Omprakash Gupta vs Smt. Kalpna Jadhav
2022 Latest Caselaw 4196 MP

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              IN THE HIGH COURT OF MADHYA PRADESH
                           AT GWALIOR
                                CR No. 546 of 2018
                  (OMPRAKASH GUPTA Vs SMT. KALPNA JADHAV AND OTHERS)

Dated : 25-03-2022
       Shri Praveen Kumar Chaturvedi, learned counsel for the petitioner.

       Shri K.L. Gupta, learned counsel for the respondents.

This civil revision has been filed against the order dated 24/07/2018 passed by First Civil Judge Class-2, Gwalior (M.P.) in Civil Suit No. 368-A/2015 whereby application of the petitioner/defendant filed under Section 11 of the CPC, has been dismissed.

Heard learned counsel for the parties and perused the material available on record.

Counsel for the petitioner/defendant submits that on earlier occasion Civil suit No. 168A/2007 was filed by the petitioner against the present respondent/plaintiff with regard to same property and subject matter. They filed written statement and issues were framed. Thereafter, they did not participate in the trial. The suit was decreed exparte against them. Now, the respondent/plaintiff has filed this suit on the same subject matter which is clearly hit by the principle of res judicata, still the learned Trial court has dismissed their application. The

impugned order per se illegal which is liable to be quashed. He has placed reliance in the case of Ditya (deleted) through LRs Richhu s/o Late Ditya and others Vs Kidi and others 2012(2) MPLJ 86.

Counsel for the respondent/plaintiff submits that the respondent/plaintiff is an illiterate lady. During the course of trial of earlier suit, she remained absent from proceedings owing to false assurance given by the present defendant. Thus, the decree in the earlier suit was obtained with fraud. The respondent herein has amended her suit seeking declaration to the effect that earlier ex-parte decree is null and void because the same was obtained by fraud. Thus, the learned Trial Court has not committed any illegality in dismissing the application Section 11 of the CPC.

Heard and considered.

It is well settled legal position as expounded in the above cited judgment that

if a suit has been finally decided by the Court of competent jurisdiction then subsequent suit between the same parties on same subject matter is hit by the principle of res judicata. It makes no difference whether the previous suit was decided exparte or after full contest. Even if, the previous suit is decided exparte,

the defendant can not be permitted to bring a fresh suit on the same subject matter on the pretext that the previous suit was decided exparte.

Undisputedly, in this case the parties are same in the previous suit and subsequent suit and subject matter of both the suits is also same. Previous suit was decided by the court of competent jurisdiction. Though, previous suit was decreed exparte but on this count, the defendant of previous suit can not be permitted to bring fresh suit on the same subject matter. Needless to say that if the defendant of previous suit was aggrieved by exparte decree, she could have taken recourse of Order 9 Rule 13 of the CPC or to file appeal against the judgment and decree of the previous suit. She could have taken the ground of fraud in such proceedings but she can not be allowed to bring fresh suit on same subject matter. Thus, the learned Trial Court has erred in dismissing the application filed by the petitioner.

Consequently, the revision petition is allowed. The impugned order is set- aside. The suit pending before the Trial court is dismissed being hit by principle of the res judicata under Section 11 of the CPC.

(SATISH KUMAR SHARMA) JUDGE

Prachi

PRACHI MISHRA 2022.03.25 17:08:44 +05'30'