Jharkhand High Court
Sukhdeo Mahto vs Akhileshwar Mahto on 21 October, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 299 of 2022
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Sukhdeo Mahto .... .... .... Petitioners
Versus
1. Akhileshwar Mahto
2. Manoj Kumar Mehta
3. Sunita Kumari
4. Saranti Devi
5. Bajaranti Devi
6. Jagranti Devi
7. Sitaram Mahto
8. Chhedi Mahto
9. Kamla Devi
10. Bimla Devi
11. Umesh Chandra Mehto
12. Ramprit Mahto
13. Banarsi Mahto
14. Urmila Devi
15. Sonpatia Devi .... .... .... Opposite Parties
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Petitioners : Mr. Arbind Kumar Sinha, Advocate
For the Opp. Parties :
Oral Order
04/ Dated : 21.10.2022
The instant petition has been filed to set aside the order dated
05.01.2022 passed in Original Suit No.205 of 2021 by Civil Judge, Jr.
Division I, Palamau by which the suit has been admitted for hearing and the
notices has been issued against defendants. Petitioner is defendant no.1 in the
original suit.
2. The admission of the suit and issuance of the notice has been
challenged on the ground that petitioner/defendant no.1 had instituted suit for
partition of his entire ancestral property on 13.02.1985 which was registered
as Partition Suit No.15 of 1985. In the said partition suit, defendant no.3, who
happens to be the father of opposite party no.1, 4-6 and grandfather of
opposite party nos.2 and 3, appeared, filed the written statement and contested
the suit. In this suit (Partition Suit No.15 of 1985), it was specifically pleaded
that the subject matter of the present Original Suit No.205 of 2021, were not
included in the suit for partition. This issue was decided and held that the said
land exclusively belonged the petitioner and as such was not the subject matter
of partition. The finding of the Trial Court has attained finality. In the First
Appellate Court, in Partition Appeal No.12 of 2007. This fact has been
admitted in para 14 of the plaint of Original Suit No.205 of 2021.
3. Despite this, the present suit has been admitted which is barred by res
judicata. This fact has not been stated in the report of the Serestedar.
4. It is also admitted in para 16 of the plaint of O.S. No.205 of 2021 that
Original No.63 of 2015 has been dismissed for non-prosecution and non-
compliance with the previous order under Order IX Rule 8 of the C.P.C.
5. It is argued on behalf of the opposite parties that Original Suit No.63
of 2015 was dismissed for default and such dismissal does not amount to a
decree and shall therefore be not hit by the principles of res judicata.
6. The sum and substance of the instant petition is that Original Suit
No.205 of 2021 was barred by res judicata and therefore, it should not have
been admitted and notices issued against the petitioners.
7. Whether a matter was directly and substantially issued in a formal
suit, is to be determined by reference to the plaint, the written statement, the
issues and the judgment. Even if a point is not properly raised in the plaint, yet
if both parties join issues upon a matter in dispute, the decision will operate as
res judicata. At the stage of institution of the plaint, under Section 26 of
C.P.C., these facts cannot be ascertained and therefore, the contention of the
petitioner that the admission and issuance of notice was barred, is not tenable.
It has been held in Kamala v. K.T. Eshwara Sa, (2008) 12 SCC 661
"23. The principles of res judicata, when attracted, would bar another suit in
view of Section 12 of the Code. The question involving 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, but, the said question cannot be
determined at that stage."
Under the aforesaid facts and circumstance, I find the instant petition
to be pre mature for considering the plea of res judicata.
The Civil Miscellaneous Petition is accordingly dismissed. No costs.
(Gautam Kumar Choudhary, J.)
Anit
