Rajasthan High Court

Ramesh Chand Gupta (Tungawala) vs Mahesh Kanungo S/O Shri Bhagwan ... on 17 October, 2023

Bench: Mahendar Kumar Goyal

[2023:RJ-JP:30069]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                S.B. Civil Revision Petition No. 239/2023

1.Ramesh Chand Gupta (Tungawala), President, Khandelwal
Vaish Mahasabha, Ganga Mandir Station Road, Jaipur 302006
2.Khandelwal Vaish Mahasabha, Ganga Mandir Station Road,
Jaipur 302006 through Pradhanmantri Shri Naresh Rawat.
                                                    ----Petitioners/Defendants
                                     Versus
Mahesh Kanungo S/o Shri Bhagwan Sahay Kanungo, Aged About
60 Years, Resident Of 125, Krishna Nagar, Teen Dukan, Sikar
Road, Jaipur Rajasthan
                                                        ----Respondent/Plaintiff

For Petitioner(s)          :     Mr. Pankaj Thakuria
For Respondent(s)          :     Mr. Mohit Khandelwal



       HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

                           Judgment / Order

17/10/2023

This civil revision petition is directed against the order dated

14.09.2023 passed by the learned Additional District Judge No.6,

Jaipur Metropolitan-II, Jaipur (for brevity "the learned trial Court")

in Civil Suit CIS No.397/2013 whereby, an application filed by the

petitioners/defendants (hereinafter referred to as "the

defendants") under Order 7 Rule 11 CPC, has been dismissed.

The relevant facts in brief are that the respondent/plaintiff

(for short "the plaintiff") filed a suit for declaration, mandatory

and permanent injunction against the defendants stating therein

that he has been a life time member of the defendant No.1-

Khandelwal Vaish Mahasabha (for brevity "the Mahasabha") since

the year 1979. It was averred that vide order dated 29.07.2023

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issued by the defendant No.2, his primary membership was

suspended pending enquiry and thereafter, vide order dated

05.08.2023, the defendant No.2 expelled him from membership

for a period of six years in violation of the provisions contained

under the constitution of the Mahasabha. Therefore, the decree as

aforesaid was prayed for. Therein, the defendants filed an

application under Order 7 Rule 11 CPC raising objection as to

maintainability of the suit on account of the provisions contained

in the Arbitration and Conciliation Act, 1996 (for short" the Act of

1996"). The application has been dismissed by the learned trial

Court vide order dated 14.09.2023, impugned herein.

Assailing the order, learned counsel for the defendants

submits that the learned trial Court erred in dismissing the

application without appreciating that Clause 22 of the constitution

of the Mahasabha provides for resolution of disputes by a five

member committee and it further bars filing of any suit by a

member directly to the Civil Court. He, therefore, prays that the

civil revision petition be allowed, the order dated 14.09.2023 be

quashed and set aside and their application under Order 7 Rule 11

CPC be allowed. He, in support of his submissions, relies upon a

judgment of the Hon'ble Supreme Court of India in case of M/s.

Asian Avenues Pvt. Ltd. versus Sri Syed Shoukat Hussain:

2023 (2) Apex Court Judgments 037 (S.C.).

Per contra, learned counsel for the plaintiff would submit that

the learned trial Court did not er in dismissing the application filed

by the defendants under Order 7 Rule 11 CPC. He submits that on

an earlier occasion, an application filed by the defendants under

Section 8 of the Act of 1996 raising similar objection was

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dismissed by the learned trial Court vide order dated 05.09.2023

which operates as res judicata in the instant case. He, therefore,

prays for dismissal of the revision petition.

Heard. Considered.

Indisputably, the defendants have filed an application under

Section 8 of the Act of 1996 for referring the matter to the

Arbitrator in view of Clause 22 of the constitution of the

Mahasabha. Recording a categorical finding that Clause 22 of the

constitution of the Mahasabha had no applicability in the instant

case as also that in view of challenge in the suit by the plaintiff to

the provisions of Clause 22 of the constitution of the Mahasabha,

the plaintiff could not be debarred from his civil right to file the

suit, learned trial Court dismissed the application vide order dated

05.09.2023. Thereafter, in the garb of the application under Order

7 Rule 11 CPC, the defendants have raised similar objection. It is

trite law that principle of res judicata as also constructive judicata

is applicable at the subsequent stages in the same proceedings.

In case of Munni Devi (Smt.) & Ors. Vs. Ramsahai

(Since Deceased) Thro' LR & Ors.: 2023 (2) DNJ (Raj.) 730,

this Court held as under:-

"5. Indisputably, the petitioners have filed an earlier application dated 16.04.2021 under Order 7 Rule 11 CPC seeking rejection of the plaint alleging that without seeking declaration as to his khatedari rights, the suit filed by the plaintiff was not maintainable. The application came to be dismissed by the learned trial Court vide its order dated 19.08.2021 which has attained finality. Thereafter, the instant application filed by the petitioners raising similar objection has been dismissed vide order dated 15.11.2022,

[2023:RJ-JP:30069] (4 of 5) [CR-239/2023]

impugned herein. It is trite law that the principles of res judicata/constructive judicata are applicable in the subsequent stages of same proceedings during pendency of the suit. A co-ordinate Bench of this Court has, in case of Sahina Vs. Returning Officer (Panchayat) Gram Panchayat Jhiwana, Panchayat Samiti Tijara & Ors., S.B. Civil Writ Petition No.6916/2017, vide order dated 10.05.2017 held as under:-

"6. Of importance in the case is the fact of an earlier application under Order 7 Rule 11 CPC which was dismissed by the trial, court on 12-2-2016. The RC did not in the said application set up a ground under Rule 81 of the Rules of 1994 with regard to the election petition not being presented by the election petitioner or by one duly authorised by her in writing. The RC at the stage of final arguments then filed the second application under Order 7 Rule 11 CPC which has been dismissed by the impugned order by the trial court. Section 141 CPC provides that the procedure provided in the Code of Civil Procedure in regard to suits shall be followed, as far as it can be made applicable in all proceedings in any court of civil jurisdiction. That would apply to applications under Order 7 Rule 11 CPC. I am of the considered view that thus an application under Order 7 Rule 11 CPC in a suit/election petition can be laid only on one occasion and repeated applications under the aforesaid provision cannot be filed nor could have been conceivably contemplated in law. Were it to be so, there would be multiple applications under Order 7 Rule 11 CPC leading to enormous delays in the disposal of the suits/election petitions. Issues of resjudicata would also arise on such multiple applications under Order 7 Rule 11 CPC.

7. The Apex Court in the case of Y.B. Patil Vs. Y.L. Patil [AIR 1977 SC 392] reiterated the well settled legal position that the principles of res judicata can be invoked not only in separate subsequent proceedings, but also get attracted in subsequent stage of the same proceedings. The RC not having invoked Rule 81 of the Rules of 1994 in her first application under Order 7 Rule 11 CPC, which was dismissed on 12-2- 2016, (and which order has attained finality),

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she could not have filed the second application under Order 7 Rule 11 CPC purporting to invoke Rule 81 of the Rules of 1994. Such an application was barred by constructive res judicata."

6. In the present case, a perusal of the application filed by the petitioners under Order 7 Rule 11 CPC reveals that the same plea has been raised which was raised in the earlier application. Therefore, the learned trial Court did not err in dismissing the application inter alia on the ground of res judicata.

In view thereof, this Court is of the considered view that the

findings recorded by the learned trial Court vide order dated

05.09.2023 while dismissing the application filed by the

defendants under Section 8 of the Act of 1996, would operate as

res judicata and the learned trial Court did not err in dismissing

the application filed by them under Order 7 Rule 11 CPC on this

count. The judgment of the Hon'ble Supreme Court of India in

case of M/s. Asian Avenues Pvt. Ltd. (supra) has no

applicability in the present case having been rendered in entirely

different facts and circumstances.