Madhya Pradesh High Court
Ayub Khan vs Sahida (Shaheeda) Bi on 27 February, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 27 th OF FEBRUARY, 2023
CIVIL REVISION No. 429 of 2022
BETWEEN:-
1. AYUB KHAN S/O LATE SHRI HABIB, AGED ABOUT
70 YEARS, VILLAGE BADPANI POST
CHAMARIKHURD CHHAPARA TAH. LAKHNADON
DISTT. SEONI (MADHYA PRADESH)
2. ASHFAQUE S/O LATE KHALIL, AGED ABOUT 36
Y E A R S , R/O NOORI MASZID UNTKHNA,
CHHINDWARA TAHSIL AND DISTRICT
CHHINDWARA (MADHYA PRADESH)
3. MUSHTAQUE S/O LATE KHALIL, AGED ABOUT 35
Y E A R S , R/O NOORI MASZID UNTKHNA,
CHHINDWARA TAHSIL AND DISTRICT
CHHINDWARA (MADHYA PRADESH)
4. AFROZ S/O LATE KHALIL, AGED ABOUT 34 YEARS,
R/O NOORI MASZID UNTKHNA, CHHINDWARA
TAHSIL AND DISTRICT CHHINDWARA (MADHYA
PRADESH)
5. NIKHAT S/O LATE KHALIL, AGED ABOUT 40
Y E A R S , R/O NOORI MASZID UNTKHNA,
CHHINDWARA TAHSIL AND DISTRICT
CHHINDWARA (MADHYA PRADESH)
6. ASIF S/O SHRI AYUB, AGED ABOUT 34 YEARS, R/O
VILLAGE, BADPANI POST CHAMARIKHURD,
CHHAPARA, TAHSIL LAKHADAON DISTRICT
SEONI (MADHYA PRADESH)
7. SHERJAMA S/O LATE SHRI HABIB, AGED ABOUT
72 YEARS, R/O VILLAGE, BADPANI POST
CHAMARIKHURD, CHHAPARA, TAHSIL
LAKHADAON DISTRICT SEONI (MADHYA
PRADESH)
8. JAVED KHAN S/O SHERJAMA, AGED ABOUT 36
Y E A R S , R/O VILLAGE, BADPANI POST
CHAMARIKHURD, CHHAPARA, TAHSIL
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 2/28/2023
1:12:09 PM
2
LAKHADAON DISTRICT SEONI (MADHYA
PRADESH)
9. SABIR KHAN (SHABIR KHAN) S/O LATE HABIB
KHAN, AGED ABOUT 62 YEARS, R/O VILLAGE,
BADPANI POST CHAMARIKHURD, CHHAPARA,
TAHSIL LAKHADAON DISTRICT SEONI (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI A.K. JAIN, ADVOCATE)
AND
1. SAHIDA (SHAHEEDA) BI D/O LATE HABIB KHAN,
AGED ABOUT 60 YEARS, ASHOK WARD OPP. TIPU
KIRANA LIB CHOWK SEONI (MADHYA PRADESH)
2. SANJEEDA BI D/O HABIB KHAN, AGED ABOUT 58
YEAR S, ASHOK WARD OPP. TIPU KIRANA LIB
CHOWK SEONI (MADHYA PRADESH)
3. JUBEDA BIW/O SHRI GANI MASTER D/O SHRI
HABIB KHAN, AGED ABOUT 74 YEARS, R/O
SHAKEEL KIRANA DUKAN, INFRONT OF
PRIMARY SCHOOL HADDI GODAM SEONI TAHSIL
AND DISTRICT SEONI (MADHYA PRADESH)
4. ABDUL RAFIQUE KHAN S/O LATE SHRI RASHID
KHAN, AGED ABOUT 48 YEARS,
5. ABDUL KHALID KHAN S/O LATE SHRI RASHID
KHAN, AGED ABOUT 45 YEARS,
6. RAJIK KHAN S/O LATE SHRI RASHID KHAN,
AGED ABOUT 44 YEARS,
7. ABDUL ABID KHAN S/O LATE SHRI RASHID
KHAN, AGED ABOUT 42 YEARS,
8. ABDUL FARUQ KHAN S/O RASHID KHAN, AGED
ABOUT 36 YEARS,
RESPONDENTS 4 TO 8 ARE R/O BAZAR CHOWK
KURAI, TAHSIL KURAI, DISTRICT SEONI M.P.
(MADHYA PRADESH)
9. SAMEEMA BI (SHAMEEMA BI) D/O SHRI RASHID
KHAN W/O SHRI AMANUMULLA PATEL, AGED
ABOUT 40 YEARS, R/O PINDKAPAR POST
KHAMARPANI TAH. SAUSAR DISTRICT
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 2/28/2023
1:12:09 PM
3
CHHINDWARA (MADHYA PRADESH)
10. RUBINA BI D/O SHRI RASHID KHAN W/O SHRI
MAULANA HANIF KHAN, AGED ABOUT 38 YEARS,
R/O BD COLONY, KALNANA ROAD HAZI NAGAR
TAH. KAMTHI DISTRICT NAGPUR
(MAHARASHTRA)
11. FAMIDA BI @ KUBRA BI D/O LATE SHRI HABIB
KHAN W/O SHRI MATEEN KHAN, AGED ABOUT 64
YEAR S, R/O ASHOK WARD INFRONT OF TIPU
K I R A N A LIB CHOWK SEONI TAHSIL AND
DISTRICT SEONI (MADHYA PRADESH)
12. JULEKHA BI D/O SHRI HABIB KHAN W/O SHRI
MUSTAQI BEG,, AGED ABOUT 58 YEARS, R/O
NEAR CHHOTI MASJID PATHANI MOHALLA,
MAILANA WARD, PANAGER, TAHSIL AND
DISTRICT JABALPUR (MADHYA PRADESH)
13. STATE OF M.P. THROUGH THE COLLECTOR
SEONI SEONI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI GAJENDRA PARASHAR, PANEL LAWYER FOR
RESPONDENT/STATE)
Th is revision coming on for hearing this day, th e court passed the
following:
ORDER
This civil revision has been preferred by the applicants/defendants
challenging the order dated 07/04/2022 passed by 2nd Civil Judge Junior
Division, Lakhnadaun, District Seoni in C.S. No.30-A/2018, whereby
defendants/applicants' application under Section 11 CPC has been dismissed,
holding thereby that property and parties being different in both the civil suits,
the suit on the ground under Section 11 CPC cannot be dismissed.
Learned counsel for the applicants submits that learned Court below has
erred in dismissing the application even without perusing the judgment given in
previous suit, so also the pleadings of the previous civil suit. He submits that on
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 2/28/2023
1:12:09 PM
the basis of material available on record, especially in the light of averments
made in the present plaint, the application should have been allowed and in any
case the issue of res judicata should have been decided after framing of
preliminary issue.
Heard learned counsel for the applicants and perused the impugned
order, plaint and available record.
Prima facie, the findings recorded in the impugned order dated
07/04/2022 do not appear to be illegal or contrary to record.
However, without expressing any opinion on merits and demerits of the
case and in the light of decision of Supreme Court in the case of Srihari
Hanumandas Totala Vs. Hemant Vithal Kamat (2021) 9 SCC 99, it is
directed that learned trial Court shall decide the question of res judicata after
framing of issue and after recording evidence of the parties.
With the aforesaid, the civil revision is disposed off.
Interim application(s), if any, shall stand disposed off.
(DWARKA DHISH BANSAL)
JUDGE
RS
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 2/28/2023
1:12:09 PM
