Sri Nalin Kumar Shah vs Sri Nalkari Raju
2023 Latest Caselaw 813 Tel

         HONOURABLE SRI JUSTICE P.NAVEEN RAO

        CIVIL REVISION PETITION NO.2176 OF 2022

                       Date: 17.02.2023

Between:

Sri Nalin Kumar Shah,
s/o. Sri Mohandas Shah,
Aged about 66 years,
Occu: Business,
r/o. 4-5-538, Hanuman Tekdi,
Hyderabad and another.
                                          ..... Petitioners/
                                              Petitioners/
                                              Defendants
     and

Sri Nalkari Raju s/o. late Sri Anjaiah,
Aged about 53 years, occu: Labour,
r/o.17-7-307/B, Brahmanvadi,
Yakutpura, Hyderabad.

                                          .....Respondent/
                                             Respondent/
                                                 plaintiff




The Court made the following:
                                                                            PNR,J
                                                              CRP No.2176 of 2022
                                     2


            HONOURABLE SRI JUSTICE P.NAVEEN RAO

        CIVIL REVISION PETITION NO.2176 OF 2022

ORDER:

Respondent instituted O.S.No.76 of 2019 in the Court

of XXVI Additional Chief Judge, City Civil Court at Hyderabad

praying to grant the following reliefs:

"(a) to declare the plaintiff as the owner of the suit schedule property and consequently relief of mandatory injunction directing the defendants to deliver vacant possession of the suit schedule land admeasuring 3000 square yards, out of Acs.2.04 guntas in Sy.Nos.102/1 and 102/2, Nampally, Hyderabad in T.S., 27 and T.S. 28, Ward No.40, Block No.K of Nampally, Hyderabad;

(b) declaring the plaintiff as legal heir of deceased Anjaiah, so as to get mutation of the property, covered by the plaint schedule, in their names.;

(c) declaring that the entries made TSLR in respect of TS 27 and TS 28, Ward No.40, Block No.K of Nampally, Hyderabad are null and void and does not bind the plaintiff;

(d) For mandatory injunction directing the Deputy Director of Survey and Land Records, Hyderabad, to delete the names of existing possessors and insert the names of plaintiffs 1 to 4 in the relevant records, in respect of TS 27 and TS 28, Ward No.40, Block No.K of Nampally, Hyderabad;

(e) To award costs of the suit; and PNR,J CRP No.2176 of 2022

(f) To grant such other relief or reliefs as this Hon'ble court may deem fit and proper under the circumstances of the case."

2. In the said suit, petitioners herein, who are the

defendants, filed I.A.No.567 of 2019 under Order VII Rule 11

read with Section 151 of Code of Civil Procedure, 1908 to

reject the plaint. On due consideration of the respective

submissions, trial Court, by Order dated 03.08.2022,

dismissed the I.A.No.567 of 2019. Hence, this Revision.

3. Heard learned counsel Sri Shyam S Agarwal for the

petitioners and the learned counsel Sri Naga Srinivasa Rao

for the respondent.

4. On two grounds, petitioners sought for rejection of the

plaint. Firstly, the suit is hit by principles of res judicata and

does not disclose the cause of action, inasmuch as on the

same subject matter, O.S.No.8 of 1981 was filed. In O.S.No.8

of 1981, petitioners are the defendant nos.10 and 11, and the

respondent is plaintiff no.11. Suit was filed for ejection and

recovery of possession, mesne profits and costs in respect of

the land in Sy.Nos.102/1 and 102/2 including the buildings

under the occupation of Dunlop Company admeasuring 3000 PNR,J CRP No.2176 of 2022

square yards, out of Acs.2.14 guntas, situated at Nampally,

Hyderabad. By judgment dated 26.04.1994, suit was

dismissed and, therefore, the present suit is not

maintainable. The second contention urged was, whether the

suit was barred by limitation.

5. Extensive submissions were made before the trial Court

on both aspects. On due consideration of the provisions of

the Order VII Rule 11 of CPC, the precedent decisions on the

subject, trial Court also looked into the pleadings to assess

whether the suit is hit by the principles of res judicata and

that it does not disclose the cause of action and is hit by

limitation.

6. On the aspect of res judicata and cause of action, the

trial Court held as under:

"a) Therefore, if the averments in the plaint in O.S.No.76 of 2019 are read as a whole and juxtaposed with the pleadings in O.S.No.8 of 1981, it is discernible that the relief in the present suit and the suit in O.S.No.8 of 1981 are different, so also the issues that would be formulated for consideration in the present suit would be different, since the relief claimed in the said suit was for a different purpose and the present relief claimed in this suit in O.S.No.76 of 2019 is for declaration as extracted above. Therefore, it cannot be said that the issues which arose for PNR,J CRP No.2176 of 2022

determination in O.S.No.8 of 1981 are the same issues which would fall for adjudication in O.S.No.76 of 2019 and as such the findings of fact recorded by the learned VIII Assistant Judge, City Civil Court, Hyderabad in the judgment in O.S.No.8 of 1981 dated 26.04.1994 do not operate as res judicata in the present suit. In this view of the matter the decisions relied upon by the learned counsel for the petitioners/defendants are not applicable to the present factual matrix of the case. Therefore, the principles of res judicata are not applicable for the maintainability of the present suit. Further, it cannot also be said that the present suit does not disclose any cause of action."

7. On the second aspect, the trial Court "on a careful

perusal of the pleadings of the plaint read as a whole,

including the cause of action, it would depict several legal

and factual aspects raised therein are inextricably interlinked

which cannot be adjudicated at this stage so as to de-link

them to reject the plaint on the ground of having been barred

by limitation". Having held so, rejected the contentions on

the issue of limitation.

8. Having regard to these findings, trial Court held that

the rejection of the plaint at the threshold cannot be ordered

as those aspects have to be gone into in regular trial and on

plain reading of the plaint, it cannot be construed that the PNR,J CRP No.2176 of 2022

pleadings are manifestly vexatious and merit less in the

sense of not disclosing a clear right to sue.

9. Learned counsel for the petitioners sought to contend

that trial Court erred in rejecting the plea of principles of

res judicata and limitation to reject the plaint. He would

urge that as held by the Hon'ble Supreme Court in

T.Arivandandam vs. T.V.Satyapal and another1, the

present suit amounts to gross abuse of the process of Court

repeatedly. He would contend that the principles of res

judicata envisages that a judgment of a Court of concurrent

jurisdiction directly upon a point would create a bar as

regards a plea, between the same parties in some other

matter in another Court, where the said plea seeks to raise

afresh the very point that was determined in the earlier

judgment as held in Swamy Atmananda and others vs. Sri

Ramakrishna Tapovanam and others2.

10. He would further contend that the cause of action

arose way-back in the year 1994 and, therefore the suit is hit

by limitation on the face of it and, therefore, ought to have

(1977) 4 SCC 467

(2005) 10 SCC 51 PNR,J CRP No.2176 of 2022

been rejected on that ground. He would submit that in the

earlier judgment, plaintiffs were declared as not the owners of

the suit land. Therefore, the reliefs prayed in the present suit

are not maintainable.

11. These issues were also urged before the trial Court.

The trial Court has gone through the entire record, extracted

the relevant pleadings in the plaint, the paragraph dealing

with cause of action and the prayer. On thorough analysis of

plaint averments as they stand, trial Court did not agree with

the plea raised on the issue of principles of res judicata and

limitation to reject the plaint under Order VII Rule 11 of CPC.

12. On independent consideration of the matter, I do not

see any error in the view taken by the trial Court for this

Court to reverse the decision in exercise of revisional

jurisdiction. The Civil Revision Petition is accordingly

dismissed. Pending miscellaneous applications if any shall

stand closed.

___________________________ JUSTICE P.NAVEEN RAO Date: 17.02.2023 Kkm PNR,J CRP No.2176 of 2022

HONOURABLE SRI JUSTICE P.NAVEEN RAO

CIVIL REVISION PETITION NO.2176 OF 2022

Date: 17.02.2023 kkm