A. Narsimha Reddy vs G. Srinivas Reddy
2021 Latest Caselaw 1672 Tel

Citation : 2021 Latest Caselaw 1672 Tel
Judgement Date : 18 June, 2021

Telangana High Court

A. Narsimha Reddy vs G. Srinivas Reddy on 18 June, 2021

Bench: A.Rajasheker Reddy

          HON'BLE SRI JUSTICE A.RAJASHEKER REDDY

               Civil Revision Petition No.758 of 2021

ORDER:

This Civil Revision Petition is filed against order dated

17.02.2021 in I.A.No.2206 of 2019 in O.S.No.540 of 2019

wherein and whereby the Court below dismissed the application

filed by the petitioners under Order VII Rule 11 (d) of CPC to

reject the plaint in OS No.540 of 2019 as barred by law.

Heard Sri Kuturu Ravinder Reddy, learned counsel for the

petitioners and Sri B.Chandrasen Reddy, learned Senior Counsel

representing Sri V.Manoj Kumar, learned counsel for the

respondent.

Learned counsel for the petitioners submit that earlier two

suits i.e., OS No.459 of 2004 and OS No.1926 of 2005 have been

filed by the vendors of the petitioners on similar subject matter

and same were dismissed as withdrawn. That O.S No.540 of 2019

is barred under Order VII rule 11 CPC as well as under Order

XXIII Rule 2 CPC. He also submits that the suit is filed by playing

fraud on the court and the same is vexatious one and that the

court below has not considered the said issue in proper

perspective.

On the other hand, Sri B.Chandrasen Reddy, learned Senior

Counsel for the respondent submits that the petitioners and the

respondent are not parties to the earlier round of litigation in the

suits. He submits that Order VII Rule 11 CPC petition is not

maintainable on the ground that the suit is barred by res-judicata

and the said issue has to be tried by framing an issue in the suit,

as such, the trial Court rightly relying on several judgments of

this Court as well as Hon'ble Apex Court dismissed the

application and that no exception can be taken. In support of his

contention, he relied on the judgment in Kamala v. K.T.

Eshwara Sa, (2008) 12 SCC 661.

In this case, it is to be seen that I.A.No.2206 of 2019 is filed

for rejection of plaint stating that the same is barred under Order

VII Rule 11 CPC as well as under Order XXIII Rule 2 of CPC.

Admittedly, neither the petitioners nor the respondent are parties

to earlier suits i.e., OS No.459 of 2004 and OS No.1926 of 2005

and the trial Court also found the same. Plaint can also not be

rejected under Order VII Rule 11 CPC on the plea of res-judicata.

An enquiry regarding said plea cannot be the subject matter in

an application under Order VII Rule 11 CPC as held by the

Hon'ble Apex Court in Kamala v. K.T. Eshwara Sa, (2008) 12

SCC 661 which reads as follows;

"23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage."

Order XXIII Rule 2 is only withdrawal of suit and petitioners

and respondent are not parties to the earlier suits, as such, on

that ground, the plaint cannot be rejected.

Learned counsel for the petitioner also tried to argue the

case on merits which can only be considered during the course of

trial, as such, the trial Court after going through the factual

aspects, after referring to the several judgments of this court as

well as the Hon'ble Apex Court, passed a reasoned and elaborate

order and no infirmity or illegality is brought to the notice of this

court by the petitioner for interdiction under Article 227 of the

Constitution of India.

Accordingly, the Civil Revision Petition is dismissed. There