Vijay Kumar Jain vs Mukesh Kumar Jain
2023 Latest Caselaw 8488 MP

                                                             1
                           IN     THE       HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                    BEFORE
                                   HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                                 ON THE 13 th OF JUNE, 2023
                                               CIVIL REVISION No. 366 of 2023

                          BETWEEN:-
                          VIJAY KUMAR JAIN S/O SHRI RATANCHAND JAIN,
                          AGED ABOUT 46 YEARS, R/O. KAPDA BAZAR SILVER
                          TALKIES ROAD DISTT. KATNI M.P. (MADHYA
                          PRADESH)

                                                                                          .....PETITIONER
                          (SHRI VIJAY KUMAR JAIN-PETITIONER IN PERSON)

                          AND
                          1.    MUKESH KUMAR JAIN S/O LATE KALURAM JAIN,
                                AGED ABOUT 54 YEARS, R/O. KAPDA BAZAR
                                SILVER TALKIES ROAD DISTT. KATNI M.P.
                                (MADHYA PRADESH)

                          2.    AASHI COLLECTION R/O RAJASTHAN BHAWAN,
                                GARG CHOURAHA ROAD KATNI TEHSIL AND
                                JILA KATNI (MADHYA PRADESH)

                                                                                       .....RESPONDENTS


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

This civil revision has been preferred by the petitioner/defendant 1 challenging the order dated 15.02.2023 passed by Second Additional Judge to the court of First Civil Judge, Senior Division, Katni in civil suit No.189-A/2017 whereby defendant 1's application under section 11 CPC has been dismissed.

2. The petitioner submits that after withdrawal of previous suit without any

Signature Not Verified liberty, the respondent 1 can not file fresh suit and the same is barred by the Signed by: SWETA SAHU Signing time: 6/14/2023 4:47:32 PM

principle of res judicata.

3. Upon asking about dismissal of previous application, as has been mentioned in the impugned order, the petitioner submitted that he previously moved an application under Order 7 Rule 11 CPC for rejection of the plaint, which was allowed by the trial court vide its final order dated 11.08.2018 and holding the instant suit to be barred by the provisions of Order 23 Rule 1(4)

(a)&(b) CPC, learned court dismissed/rejected the plaint under Order 7 Rule 11

(d). Upon filing appeal by the plaintiff, the order dated 11.08.2018 was set aside and vide final judgment dated 31.10.2018 passed by Fourth Additional District Judge, Katni in regular civil appeal no.119/2018, the matter was remanded to

trial court for decision of civil suit afresh. The judgment and decree dated 31.10.2018 has further been affirmed by this Court vide order dated 31.03.2021 passed in MA No.5565/2018 with the further direction to the trial court to dispose of the case according to law.

4. Heard the petitioner in person.

5. In my considered opinion and in view of the aforesaid admitted facts regarding dismissal of application filed by the petitioner/defendant 1 under Order 7 Rule 11 CPC seeking rejection of the plaint on the ground of bar contained in Order 23 Rule 1(4)(a)&(b) CPC, the petitioner cannot be heard again on the same question by way of fresh application under Section 11 CPC.

6. However, the plea of res judicata, if any, taken by the defendant can only be seen after framing of issues and after recording evidence of the parties.

7. As such, in my considered opinion learned court below has not committed any illegality in passing the impugned order and in dismissing the application under Section 11 CPC.

Signature Not Verified Signed by: SWETA SAHU Signing time: 6/14/2023 4:47:32 PM

8. Resultantly, the civil revision fails and is hereby dismissed.

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

(DWARKA DHISH BANSAL) JUDGE ss

Signature Not Verified Signed by: SWETA SAHU Signing time: 6/14/2023 4:47:32 PM