Madras High Court
C.Srinivasan vs Akbar Ali on 16 June, 2022
1 C.R.P(PD).No. 1024 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.06.2022
CORAM:
THE HONOURABLE MR. JUSTICE K.KUMARESH BABU
C.R.P.(PD).No. 1024 of 2016
and C.M.P.No.5697 of 2016
C.Srinivasan ... Petitioner
/Vs/
1.Akbar Ali
2.P.M.Mohammad Samsuddin ... Respondents
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India, against the fair and decreetal order dated 11.01.2016, made in
I.A.No.171 of 2015 in O.S.No.157 of 2014 on the file of the learned
Principal Subordinate Court at Krishnagiri.
For Petitioner : Mr.S.Parthasarathy
Senior Counsel
for Mr.P.Dinesh Kumar
For Respondents : No appearance
_______
ORDER
The instant Revision Petition has been filed by the defendants in the
suit in O.S.No.157 of 2014 on the file of the Principal Sub-ordinate Judge,
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Krishnagiri, wherein, the application filed by the petitioner in Order VII
Rule 11 of C.P.C., to reject the plaint has been dismissed.
2. The case of the petitioner is that he had purchased properties under
four sale deeds dated 27.02.2012 from the respondents. It was an agreement
between the parties to this petition that if the respondents herein paid a sum
of Rs.75,00,000/- (Rupees Seventy Five Lakhs) within a period of five
months, then the petitioner will reconvey the lands. However, the
respondents herein started to interfere with the possession and enjoyment of
the property which insisted him to initiate O.S.Nos.222 & 223 of 2012 on
the file of the District Munsif Court, Krishnagiri, praying for a permanent
injunction restraining the respondents from interfering with the properties
purchased by him from the respondents.
3. The said suit was decreed and on appeal, the 1st Appellate Court
has reversed the judgment and decree, against which the petitioner had
preferred the Second Appeal before this Court. The Second Appeal came to
be allowed by a detailed judgment and decree dated 11.03.2021, restoring
the judgment and decree passed in O.S.Nos.222 & 223 of 2012.
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4. The respondents herein have not entered appearance inspite of
notice in the Second Appeal also. It was also submitted that the respondents
herein had initiated O.S.No.157 of 2014, seeking to cancel/ set aside the
sale deeds dated 27.02.2012. The petitioner had taken out an application to
reject the plaint inter-alia contending that the issues in the said suit had
already been decided in the suit filed by the petitioner and hence, is hit by
Section 11 of C.P.C. The respondent herein had filed counter submission
repudiating the claim of the petitioner.
5. The learned trial Judge by his order dated 11.01.2016 had
dismissed the application under Order VII Rule 11 holding that the suit filed
by the petitioner was a suit for bare injunction and that the suit that is in
issue is with respect of declaration and hence, the issue decided in this case
will be different from the issue that were decided in the suit filed by the
petitioner.
6. The learned senior counsel appearing on behalf of the petitioner
vehemently contended that the Court below without appreciating the
materials on record had dismissed his application for rejection of plaint. He
had also submitted that this Court had confirmed the judgment and decree
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passed by the learned trial Judge by its judgment and decree made in
Second Appeal Nos. 171 and 172 of 2018 dated 11.03.2021. Thereby,
confirming the title of the petitioner. Hence, the present suit is hit by
principles of res judicata.
7. The learned Senior counsel also relied upon the judgment in the
case in Nesammal and another Vs Edward and another reported in 1998 3
CTC Page 165. This Court, in its decision has held that the provisions of
Order VII Rule 11 are not exhaustive and that the Court has got inherent
powers to see that the vexatious litigations are not allowed to consume the
time of the Court.
8. I have carefully considered the submissions made by
Mr.S.Parthasarathy, learned Senior Counsel for Mr.P.Dinesh Kumar, learned
Counsel appearing on behalf of the petitioner and perused the materials
available on record.
9. The present petition has been filed under Order VII Rule 11 read
with Section 11 of C.P.C. It is well established principles of law that a Court
while dealing with an application Order VII Rule 11 shall be only guided by
the averments made, if the plaint to see whether the plaint is hit by any of
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the instances stipulated in Order VII Rule 11 of C.P.C. As seen, the present
petition has been filed under Order VII Rule 11 read with Section 11 C.P.C.
i.e., to reject the plaint as has been hit by the principles of res judicata. For
the purpose of adjudicating whether the issue in a suit has been directly or
indirectly decided in a former suit, it is necessary for the Court to travel
beyond the plaint which has been deprecated by this Court and also the
Hon’ble Apex Court on many ocassions.
10. I would like to place reliance on the latest judgment of the
Hon’ble Apex Court in the case of Srihari Hanumandas Totala v. Hemant
Vithal Kamat reported in 2021 9 SCC page 99. The Apex Court in clear
terms has held as follows:
“25. On a perusal of the above authorities, the guiding
principles for deciding an application under Order 7 Rule
11(d) can be summarised as follows:
25.1. To reject a plaint on the ground that the suit is barred
by any law, only the averments in the plaint will have to be
referred to.
25.2. The defence made by the defendant in the suit must not
be considered while deciding the merits of the application.
25.3. To determine whether a suit is barred by res judicata, it
is necessary that (i) the “previous suit” is decided, (ii) the issues
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in the subsequent suit were directly and substantially in issue in
the former suit; (iii) the former suit was between the same
parties or parties through whom they claim, litigating under the
same title; and (iv) that these issues were adjudicated and finally
decided by a court competent to try the subsequent suit.
25.4. Since an adjudication of the plea of res judicata
requires consideration of the pleadings, issues and decision in
the “previous suit”, such a plea will be beyond the scope of
Order 7 Rule 11(d), where only the statements in the plaint will
have to be perused.”
11. I am bound by the decision of the Hon’ble Apex Court, wherein,
it has been clearly held that the pleadings, issues and decisions in the
previous suit will be beyond the scope of Order VII Rule 11(d).
12. For the reasons stated above, the above Civil Revision Petition
fails and is dismissed. Considering the pendency of the suit for nearly a
decade, the learned trial Judge is directed to expedite the matter and dispose
of the above suit as early as possible but not later than six months from the
date of receipt of a copy of this order.
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13. Accordingly, this Civil Revision Petition is dismissed. No costs.
Consequently, connected miscellaneous petition is also closed.
16.06.2022
gba
To
The Principal Sub-ordinate Judge,
Krishnagiri
https://www.mhc.tn.gov.in/judis K.KUMARESH BABU, J.
gba
C.R.P.(PD).No. 1024 of 2016
and C.M.P.No.5697 of 2016
16.06.2022
https://www.mhc.tn.gov.in/judis
