Smt. Santoshi Bai vs Maheshchand
2023 Latest Caselaw 7839 MP

                                                             1
                            IN    THE       HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE PRANAY VERMA
                                                  ON THE 12 th OF MAY, 2023
                                                CIVIL REVISION No. 99 of 2022

                           BETWEEN:-
                           SMT. SANTOSHI BAI D/O LATE DEVI SINGH, AGED
                           ABOUT 35 YEARS, OCCUPATION: SERVICE, R/O: C.H. 44
                           OPP. MATAJI MANDIR SURAJMAL JAIN NAGAR,
                           RATLAM (MADHYA PRADESH)

                                                                                          .....PETITIONER
                           (BY SHRI PEYUSH JAIN - ADVOCATE FOR THE PETITIONER)

                           AND
                           1.    MAHESHCHAND S/O LATE HARAKCHAND, AGED
                                 ABOUT 70 YEARS, OCCUPATION: AGRICULTURE,
                                 R/O: VILLAGE JAMGOD TEHSIL AND DISTRICT
                                 DEWAS (MADHYA PRADESH)

                           2.    JAY SINGH S/O RAYSINGH, AGED ABOUT 30
                                 YEAR S, OCCUPATION: LABOUR, R/O: P AND T
                                 COLONY, RATLAM (MADHYA PRADESH)

                           3.    RADHACHARAN S/O BABULAL, AGED ABOUT 60
                                 Y E A R S , OCCUPATION: LABOUR,  R/O: 31,
                                 PANCHAM KI FAIL, INDORE (MADHYA PRADESH)

                           4.    STATE  OF    MADHYA   PRADESH THROUGH
                                 COLLECTOR, DEWAS (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                           (BY SHRI RAVINDRA KUMAR VYAS - ADVOCATE FOR RESPONDENT
                           NO.1)

                                 T h is revision coming on for order this day, t h e cou rt passed the
                           following:
                                                              ORDER

With the consent of learned counsel for the parties, the matter is finally

Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 16-05-2023 13:03:43

heard.

02. This revision under Section 115 of the CPC has been preferred by defendant No.1 against the order dated 20.10.2021 passed by the IInd Civil Judge, Class-II, Dewas whereby his application under Order 7 Rule 11 of the CPC for rejection of the plaint on the ground of the same being barred by the doctrine of res-judicata has been rejected and he has been directed to file his written statement and the issue of res-judicata has been directed to be decided as a preliminary issue.

03. It is contended on part of defendant No.1 that the plaintiff has very mischievously and conveniently omitted to disclose regarding the ultimate result

of earlier litigation in the plaint and has only stated that an S.L.P. was preferred before the Supreme Court but has not disclosed its outcome. In the plaint, there is no averment whatsoever as to how subsequent to the judgment in the earlier litigation, the fact situation has changed which has given him a new cause of action to institute the present claim. The defendant No.1 has brought all the relevant record of the previous litigation before the Court hence by looking into the same, the trial Court ought to have decided the application under Order 7 Rule 11 of the CPC on merits and to have rejected the plaint. Reliance has been placed on the decisions of the Supreme Court in Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) dead through Legal Representatives and Others (2020) 7 SCC 366.

04. Per contra, learned counsel for the plaintiff has submitted that in the plaint, the plaintiff has categorically pleaded about the earlier litigation and has also clearly spelt out as to in what manner a new cause of action has accrued to him to institute the present claim which is hence not barred by the doctrine of res-judicata. In any case, the issue of res-judicata is a mixed question of fact Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 16-05-2023 13:03:43

and law as has been held by the trial Court and the same cannot be decided merely on the basis of the documents on record without recording of evidence. The impugned order hence cannot be faulted with. Reliance has been placed on AIR 2007 Patna 1 Kapildeo Prasad and Another Vs. Ramanand Prasad and Others.

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

06. It is well settled that generally the issue of res-judicata is a mixed question of law and facts and is not a pure question of law. The same ought to be ordinarily decided alongwith all the other issues on merits after evidence having been adduced by the parties. However in the present case, it is apparent that there was a litigation between the parties up to the Supreme Court. Though, plaintiff has stated about the same in the plaint but has only stated that an S.L.P. was preferred before the Supreme Court but has not averred its outcome. The said facts have been brought on record by defendant No.1. From a perusal of the plaint, it is apparent that plaintiff has not narrated the entire facts which are legal proceedings and cannot be disputed.

07. The trial Court hence ought to have considered and decided the application of defendant No.1 on merits rather then directing him to file his written statement with further observation that upon framing of issues the issue

of res-judicata would be decided as a preliminary issue. In doing so, it has failed to exercise jurisdiction vested in it.

08. Consequently, the impugned order is set aside and the matter is remanded back to the trial Court to re-decide the application of defendant No.1 under Order 7 Rule 11 of the CPC on merits by taking into consideration, the

Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 16-05-2023 13:03:43

averments of the plaint and the documents filed alongwith the same and the documents of the earlier litigation produced by defendant No.1 before the Court. However, the trial Court shall ensure that the certified copies of pleadings of the earlier suit and the judgments rendered therein are available on record.

09. With the aforesaid directions, the revision stands disposed off.

10. It is however made clear that this Court has not express any opinion on merits of the case. The record of the Court below be sent back to it forthwith. The parties are directed to appear before the Trial Court on 14.06.2023.

(PRANAY VERMA) JUDGE Shilpa

Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 16-05-2023 13:03:43