Manoj Shah vs Suresh Kumar (2023:Rj-Jd:37686)
2023 Latest Caselaw 9047 Raj

[2023:RJ-JD:37686]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 84/2023

1. Manoj Shah S/o Shri Mal Singh, Aged About 62 Years, Resident Of 199, Vakeel Colony, Sector No. 11, Udaipur, Rajasthan (Second Add- Plot No. 14-A-1, Saheliyo Ka Ki Badi Marg, In Front Of Uit Office, Udaipur.)

2. Ganpat Shah S/o Shri Raj Mal Shah, Aged About 60 Years, Resident Of 199, Vakeel Colony, Sector No. 11, Udaipur, Rajasthan (Second Add- Plot No. 14-A-1, Saheliyo Ka Ki Badi Marg, In Front Of Uit Office, Udaipur.)

3. Laxman Shah S/o Shri Raj Mal Shah, Aged About 57 Years, Resident Of 199, Vakeel Colony, Sector No. 11, Udaipur, Rajasthan (Second Add- Plot No. 14-A-1, Saheliyo Ka Ki Badi Marg, In Front Of Uit Office, Udaipur.)

4. Vipul Shah S/o Shri Laxman Shah, Aged About 35 Years, Resident Of 199, Vakeel Colony, Sector No. 11, Udaipur, Rajasthan (Second Add- Plot No. 14-A-1, Saheliyo Ka Ki Badi Marg, In Front Of Uit Office, Udaipur.)

5. Viral Shah S/o Shri Laxman Shah, Aged About 31 Years, Resident Of 199, Vakeel Colony, Sector No. 11, Udaipur, Rajasthan (Second Add- Plot No. 14-A-1, Saheliyo Ka Ki Badi Marg, In Front Of Uit Office, Udaipur.)

6. Vishal Shah S/o Shri Manoj Shah, Aged About 34 Years, Resident Of 199, Vakeel Colony, Sector No. 11, Udaipur, Rajasthan (Second Add- Plot No. 14-A-1, Saheliyo Ka Ki Badi Marg, In Front Of Uit Office, Udaipur.)

7. Vaibhav Shah S/o Shari Ganpat Shah, Aged About 29 Years, Resident Of 199, Vakeel Colony, Sector No. 11, Udaipur, Rajasthan (Second Add- Plot No. 14-A-1, Saheliyo Ka Ki Badi Marg, In Front Of Uit Office, Udaipur.)

----Petitioners Versus

1. Suresh Kumar S/o Shri Dharam Chandra Porwal, Resident Of 14-A-2, Saheli Marg, Udaipur, Rajasthan.

2. Municipal Board, Udaipur Through Its Commissioner.

----Respondents

[2023:RJ-JD:37686] (2 of 3) [CR-84/2023]

For Petitioner(s) : Mr. Manoj Bhandari, Sr. Adv. assisted by Mr. Prateek Surana

HON'BLE MS. JUSTICE REKHA BORANA

Order

03/11/2023

1. The present revision petition has been preferred against the

order dated 25.04.2023 passed by the Civil Judge (North),

Udaipur whereby an application under Order VII Rule 11 of the

Code of Civil Procedure (CPC) as preferred by defendants No.1 to

7 has been rejected.

2. The first ground as raised in the application under Order VII

Rule 11, CPC by the defendants is that earlier a suit for the same

cause was preferred wherein a compromise was entered into

between the parties and hence the present suit is barred by

'constructive res judicata' and cannot be entertained by the Court.

The second ground raised was that the suit is barred under

Section 41(h) of the Specific Relief Act, 1963 ('the Act of 1963')

which provides for an alternative remedy to the plaintiff.

3. The Court below', vide impugned order, rejected the

application as preferred by the defendants with the specific

observation that the ground of 'constructive res judicata' as raised

by the defendants could have been decided only after an issue

being framed and evidence being led on the same.

So far as the ground pertaining to Section 41(h) of the Act of

1963 is concerned, the Court specifically observed that the said

provision does not speak about maintainability of the suit but

speak only about bar on injunction being granted.

[2023:RJ-JD:37686] (3 of 3) [CR-84/2023]

4. In the specific opinion of this Court, so far as the issue of

constructive res judicata is concerned, even otherwise, in view of

latest judgment of Hon'ble Apex Court in Keshav Sood Vs. Kirti

Pradeep Sood & Ors., Civil Appeal No.5841/2023 (decided

on 12.09.2023), the issue of res judicata is beyond the purview of

Order VII Rule 11, CPC and the same cannot be decided on an

application under Order VII Rule 11, CPC. Hence, the finding of

the Court below to that extent does not deserve any interference.

So far as the second ground of the suit being barred in terms

of Section 41(h) of the Act is concerned, the finding as given by

the Court below is totally in consonance with law as the said

provision does not bar maintainability of the suit. Section 41 of the

Act of 1963 spells out the conditions when an injunction has to be

refused. Whether any decree for injunction can be granted in

favour of the plaintiff; whether the relief as prayed for by the

plaintiff falls within the purview of Section 41(h) of the Act of

1963; etc. are the questions which can be decided only after

adjudication. By all means, it cannot be a ground for rejection of

the plaint under Order VII Rule 11, CPC.

5. In view of above observations, this Court is not inclined to

interfere with the impugned order and the revision petition is

therefore dismissed.

6. The stay petition and the pending applications, if any, also

stand dismissed.

(REKHA BORANA),J 11-Vij/-

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