Madras High Court
Annakodi vs Sekar on 5 September, 2023
C.R.P.(MD).No.957 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(PD)(MD)No.957 of 2019
and
C.M.P(MD) No.5416 of 2019
Annakodi ... Petitioner/Petitioner/Defendant
-vs-
Sekar ... Respondent/Respondent/ Plaintiff
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the order dated 11.09.2018 passed in
I.A.No.452 of 2018 in O.S.No.268 of 2014 on the file of the Additional
District Munsif, Thirumangalam.
For Petitioner : Mr.N.Vallinayagam
For Respondent : No appearance
ORDER
The present Civil Revision Petition has been filed by the petitioner
under Article 227 of the Constitution of India, to set aside the order dated
11.09.2018 passed in I.A.No.452 of 2018 in O.S.No.268 of 2014 on the file of
the Additional District Munsif, Thirumangalam.
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C.R.P.(MD).No.957 of 2019
2. The petitioner herein is the defendant and the respondent herein is
the plaintiff before the Court below.
3. For the sake of convenience, the parties will be referred to as per the
litigative status before the trial Court.
4. The brief facts which give rise to the instant Civil Revision Petition
is that the plaintiff has filed the suit for permanent injunction in respect of the
suit property. Wherein, the defendant has moved an application under Order 7
Rule 11 of C.P.C to reject the plaint on the ground of res judicata, as the
plaintiff has already filed a suit in O.S.No.37 of 2008 seeking similar relief
against this defendant in respect of very same property.
5. The learned counsel appearing for the petitioner would also relied
upon the judgment of this Court reported in 2008 3 MLJ 821
(M.Somasundaram and another vs. District Collector cum Accommodation
Controller, Chennai and others) and would contend that the re-litigation is
abuse of process of Court. Therefore, the plaint in O.S.No.268 of 2014 has to
be struck off from the file of the District Munsif Court, Thirumangalam.
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C.R.P.(MD).No.957 of 2019
6. There is no representation on behalf of the respondent and the notice
sent to the respondent has been returned with an endorsement as “not
known”. However, in view of the pendency of the matter, this Court is
inclined to dispose of the Civil Revision Petition in the absence of the
respondent.
7. From the submission of the learned counsel for the petitioner, the
instant suit is hit by principle of res judicata, in view of the order passed in
O.S.No.37 of 2008. However, on perusal of the plaint in O.S.No.268 of 2014,
this Court could not find any material so as to bring the defence of res
judicata.
8. It is a settled principle of law that, whenever an application being
considered under Order 7 Rule 11 of C.P.C any external document other than
the plaint document could be seen, and the same is not within the frame work
of Order 7 Rule 11 of C.P.C. In this regard, it is relevant to refer the judgment
of the Hon'ble Supreme Court reported in (2023) 3 MLJ 200 (Prem Kishore
vs. Brahm Prakash). Paragraph No.33 is as follows:
“33. On a perusal of the above authorities,
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C.R.P.(MD).No.957 of 2019
the guiding principles for deciding an application
under Order 7 Rule 11(d) of the CPC can be
summarized as follows:-
(i) 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;
(ii) The defence made by the defendant
in the suit must not be considered while
deciding the merits of the application;
(iii) To determine whether a suit is
barred by res judicata, it is necessary that
(i) the ‘previous suit’ is decided, (ii) the
issues 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; and
(iv) Since an adjudication of the plea
of res judicata requires consideration of
the pleadings, issues and decision in the
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C.R.P.(MD).No.957 of 2019
‘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.
9. In our case, in order to prove the defence of res judicata, the
petitioner did not produce any decree. However, he relied upon the plaint in
O.S.No.37 of 2008, which is not form part of the plaint document. Therefore,
when a situation has arisen to see the document which is other than the plaint
document, it can't be gone into under Order 7 Rule 11 of C.P.C. The plain
reading of the plaint do not disclose any facts for res judicata. Therefore, the
findings of the Court below in dismissing the application under Order 7 Rule
11 of C.P.C., does not require any interference.
10. In the result, this Civil Revision Petition is dismissed. Considering
the pendency of the case since 2014, this Court deems it appropriate to give a
direction to the Court below for an early disposal.
11. The Court below is directed to dispose of the suit in O.S.No.268 of
2014 as expeditiously as possible, preferably within a period of six months
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C.R.P.(MD).No.957 of 2019
from the date of receipt of the copy of this order. There shall be no order as to
costs. Consequently, the connected Miscellaneous Petition is closed.
05.09.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
To
1. The Additional District Munsif,
Thirumangalam.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.957 of 2019
C.KUMARAPPAN,J.
ebsi
C.R.P(PD)(MD)No.957 of 2019
05.09.2023
https://www.mhc.tn.gov.in/judis
