is not maintainable. At this stage,
learned advocate would submit that law declared by
the Hon'ble Supreme Court can be treated as law
within the meaning of Order 7, Rule 11(d) of the
Code and, therefore, the suit filed by the
plaintiffs is not maintainable. Thus, the
concerned civil court ought to have allowed the
application filed by the applicant under Order 7,
Rule 11 of the Code.
5. Learned advocate for the applicant has placed
reliance upon the following decisions,
(1) judgment of the Hon'ble Supreme Court in
case of I.S. Sikandar Vs. K. Subrahmani &
Ors., reported in (2013) 15 SCC 27;
(2) judgment of the Hon'ble Supreme Court in
case of Bhargavi Constructions & Anr. Vs.
Kothakapu Muthyam Reddy & Ors., reported in
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
(2018) 13 SCC 480;
(3) judgment of the Hon'ble Supreme Court in
case of Mohinder Kaur Vs. Sant Paul Singh,
reported in (2019) 9 SCC 358;
(4) judgment of the Hon'ble Supreme Court in
case of Rajendra Bajoria & Ors. Vs. Hemant
Kumar Jalal & Ors., reported in 2021 SCC
OnLine SC 764;
6. On the other hand, learned Senior Counsel, Mr.
Shalin Mehta appearing for the respondent nos.1 to
3 - original plaintiffs has opposed this petition.
Learned Counsel has submitted that on 28.02.2014,
agreement to sale came to be executed between the
applicant as seller, the respondent no.4 -
Vipulbhai Patel and the present respondent nos.1
and 2 as purchasers and while executing the said
agreement, total sale consideration was fixed at
Rs.1,41,00,000/-, out of which, the applicant and
the respondent no.4 had acknowledged receipt of
Rs.70,50,000/- and thus, the amount was paid by
the respondent nos.1 and 2 in favour of the
respondent no.4 through RTGS and balance sale
consideration was to be paid within a period of
two months to the applicant from the date of
receipt of the permission for the change of land
into non-agriculture. It is further submitted that
Rs.25,00,000/- was paid in cash, thereafter,
certain amount was paid to the respondent no.4 by
cash and cheuqe. At this stage, learned Senior
Counsel would submit that the averments made in
the plaint as a whole are required to be
considered. It is further submitted that the
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
plaintiffs have specifically shown cause of action
for filing of the suit and also prayed for
specific performance of the agreement to sale
executed between the parties. Thus, it cannot be
said that the reliefs prayed for by the plaintiffs
are vague. It is also contended that while filing
an application under Order 7, Rule 11 of the Code,
the present applicant has not disclosed the "law"
under which the suit filed by the plaintiffs is
barred by law.
7. Learned Senior Counsel, thereafter, referred to
Paragraph Nos.33 to 38 of the decision rendered by
the Hon'ble Supreme Court in case of I.S. Sikandar
(supra) and after referring to the said
paragraphs, it is submitted that in the facts of
the said case, the Hon'ble Supreme Court has made
observations that when the agreement to sale was
terminated and when the plaintiffs had not sought
declaratory relief to declare the termination of
the agreement in the original suit as bad in law,
the Hon'ble Supreme Court in the facts of the said
case has observed that the suit for specific
performance is not maintainable, however, the
facts of the present case are different and,
therefore, the aforesaid decision would not be
applicable to the facts of the present case. It is
further submitted that the suit filed by the
plaintiff is not barred by any law and, therefore,
the concerned civil court has rightly dismissed
the application filed by the applicant under Order
7, Rule 11 of the Code. Learned Senior Counsel has
placed reliance upon the decision of the Hon'ble
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
Supreme Court in case of Srihari Hanumandas Totala
Vs. Hemant Vithal Kamat & Ors., delivered in Civil
Appeal No.4665/2021 by judgment dated 09.08.2021.
Learned Senior Counsel has, therefore, urged that
the trial court has not committed any error while
passing impugned order and, hence, this Civil
Revision Application be dismissed.
8. Having heard learned advocates appearing for the
parties and having gone through the material
placed on record, it would emerge that the present
respondent nos.1 to 3 - original plaintiffs have
filed suit for specific performance of the
agreement to sale executed between the concerned
parties. If the averments made in the suit are
carefully examined, the plaintiffs have given
specific details about the agreement/ agreement to
sale executed between the parties. In Paragraph
No.19 of the plaint, the plaintiffs have
specifically stated about the cause of action for
filing suit referring to the agreement to sale
dated 09.05.2013 and supplementary agreement to
sale dated 28.02.2014 and, thereafter in the
reliefs prayed for in the suit, it is prayed that
the defendants be directed to execute the sale
deed/ conveyance deed with regard to the land in
question. Thus in the facts of the present case,
it cannot be said that the reliefs prayed for by
the plaintiffs are vague.
9. The contention taken by learned advocate for the
applicant that in absence of challenge to
termination of the agreement to sale, the suit for
specific performance is not maintainable and in
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
support of the said contention, learned advocate
has placed reliance upon the decision rendered by
the Hon'ble Supreme Court in case of I.S. Sikandar
(supra). In case of I.S. Sikandar (supra), the
Hon'ble Supreme Court has discussed about the
facts of the said case and in Paragraph Nos.33 to
38, it has been observed as under,
"33. The first point is answered in favour of
the defendant No. 5 by assigning the
following reasons: it is an undisputed fact
that there is an Agreement of Sale executed
by defendant Nos. 1-4 dated 25.12.1983 in
favour of the plaintiff agreeing to sell
the schedule property in his favour for a
sum of Rs. 45,000/- by receiving an advance
sale consideration of Rs.5,000/- and the
plaintiff had further agreed that the
remaining sale consideration will be paid
to them at the time of execution of the
sale deed. As per Clause 6 of the Agreement
of Sale, the time to get the sale deed
executed was specified as 5 months in
favour of the plaintiff by the defendant
Nos.1-4, after obtaining necessary
permission from the competent authorities
such as the Urban Land Ceiling Authority
and Income Tax Department for execution and
registration of the sale deed at the cost
and expenses of the plaintiff. If there is
any delay in obtaining necessary permission
from the above authorities and the payment
of layout charges, the time for due
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
performance of agreement shall further be
extended for a period of two months from
the date of grant of such permission.
34. In the instant case, permission from the
above authorities was not obtained from
defendant Nos. 1-4. The period of five
months stipulated under clause 6 of the
Agreement of Sale for execution and
registration of the sale deed in favour of
the plaintiff had expired. Despite the
same, the defendant Nos. 1-4 got issued
legal notice dated 06.03.1985 to the
plaintiff pointing out that he has failed
to perform his part of the contract in
terms of the Agreement of Sale by not
paying balance sale consideration to them
and getting the sale deed executed in his
favour and called upon him to pay the
balance sale consideration and get the sale
deed executed on or before 18.3.1985.
35. The plaintiff had issued reply letter dated
16.3.1985 to the advocates of defendant
Nos. 1-4, in which he had admitted his
default in performing his part of contract
and prayed time till 23.05.1985 to get the
sale deed executed in his favour. Another
legal notice dated 28.03.1985 was sent by
the first defendant to the plaintiff
extending time to the plaintiff asking him
to pay the sale consideration amount and
get the sale deed executed on or before
10.04.1985, and on failure to comply with
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
the same, the Agreement of Sale dated
25.12.1983 would be terminated since the
plaintiff did not avail the time extended
to him by defendant Nos. 1-4.
36. Since the plaintiff did not perform his
part of contract within the extended period
in the legal notice referred to supra, the
Agreement of Sale was terminated as per
notice dated 28.03.1985 and thus, there is
termination of the Agreement of Sale
between the plaintiff and defendant Nos. 1-
4 w.e.f. 10.04.1985.
37. As could be seen from the prayer sought for
in the original suit, the plaintiff has not
sought for declaratory relief to declare
the termination of Agreement of Sale as bad
in law. In the absence of such prayer by
the plaintiff the original suit filed by
him before the trial court for grant of
decree for specific performance in respect
of the suit schedule property on the basis
of Agreement of Sale and consequential
relief of decree for permanent injunction
is not maintainable in law.
38. Therefore, we have to hold that the relief
sought for by the plaintiff for grant of
decree for specific performance of
execution of sale deed in respect of the
suit schedule property in his favour on the
basis of non existing Agreement of Sale is
wholly unsustainable in law. Accordingly,
the point No. 1 is answered in favour of
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
the defendant No.5."
10. Thereafter in the said decision in case of I.S.
Sikandar (supra), the Hon'ble Supreme Court has
observed in Paragraph No.55 as under,
"55. The learned High Court Judge has gravely
erred in reversing the findings of fact
recorded on the issue Nos. 3, 4 and 5 by
the trial court in favour of the
defendants. He has also failed to take into
consideration the very important aspect of
the matter, namely, that the Agreement of
Sale in favour of the plaintiff was
terminated and he had not sought
declaratory relief to declare that the
termination of agreement in the original
suit is bad in law and therefore the suit
for specific performance is not
maintainable. Even assuming for the sake of
argument that agreement was subsisting, the
suit for specific performance is not
maintainable in law in view of the breach
of the terms and conditions of the
agreement by the plaintiff. Keeping in view
the purpose for which the Agreement of Sale
was executed and the time stipulated in the
agreement as per clause 6 of the agreement,
the contract should have been complied with
within seven months including the extended
period and that has not been done by the
plaintiff. The findings recorded by the
trial court on issue Nos. 4 and 5 and with
regard to the readiness and willingness on
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
the part of the plaintiff, the appellate
court should have exercised its
discretionary power under sub-sections (1)
and (2) of Section 20 of the Specific
Relief Act, and for this reason also we
hold that the grant of the decree for
specific performance by the High Court in
the impugned judgment is wholly
unsustainable in law. The trial court has
come to the right conclusions on the
contentious issues framed by it and has
held that even though Agreement of Sale is
proved, the plaintiff is not entitled for
the decree of specific performance in
respect of the suit schedule property in
view of the findings of fact and reasons
recorded in the contentious issues by it in
its judgment and we are in agreement with
the same."
11. Thus, the Hon'ble Supreme Court has in the facts
of said case has held that the suit for specific
performance is not maintainable in law in view of
the breach of the terms and conditions of the
agreement by the plaintiffs. In the present case,
it is not the case of the present applicant -
original defendant no.1 that there is breach of
the terms and conditions of the agreement
committed by the plaintiffs. Thus, this Court is
of the view that the aforesaid decision would not
render any assistance to the present applicant in
the facts of the present case because it is the
specific case of the plaintiffs that the
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
defendants have not fulfilled the terms and
conditions and, therefore, suit has been filed.
12. In the decision of the Hon'ble Supreme Court in
case of Bhargavi Constructions (supra), the
Hon'ble Supreme Court has observed that the
expression "barred by any law" occurring in clause
(d) of Order 7, Rule 11 of the Code includes
"judicial decisions of the Supreme Court". Thus,
this Court cannot dispute proposition of law laid
down by the Hon'ble Supreme Court in the said
case. However as observed hereinabove, the Hon'ble
Supreme Court has made the observation in
Paragraph No.55 in the decision in case of I.S.
Sikandar (supra) in the facts of the said case as
discussed hereinabove. Therefore, the decision
rendered in case of Bhargavi Constructions (supra)
will not be applicable to the facts of the present
case.
13. In the decision of the Hon'ble Supreme Court in
case of Mohinder Kaur (supra), the Hon'ble Supreme
Court has observed in Paragraph No.8 as under,
8. The agreement was cancelled by the
appellant on 01.09.1989 and the
consideration already paid confiscated
under intimation to the respondent. The
respondent never challenged the
communication of cancellation. In Sikandar
(supra) it was observed as follows:
"37. As could be seen from the prayer
sought for in the original suit, the
Plaintiff has not sought for
declaratory relief to declare the
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
termination of Agreement of Sale as
bad in law. In the absence of such
prayer by the Plaintiff the original
suit filed by him before the trial
court for grant of decree for specific
performance in respect of the suit
schedule property on the basis of
Agreement of Sale and consequential
relief of decree for permanent
injunction is not maintainable in law.
38. Therefore, we have to hold that the
relief sought for by the Plaintiff for
grant of decree for specific
performance of execution of sale deed
in respect of the suit schedule
property in his favour on the basis of
non existing Agreement of Sale is
wholly unsustainable in law...."
14. In the decision of the Hon'ble Supreme Court in
case of Rajendra Bajoria (supra), the Hon'ble
Supreme Court has observed in Paragraph Nos.17 and
18 as under,
17. It could thus be seen that the court has to
find out as to whether in the background of
the facts, the relief, as claimed in the
plaint, can be granted to the plaintiff. It
has been held that if the court finds that
none of the reliefs sought in the plaint
can be granted to the plaintiff under the
law, the question then arises is as to
whether such a suit is to be allowed to
continue and go for trial. This Court
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
answered the said question by holding that
such a suit should be thrown out at the
threshold. This Court, therefore, upheld
the order passed by the trial court of
rejecting the suit and that of the
appellate court, thereby affirming the
decision of the trial court. This Court set
aside the order passed by the High Court,
wherein the High Court had set aside the
concurrent orders of the trial court and
the appellate court and had restored and
remanded the suit for trial to the trial
court.
18. Therefore, the question that will have to
be considered is as to whether the reliefs
as claimed in the plaint by the plaintiffs
could be granted or not. We do not propose
to do that exercise, inasmuch as the
Division Bench of the High Court has
elaborately considered the issue as to
whether, applying the provisions of the
said Act read with the aforesaid clauses in
the Partnership Deed, the reliefs, as
claimed in the plaint, could be granted or
not. The relevant discussion by the High
Court reads thus:
"(31)Let us take the prayers one by one.
The first prayer is for a declaration
that the plaintiffs and the defendants
are entitled to the assets and
properties of the said firm as the
legal heirs of the original partners.
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
It is trite law that the partners of a
firm are entitled only to the profits
of the firm and upon dissolution of
the firm they are entitled to the
surplus of the sale proceeds of the
assets and properties of the firm, if
any, after meeting the liabilities of
the firm, in the share agreed upon in
the partnership deed.
The partners do not have any
right, title or interest in respect of
the assets and properties of a firm so
long as the firm is carrying on
business. Hence, the plaintiffs as
legal heirs of some of the original
partners cannot maintain any claim in
respect of the assets and properties
of the said firm. Their prayer for
declaration of co-ownership of the
assets and properties of the said firm
is not maintainable in law.
The second prayer in the plaint
is for a declaration that the
plaintiffs along with the defendants
are entitled to represent the firm in
all proceedings before the concerned
authorities of the State of Bihar for
the acquisition of its Bhagalpur land.
The framing of this prayer shows that
this is a consequential relief claimed
by the plaintiffs which can only be
granted if the first prayer is
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allowed. Since, in our opinion, prayer
(a) of the plaint cannot be granted in
law, prayer (b) also cannot be
granted. Prayer (c) is also a
consequential relief. Only if the
plaintiffs were entitled to claim
prayer (a), they could claim prayer
(c). We are not on whether or not the
plaintiffs will succeed in obtaining
prayer (a). According to us, the
plaintiffs are not even entitled to
pray for the first relief indicated
above as the same cannot be granted
under the law of the land.
Consequently, prayer (c) also cannot
be granted.
Prayers (d) and (e) both pertain
to dissolution of the firm. Prayer (e)
is for a decree of dissolution and for
winding up of the affairs of the firm.
Prayer (d) is for full accounts of the
firm for the purpose of its
dissolution (emphasis is ours).
However, it is settled law that only
the partners of a firm can seek
dissolution of the firm. Admittedly,
the plaintiffs are not partners of the
said firm. Sec. 39 of the Partnership
Act provides that the dissolution of
partnership between all the partners
of a firm is called 'the dissolution
of the firm'. Sec. 40 provides that a
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firm may be dissolved with the consent
of all the partners or in accordance
with a contract between the partners.
Sec. 41 provides for compulsory
dissolution of a firm. Sec. 42
stipulates that happening of certain
contingencies will cause dissolution
of a firm but this is subject to
contract between the partners. A
partnership-at-will may be dissolved
by any partner giving notice in
writing to the other partners of his
intention to dissolve the firm, as
provided in Sec. 43 of the Act. Sec.
44 empowers the Court to dissolve a
firm on the grounds mentioned therein
on a suit of a partner.
Thus, it is clear that it is only
a partner of a firm who can seek
dissolution of the firm.The
dissolution of a firm cannot be
ordered by the court at the instance
of a non-partner. Hence, the
plaintiffs are not entitled to claim
dissolution of the said firm.
Consequently, they are also not
entitled to pray for accounts for the
purpose of dissolution of the firm.
(32) What should the Court do if it finds that
even taking the averments in the plaint at
face value, not one of the reliefs claimed
in the plaint can be granted? Should the
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Court send the parties to trial? We think
not. It will be an exercise in futility. It
will be a waste of time, money and energy
for both the plaintiffs and the defendants
as well as unnecessary consumption of
Court's time. It will not be fair to compel
the defendants to go through the ordinarily
long drawn process of trial of a suit at
huge expense, not to speak of the anxiety
and un-peace of mind caused by a litigation
hanging over one's head like the Damocles's
sword. No purpose will be served by
allowing the suit to proceed to trial since
the prayers as framed cannot be allowed on
the basis of the pleadings in the plaint.
The plaintiffs have not prayed for leave to
amend the plaint. When the court is of the
view just by reading the plaint alone and
assuming the averments made in the plaint
to be correct that none of the reliefs
claimed can be granted in law since the
plaintiffs are not entitled to claim such
reliefs, the Court should reject the plaint
as disclosing no cause of action. The
reliefs claimed in a plaint flow from and
are the culmination of the cause of action
pleaded in the plaint. The cause of action
pleaded and the prayers made in a plaint
are inextricably intertwined. In the
present case, the cause of action pleaded
and the reliefs claimed are not recognized
by the law of the land. Such a suit should
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
not be kept alive to go to trial....."
15. Keeping in view the aforesaid decisions, if the
facts of the present case as discussed hereinabove
are examined, this Court is of the view that the
reliefs prayed for by the plaintiffs cannot be
termed as "vague reliefs". Further, at the end of
trial, it is always open for the concerned civil
court to grant reliefs as prayed for by the
plaintiffs, if the plaintiffs are able to prove
their case. Thus, it is too premature to contend
that the reliefs prayed for by the plaintiffs
cannot be granted to the plaintiffs. Thus,
aforesaid two decisions upon which reliance has
been placed, are also not applicable to the facts
of the present case.
16. In the decision of the Hon'ble Supreme Court in
case of Srihari Hanumandas Totala (supra), the
Hon'ble Supreme Court has observed in Paragraph
No.20 as under,
"20. On a perusal of the above authorities, the
guiding principles for deciding an
application under Order 7 Rule 11(d) can be
summarized as follows:
(i) To reject a plaint on the ground that
the suit is barred by any law, only
the averments in the plaint will have
to be referred to;
(ii) The defense made by the defendant in
the suit must not be considered while
deciding the merits of the
application;
(iii) To determine whether a suit is
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
barred by res judicata, it is
necessary that (i) the 'previous suit'
is decided, (ii) the issues in the
subsequent suit were directly and
substantially in issue in the former
suit; (iii) the former suit was
between the same parties or parties
through whom they claim, litigating
under the same title; and (iv) that
these issues were adjudicated and
finally decided by a court competent
to try the subsequent suit; and
(iv) Since an adjudication of the plea
ofres judicata requires consideration
of the pleadings, issues and decision
in the 'previous suit', such a plea
will be beyond the scope of Order 7
Rule 11 (d), where only the statements
in the plaint will have to be
perused."
17. Keeping in view of the aforesaid decisions
rendered by the Hon'ble Supreme Court, if the
facts of the present case as discussed
hereinabove, are carefully examined, this Court is
of the view that suit filed by the plaintiffs is
not barred under any law as contended by learned
advocate for the applicant. This Court has also
gone through the reasoning recorded by the
concerned Civil Court while dismissing the
application filed by the applicant under Order 7,
Rule 11 of the Code. This Court is of the view
that no error is committed by the civil court
C/CRA/142/2021 JUDGMENT DATED: 29/11/2021
while passing impugned order and, hence, no
interference is required in the present Civil
Revision Application filed under Section 115 of
the Code.
18. Hence, the present Civil Revision Application is
dismissed.
Sd/-
(VIPUL M. PANCHOLI, J.)
Gautam
