Punjab-Haryana High Court
Savitri And Others vs Rameshwar And Others on 16 December, 2023
2023:PHHC:161971
C. R. No. 7624 of 2023 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Sr. No.107
Case No. : C. R. No. 7624 of 2023
Date of Decision : December 16, 2023
Savitri and others .... Petitioners
vs.
Rameshwar and others .... Respondents
CORAM : HON'BLE MR. JUSTICE GURBIR SINGH.
* * *
Present : Mr. Surinder Gandhi, Advocate
for the petitioners.
* * *
GURBIR SINGH, J. :
1. Challenge in this revision petition filed under Article 227 of the
Constitution of India is to the order dated 09.10.2023 (Annexure P-7),
passed by learned Civil Judge (Junior Division), Jhajjar (for brevity - the
Trial Court), whereby application under Order 7 Rule 11 CPC, filed by
defendants/petitioners, for rejection of plaint, has been dismissed.
2. The brief facts, as culled out from the paper-book, are that
plaintiffs/respondents filed a Civil Suit dated 12.02.2011 against the
defendants/petitioners, which was dismissed vide judgment and decree dated
24.02.2015 (Annexure P-1). Appeal against the said judgment and decree
was filed on 11.03.2015, which was allowed vide judgment dated
31.08.2018. Since there was a clerical error in the said judgment passed in
the appeal, the defendants/petitioners moved application for correction and
the said error was rectified vide order dated 13.10.2018. The
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plaintiffs/respondents did not file any regular second appeal against the
judgment and decree dated 31.08.2018 or the order dated 13.10.2018.
Rather, they filed another Civil Suit No.835 of 2018 dated 27.09.2018
(Annexure P-4). So, the defendants/petitioners moved application dated
20.11.2018 (Annexure P-5) for rejection of plaint of the plaintiffs/
respondents as the matter stood already adjudicated and the new suit filed by
the plaintiffs/respondents was not maintainable. The said application has
been dismissed by the learned Trial Court vide impugned order dated
09.10.2023.
3. Learned counsel for the petitioner has submitted that there was
no fresh cause of action to file the second suit. Hence, the learned Trial
Court has committed error in dismissing the application filed by the
defendants/petitioners for rejection of plaint as the second suit on the same
cause of action is not maintainable.
4. I have heard learned counsel for the petitioners and perused the
case file.
5. Earlier, plaintiffs/respondents filed suit against Jagdish Chander
(predecessor-in-interest of petitioners no.1 to 3) and petitioners no.4 and 5
(all were defendants before the learned Trial Court) for permanent
injunction. In the said case, plaintiffs/respondents pleaded that they are
exclusive owners in possession of the disputed plot shown by letters ABCD
in red colour, situated within abadi deh of the village. One of the issues
framed in the said case was :-
"1. Whether the plaintiffs are entitled for a
decree for permanent injunction by
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restraining the defendants from interfering
into the peaceful possession of the plaintiffs
upon the suit land? OPP
6. The said suit was decreed vide judgment and decree dated
24.02.2015 (Annexure P-1) and a decree of permanent injunction in favour
of plaintiffs/respondents was passed by restraining the defendants/
petitioners from interfering in possession of the plaintiffs/respondents over
the plot, as mentioned in site plan (Ex.P-1), except in due course of law. In
para no.22 of the said judgment, it has been specifically held that -
"22. Thus, from the part of documentary
evidence of previous litigation on behalf of the
ancestors of the plaintiffs, it stands proved on
record that neither plaintiffs nor their ancestors
have been owners of the disputed plot but the
defendants have been owner of the same."
7. Defendants/petitioners filed appeal against the aforesaid
judgment and decree dated 24.02.2015, which was allowed vide judgment
and decree dated 31.08.2018 (Annexure P-2). The plaintiffs/respondents
had also filed cross-objections that the findings recorded by the learned Trial
Court in respect of the sale deed dated 28.05.2001 are against law and facts
and the Court has erred in declaring the said sale deed as legal and valid.
The cross-objections were dismissed. The second suit has been filed for
declaration and consequential relief of permanent injunction on the ground
that plaintiffs/respondents are owners in possession of the plot, with
boundaries, as mentioned in para no.1 of the plaint (Annexure P-4). The
question is whether the suit is barred by res-judicata or not. In the case Syed
Mohd. Salie Labbai (Dead) by LRs vs. Mohd. Hanifa (Dead) by LRs
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reported as (1976) 4 SCC 780, it is held that before a plea of res-judicata can
be given effect, the four conditions require to be proved. These conditions
are :
"1. The litigating parties must be the same.
2. The subject matter of the suit also must be
identical.
3. The matter must be finally decided between
the parties.
4. The suit must be decided by a court of
competent jurisdiction."
8. So, for proving the said conditions, pleadings of the previous
both the suits are required to be taken into consideration. In Swamy
Atmandanda vs. Sri Ramakrishna, Tapovanam reported as (2005) 10
SCC 51, it was held by Hon'ble Supreme Court that :
"26. The object and purport of principle of
res judicata as contended in Section 11 of the
Code of Civil Procedure is to uphold the rule of
conclusiveness of judgment, as to the points
decided earlier of fact, or of law, or of fact and
law, in every subsequent suit between the same
parties. Once the matter which was the subject-
matter of lis stood determined by a competent
court, no party thereafter can be permitted to
reopen it in a subsequent litigation. Such a rule
was brought into the statute book with a view to
bring the litigation to an end so that the other side
may not be put to harassment.
27. The principle of res judicata envisages
that a judgment of court of concurrent jurisdiction
directly upon the point would create a bar as
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regard a plea between the same parties upon some
other matter directly in question in another court
and that the judgment of the court of exclusive
jurisdiction direct in point."
9. Since the questions involved in the instant case are : whether
the findings of lis are barred by res judicata or not and title is decided or not,
these are the questions which can only be decided by learned Trial Court in
view of Section 11 CPC. At the time of passing order under Order 7 Rule
11 CPC, the Court is only to see the averments in the plaint and not beyond
that.
10. The learned Trial Court has rightly dismissed the application
under Order 7 Rule 11 CPC. I do not find any infirmity, perversity or
illegality in the same. Accordingly, there is no merit in the present revision
petition and the same is accordingly dismissed in limine. However, the
defendants/petitioners are at liberty to take all the pleas, in the written
statement, before the learned Trial Court and to agitate the question of res
judicata there, as and when so advised.
11. The findings recorded above are only for the decision of this
revision petition only and are not binding on any other proceedings.
12. Pending applications, if any, shall stand disposed of along with
this judgment.
December 16, 2023 (GURBIR SINGH)
monika JUDGE
Whether speaking/reasoned ? Yes/No.
Whether reportable ? Yes/No.
