Gurcharan Singh And Others vs Jaswant Kaur And Others
2023 Latest Caselaw 1749 P&H

CR-4314-2019 (O&M)                                                      -1-

     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH

                                CR-4314-2019 (O&M)
                                Date of decision: 27.01.2023

Gurcharan Singh and others
                                                             ...Petitioners
                  Versus

Jaswant Kaur and others

                                                           ...Respondents

CORAM: HON'BLE MR.JUSTICE H.S. MADAAN

Present:    Mr. Aakash Singla, Advocate for the petitioners.

            None for the respondents.

                                *****

H.S. MADAAN, J.

A suit was filed by plaintiff Jaswant Kaur and her daughter

Kiranjeet Kaur against Gurcharan Singh, husband of plaintiff No.1 as

well as Amritpal Singh, Kulwinder Singh, Gurpreet Singh and Jeet

Singh, all residents of Village Jahagir, Tehsil Dhuri, District Sangrur,

praying for grant of permanent injunction, restraining the defendants

from dispossessing the plaintiffs from the suit land illegally and

forcibly without due course of law. Such suit having been filed in the

Court of Civil Judge (Jr. Divn.) Dhuri.

2. On getting notice, the defendants appeared and filed an

application under Order 7 Rule 11 CPC seeking rejection of the plaint

and initiation of action against the plaintiffs for perjury in terms of

Sections 340 and 195 Cr.P.C. According to the defendants, the plaintiff

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No.1 had filed a civil suit bearing No.89 of 26.04.2011 titled as

'Gurcharan Singh Vs. Jeet Singh' against defendants No.1 and 5

seeking relief of permanent injunction restraining the defendants No.1

and 5 from forcibly dispossessing Gurcharan Singh son of Hazura

Singh from the suit property. Gurcharan Singh son of Hazura Singh is

reported to have expired with plaintiffs stepping into footsteps of

Gurcharan Singh, therefore, the instant suit by legal heirs of Gurcharan

Singh regarding the same property is barred by principle of res

judicata, therefore, the plaint is liable to be rejected. A photocopy of

judgment and decree passed in Civil Suit No.89 of 26.04.2011 decided

on 22.12.2014 was attached therewith.

According to the defendants, the plaintiffs have filed the

suit regarding that very property, which was subject matter of earlier

suit No.89 of 26.04.2011 which had been dismissed, vide judgment and

decree dated 22.12.2014. That fact had been intentionally concealed by

the plaintiffs from the Court. In that way, committed offence of perjury.

3. That application was resisted on behalf of the plaintiffs.

4. After hearing arguments, the trial Court of Civil Judge (Jr

Divn.) Dhuri, vide impugned order dated 09.05.2019 had dismissed the

application. The operative part of the order is being reproduced as

under for ready reference:-

" After hearing the contentions of both the sides and perusing the case file, it is fairly concluded that previous suit between the party with regard to the permanent

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injunction which was dismissed. However the issue of res judicata with regard to the suit on permanent injunction cannot be held to be applicable. Moreover, when the legal heirs for come up to seek a relief of permanent injunction against those only against whom they alleging threat perceptions on basis of alleged started by sufficient grounds as pleaded by them in their plaint. The case cannot be thrown out in the limine without proper adjudication on merits. The relief of permanent injunction can arise at any time. In case the relief of permanent injunction is not found in any previous litigation, it does not mean that the the threat perception would have come to an end for all times to come in future. Therefore, the present plaintiff is the legal representative of Gurcharan Singh son of Hazura Singh. As such they do have chances to possess threats from separately and as such have separate right which shall be decided in the light of evidence on the basis of cogent and convincing evidence. The present application being devoid of merits is hereby dismissed."

5. Feeling aggrieved by the said order, the defendants have

approached this Court by way of filing the present revision petition,

notice of which was given to the respondents, who had initially put in

appearance but subsequently stopped appearing.

6. I have heard learned counsel for the revision petitioners

besides going through the record.

7. A perusal of the record goes to show that the defendants

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had filed an application under Order 7 Rule 11 CPC mainly taking up

plea that a similar suit filed by the plaintiffs regarding this very land

had been dismissed, therefore, according to the defendants, the second

suit filed was barred by principle of res judicata which cannot proceed

and the plaint deserves to be rejected for that reason.

However, the Apex Court in a recent judgment Srihari

Hanumandas Totala Vs. Hemant Vithal Kamat & Ors., 2021 (3)

RCR (Civil) 768 has observed that res judicata is not a ground to reject

the plaint under Order 7 Rule 11 (d) CPC.

Therefore, the plaint could not be rejected for such like

reason and request was rightly declined by the trial Court.

8. When learned counsel for the petitioners was confronted

with such position, he submitted that the suit is barred under Order 9

Rule 9 CPC and Section 10 CPC also. He stated that although the

defendants in the application filed by them have not specifically

mentioned that suit is barred by Order 9 Rule 9 CPC, however, a

perusal of the application seeking rejection of plaint filed by the

defendants goes to show that no such specific objection has been taken

therein. It being so, this Court while exercising revisional jurisdiction

cannot make out a new case for defendants that the suit is hit by Order

9 Rule 9 CPC as well as Section 10 CPC. If the defendants so desired,

they could have taken a specific objection in that regard in the

application but it was not so done and now the revision petitioners

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want the Court to do this job for them, which cannot be done. Such

type of objections may be taken before the trial Court and not before

the High Court when it is exercising revisional jurisdiction.

Learned counsel for the petitioners has referred to

judgments Shekhar Verma Vs. Raj Gupta & Ors. in CR-5173-2017

decided on 04.12.2018, A.E. Rathina Naicker Vs. V. Thirumalai,

2017 (4) MLJ 40, Vinod Kumar Singh & Ors. Vs. Devraj Singh &

Ors., 2015(35) RCR (Civil) 319 and Ramesh Kumar Sharma Vs.

The Ambassador, Royal Netherlands Embassy, 2002(1) SCT 761.

9. The judgments are not applicable due to different facts and

circumstances and the context in which such observations have been

made. The order passed by the trial Court is quite detailed, well

reasoned and it does not suffer from any illegality or infirmity. No

reason is there to interfere with such order by exercising revisional

jurisdiction. The revision petition is found to be without merit and is

dismissed accordingly.

27.01.2023                                          (H.S. MADAAN)
sumit.k                                                 JUDGE


             Whether speaking/reasoned :      Yes          No
             Whether Reportable :             Yes          No




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