Pratap vs Smt. Shanti Bai
2023 Latest Caselaw 12655 MP

                                                     1
                          IN    THE     HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                  BEFORE
                                 HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                           ON THE 7 th OF AUGUST, 2023
                                          CIVIL REVISION No. 526 of 2023

                         BETWEEN:-
                         1.    PRATAP S/O LATE NANDU KURMI, AGED ABOUT
                               68 YEARS, OCCUPATION: AGRICULTURIST R/O
                               VILLAGE PARASRI TEONDA TEHSIL RAHATGARH
                               DISTRICT SAGAR (MADHYA PRADESH)

                         2.    NIRPAT S/O LATE NANDU KURMI, AGED ABOUT
                               42 YEARS, OCCUPATION: AGRICULTURIST R/O
                               VILLAGE PARASRI TEONDA TEHSIL RAHATGARH
                               DISTRICT SAGAR (MADHYA PRADESH)

                         3.    MANOJ @ GUDDAN S/O LATE NANDU KURMI,
                               AGED    ABOUT    37    YEARS, OCCUPATION:
                               AGRICULTURIST R/O VILLAGE PARASRI TEONDA
                               TEHSIL RAHATGARH DISTRICT SAGAR (MADHYA
                               PRADESH)

                                                                            .....PETITIONERS
                         (BY SHRI SHYAM YADAV AND SHRI A.K. KURMI-ADVOCATES)

                         AND
                         1.    SMT. SHANTI BAI W/O LATE HALKAI KURMI,
                               AGED ABOUT 58 YEARS, R/O OARASRI TEONDA
                               TEHSIL RAHATGARH DISTRICT SAGAR (MADHYA
                               PRADESH)

                         2.    GOLU S/O LATE HALKAI KURMI, AGED ABOUT 26
                               Y E A R S , R/O  PARASRI  TEONDA   TEHSIL
                               RAHATGARH       DISTRICT SAGAR   (MADHYA
                               PRADESH)

                         3.    ARCHANA D/O LATE HALKAI KURMI, AGED
                               ABOUT 34 YEARS, R/O PARASRI TEONDA TEHSIL
                               RAHATGARH    DISTRICT    SAGAR   (MADHYA
                               PRADESH)

                         4.    AARTI D/O LATE HALKAI KURMI, AGED ABOUT 28
                               Y E A R S , R/O PARASRI  TEONDA    TEHSIL
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 8/8/2023
4:48:58 PM
                                                            2
                               RAHATGARH        DISTRICT       SAGAR    (MADHYA
                               PRADESH)

                         5.    BRIJMOHAN @ GUDDUA S/O LATE HALKAI
                               K U R M I R/O  PARASRI  TEONDA   TEHSIL
                               RAHATGARH     DISTRICT SAGAR   (MADHYA
                               PRADESH)

                         6.    STATE OF MADHYA PRADESH THROUGH
                               COLLECTOR SAGAR DISTRICT SAGAR (MADHYA
                               PRADESH)

                                                                                     .....RESPONDENTS
                         (SHRI SATISH PATERIYA-PANEL LAWYER FOR RESPONDENT 6/STATE)

                               This revision coming on for admission this day, th e court passed the
                         following:
                                                            ORDER

This civil revision has been preferred by the applicants/defendants 1-3 challenging the order dtd. 15.06.2023 passed by 9th Civil Judge Junior Division, Sagar whereby applicants/defendants 1-3's application under Order 7 Rule 11 CPC has been dismissed.

2. Learned counsel submits that on the same set of facts, previous suit filed by Brijmohan was decided vide judgment and decree dtd. 28.02.2022, which was modified by learned first appellate court vide judgment and decree dtd. 28.09.2022 and the judgment and decree dtd. 28.09.2022 attained finality as nobody challenged the same. Learned counsel submits that in previous suit respondents 1-4 supported the defendant 4-Brijmohan, who were claiming rights through deceased Halkai Kurmi. As such he submits that the present suit is barred by res judicata and the learned court below has erred in dismissing the application under Order 7 Rule 11 CPC on the ground that certain documents have not been filed, whereas all the documents mentioned in the impugned order are available on record. Accordingly, he submits that the civil

Signature Not Verified Signed by: SWETA SAHU Signing time: 8/8/2023 4:48:58 PM

revision deserves to be allowed.

3. Heard learned counsel for the applicants and perused the record.

4. Bare perusal of the application under Order 7 Rule 11 CPC shows that it has been filed on the ground that the previous judgments and decrees dtd. 28.02.2022 and 28.09.2022 operate res judicata to the present suit.

5. Without going into merits and demerits of the submissions made orally and by way of application under Order 7 Rule 11 CPC, I am of the considered opinion that in the light of decision of the Supreme Court in the case of Srihari Hanumandas Totala Vs. Hemant Vithal Kamat & others (2021) 9 SCC 99, the plea of res judicata available under Section 11 CPC cannot be raised by way of application under Order 7 Rule 11 CPC.

6. In view of aforesaid, no interference is called for in the impugned order. Resultantly, this civil revision fails and is hereby dismissed.

7. Interim application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE ss

Signature Not Verified Signed by: SWETA SAHU Signing time: 8/8/2023 4:48:58 PM