Madhya Pradesh High Court

Rajendra Kumar vs Onkarlal on 24 March, 2022

Author: Pranay Verma

1
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA

CIVIL REVISION No. 755 of 2019

Between:-
RAJENDRA KUMAR S/O PANNALALJI BUTALA,
AGED ABOUT 60 YEARS, OCCUPATION: ADVOCATE
R/O 55, BHOJ MARG JHABUA (MADHYA PRADESH)

.....PETITIONER
(BY SHRI VINAY GANDHI, ADVOCATE)

AND

1. ONKARLAL S/O PANNALALJI BUTALA, AGED
ABOUT 81 YEARS, 54, BHOJ MARG JHABUA
(MADHYA PRADESH)

Respondent No.1 Onkarlal S/o Pannalalji Butala through
legal heirs:
A. Smt. Vibha W/o Shri Onkarlal Shah,
Aged 73 years, Occ: Housewife.
B. Shri Manoj S/o Shri Onkarlal Shah,
Aged 52, years, Occ: Advocate.
C. Shri Rakesh S/o Shri Onkarlal Shah,
Aged 50, years, Occ: Teacher.
D. Ms. Abha D/o Shri Onkarlal Shah,
Aged 46, years.
E. Ms. Archana D/o Shri Onkarlal Shah,
Aged 44, years.
All R/o 56 Bhoj Marg, Jhabua,
District-Jhabua.
2 . THROUGH CHIEF MUNICIPAL OFFICER NAGAR
PALIKA PARISHAD JHABUA NAGAR PALIKA
PARISHAD JHABUA (MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI A.S. KUTUMBLE, LEARNED SENIOR COUNSEL WITH SHRI
BALDEEP SINGH GANDHI, ADVOCATE )

Reserved on:14.02.2022
ORDER

(Passed on 24.03.2022) By this revision preferred under Section 115 of the Code of Civil Procedure, the petitioner/defendant No.1 has challenged the order dated 25.09.2019 passed in Civil Suit No.1-A/2014 by the Ist Additional District Judge, District Jhabua, whereby his applications under Order 7 Rule 11 and Order 2 Rule 2 of the CPC have been rejected.

02. The facts of the case are that the original plaintiff Onkarlal, since Signature Not Verified SAN

deceased, now being represented through his legal representatives, had instituted Digitally signed by JYOTI CHOURASIA Date: 2022.03.25 16:14:30 IST an action against defendant No.1/petitioner bearing Civil Suit No.53-A/2004 in the

Court of Additional Civil Judge, Class-I, Jhabua with respect to the suit property. The said suit was dismissed by judgment and decree dated 10.10.2005. First Appeal No.48-A/2005 preferred by Onkarlal was dismissed by the First Appellate Court by judgment and decree dated 17.04.2007; further affirmed in Second

Appeal No.641 of 2007 by this Court by order dated 11.08.2011.

03. Thereafter, Onkarlal filed the instant suit before the trial Court on 04.08.2015 with respect to the suit property which was also the property of the earlier suit. On 07.02.2017 the petitioner filed an application under order 7 Rule 11 of the CPC for rejection of the plaint on the ground that no cause of action has accrued to respondent No.1, and that the suit is barred by principle of res judicata and under the provisions of under Order 2 Rule 2 of the CPC. The respondent No.1 filed his reply to the application.

04. By order dated 11.03.2017, the trial Court directed the petitioner to file his written statement stating that the objection taken by him in his application under Order 7 Rule 11 CPC shall be considered only thereafter. The application was disposed off. The petitioner subsequently filed his written statements on 12.07.2017. Issues were framed by the trial Court on 17.07.2017. Issue No.5 was to the effect as to whether the suit is barred by the doctrine of res judicata and issue No.6 was as to whether the suit is barred under the provisions of Order 2 Rule 2 of the CPC.

05. The petitioner then filed an application on 28.07.2017 under Order 14 Rule 2 of the CPC for decision of aforesaid issues as preliminary issues. By order dated 22.09.2017, the trial Court observed that the said issues are issues of facts and law hence shall be decided along with other issues upon recording of evidence. On 19.01.2018, the petitioner filed an application under Order 2 Rule 2 of the CPC submitting that as respondent No.1 had omitted to claim the relief in the previous suit as has been claimed by him in the instant suit, the said relief is barred by law. The respondent No.1 filed his reply to the said application.

06. By the impugned order dated 25.09.2019, the applications under Order 7 Signature Not Verified SAN Rule 11 of the CPC and under Order 2 Rule 2 of the CPC filed by the petitioner Digitally signed by JYOTI CHOURASIA has been dismissed by the trial Court on the ground that by order dated 22.09.2017 Date: 2022.03.25 16:14:30 IST

his application under Order 14 Rule 2 of the CPC for deciding issues 5 & 6 as preliminary issues has already been rejected which order has not been challenged by him and has attained finality, hence the applications cannot be allowed.

07. The learned counsel for the petitioner submits that on application under Order 7 Rule 11 of the CPC filed by the petitioner earlier, by order dated 11.03.2017, the trial Court had itself observed that the said application shall be considered after filing of written statement hence could not have rejected the said application only because order dated 22.09.2017 was not challenged by him. The applications under Order 7 Rule 11 and under Order 2 Rule 2 of the CPC were

required to be independently considered and decided on merits and could not have been declined to be adjudicated upon only in view of order dated 22.09.2017. The scope under 14 Rule 2 of the CPC was limited to determining whether the issues framed could be decided as preliminary issues and there was no determination of the matter on merits. In any case the power under order 7 Rule 11 of the CPC can be exercised at any stage of the trial.

08. The learned counsel for respondent No.1 on the other hand has submitted that issues No.5 & 6 framed by the trial Court relate to the issue as to whether the suit is barred by doctrine of res judicata or under Order 2 Rule 2 of the CPC. Petitioner's application for deciding these issue as preliminary issues has already been rejected by order dated 28.07.2017 observing that they have to be decided on merits after recording of evidence. The said order has not been challenged by the petitioner hence has attained finality. The issues raised in the application under order 7 Rule 11 and under Order 2 Rule 2 of the CPC are already comprised in the issues framed by the trial Court which have been directed to be decided upon recording of evidence hence trial Court has not committed any error in passing the impugned order.

09. I have heard the learned counsel for the parties and have perused the record.

10. By order dated 11.03.2017, while considering petitioner's application

Signature Not Verified under order 7 Rule 11 of the CPC, the trial Court had observed that the objection SAN

Digitally signed by JYOTI as raised by the petitioner in the application shall be kept pending and shall be CHOURASIA Date: 2022.03.25 16:14:30 IST considered after filing of written statement by him. The application was

accordingly disposed off by it. Thus there did not remain any application pending filed by petitioner under order 7 Rule 11 of the CPC to be adjudicated upon by the trial Court at a subsequent stage. No fresh application under order 7 Rule 11 of the CPC was filed by petitioner subsequently. The trial Court however considered the application to be pending and decided/rejected the same by the impugned order. As there was no application pending the order rejecting such an application is of no consequence.

11. On specific pleadings having been taken by the petitioner in his written statement, issues have been framed by the trial Court to the effect as to whether the suit is barred by the doctrine of res judicata or is barred under order 2 Rule 2 of the CPC. Petitioner's prayer for deciding these issues as preliminary issues has been rejected by the trial Court by order dated 22.09.2017 by observing that these issues are issues of fact and law and can only be decided along with the other issues after recording of evidence. The said order has not been challenged by the petitioner and has attained finality.

12. Thus, what was held by the trial Court by order dated 22.09.2017 was that the dispute in the instant suit as to whether the same is barred by doctrine of res judicata or under order 22 Rule 2 of the CPC shall be decided after recording of evidence along with other issues. It thus cannot be said that such adjudication was merely a consideration of question as to whether those issues deserves to be decided as prelimanory issues. The subsequent application under order 2 Rule 2 of the CPC filed by petitioner, though was an independent application, but the ground raised therein was non-maintainability of the suit being hit by provisions of under order 2 Rule 2 of the CPC, which has already been held by the trial Court to be determinable only after recording of evidence of the parties.

13. Even if the application under order 7 Rule 11 of the CPC filed by petitioner is treated to have been pending at the time of passing of the impugned order, then also it is evident that the grounds taken therein have already been directed to be decided by the trial Court after recording of evidence. Thus, after passing of the order dated 22.09.2017, the trial Court could not have entered upon Signature Not Verified SAN

Digitally signed by JYOTI CHOURASIA Date: 2022.03.25 16:14:30 IST the question as regards maintainability of the suit on grounds as raised by petitioner

in his applications under order 2 Rule 2and under order 7 Rule 11 of the CPC even if the said application is treated to be pending.

14. The trial Court has hence not committed any irregularity in rejecting both the applications of petitioner. Thus, I do not find any merit in this revision which is accordingly dismissed.

(PRANAY VERMA) JUDGE jyoti

Signature Not Verified SAN

Digitally signed by JYOTI CHOURASIA Date: 2022.03.25 16:14:30 IST