Maya Devi vs Nand Kishore Sah
2023 Latest Caselaw 4443 Jhar

Jharkhand High Court

Maya Devi vs Nand Kishore Sah on 6 December, 2023

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        (Civil Miscellaneous Jurisdiction)
                            C.M.P. No.652 of 2022
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Maya Devi, W/o Late Subhash Sah, D/o Late Chandi Sah, aged about 59 years, Resident of village Chamaridih, P.O. and P.S. Jasidih, Sub-division and District-Deoghar, at present residing at village Babhangama, P.O. and P.S. Sarath, Sub-divisional Madhupur, District-Deoghar .... .... .... Defendant/Petitioner Versus

1. Nand Kishore Sah, S/o Gajadhar Sah

2. Ashish Kumar Gupta, S/o Nand Kishor Sah

3. Ajit Kumar Gupta, S/o Nand Kishore Sah All residents of village Chamaridih, P.O. and P.S. Jasidih, Sub- division and District-Deoghar, at present residing at Kalirakha, Deoghar, P.O., P.S. and District-Deoghar .... .... .... Plaintiffs/Opposite Parties

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Coram: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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For the Petitioner : Mr. Vineet Prakash, Advocate For the Respondents : Mr. Lalit Yadav, Adv.

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Order No.09 Dated- 06.12.2023 Heard learned counsel for the parties.

2. The instant civil miscellaneous has been filed challenging the order dated 10.06.2022 passed by learned Civil Judge(Sr. Division)- VI, Deoghar in Title Suit No.196 of 2016, whereby and whereunder the prayer of petitioner/defendant for rejection of plaint under Order VII, Rule 11(1)(d) of CPC has been rejected.

3. It appears that after institution and admission of the suit, the petitioner/defendant has filed her written statement taking a plea inter alia that Title Partition Suit No.07 of 1997 was filed by one Kapuri Sah against his brother namely Kailu Sah and others, where the plaintiff and defendant No.1 were impleaded as defendants by invoking the provision of order 1 rule 10 of CPC. It was also alleged that adoption of plaintiff No.1 by said Chandi Sah was an issue framed by the Court for adjudication, between the same parties, in connection with the same subject matter, which was finally heard and disposed off by the then competent court against the plaintiff and the judgment/decree has attended finality, therefore, the present suit is barred by res-judicata.

Petitioner/defendant has also filed a separate petition in the Title Suit No.196 of 2016 for rejection of plaint on the aforesaid grounds. The learned court below after considering the above averments of the plaint and judgment of Hon'ble Apex Court rendered in the case of Srihari Hanumandas Totala vs. Hemant Vithal Kamat & Ors. reported in (2019) 9 SCC 99, wherein it was observed that since an adjudication of plea of res-judicata requires consideration of the pleading, issues and decision in the previous suit, such a plea will be beyond the scope of Order VII, Rule 11(1)(d) of CPC. Moreover, the questions of the res-judicata are mixed- questions of law and facts, which may be considered after settlement of the suit as a preliminary issue.

4. It is admitted by both parties that up-till now issue has not been framed in this case. Therefore, I do not fining any cogent reasons to interfere with the impugned order, accordingly, this civil miscellaneous petition is dismissed.

(Pradeep Kumar Srivastava, J.) Pappu/