G. Raju vs J. Premasekaran and Others

K.K. Sasidharan, J.

This Civil Revision Petition is directed against the order dated 09 December, 2014, in I.A. No. 189 of 2009 in O.S. No. 5 of 2009, whereby and whereunder, the learned District Munsif, Palani, was pleased to dismiss the application filed by the petitioner under Order 7 Rule 11 of Civil Procedure Code.

The respondents earlier filed a suit in O.S. No. 84 of 2002 on the file of the learned District Munsif, Palani, against the petitioner, praying for a decree of recovery of possession. The suit was contested by the petitioner. The suit was, ultimately, dismissed, by judgment and decree dated 25 January, 2008. The first appeal preferred against the decree in O.S. No. 84 of 2002 is now pending before the Sub Court, Palani, in A.S. No. 53 of 2008.

Subsequently, the respondents filed a fresh suit in O.S. No. 5 of 2009 before the learned District Munsif, Palani, praying for a decree of permanent injunction.

The petitioner filed an application in I.A. No. 189 of 2009, invoking the provisions under Order 7 Rule 11 of Civil Procedure Code. The petitioner contended that the Trial Court has already given a finding against the respondents with respect to the very same property and as such, a fresh suit, on the basis of the very same cause of action, is not maintainable.

The learned Trial Judge was of the view that the issue raised by the petitioner could be decided only in the civil suit and as such, the plaint cannot be rejected. The said order dated 09 December, 2014, is under challenge in this Civil Revision Petition.

The learned counsel for the petitioner contended that there is a subsisting decree against the respondents in O.S. No. 84 of 2002. The property is one and the same. It is, therefore, not permissible to file a second suit with respect to the very same property. According to the learned counsel, the Trial Court erred in rejecting the application filed under Order 7 Rule 11 of Civil Procedure Code.

The learned counsel for the respondents, by placing reliance on the schedule of property, as contained in the decree in O.S. No. 84 of 2002 and the schedule to the plaint in O.S. No. 5 of 2009, contended that the subject property in the subsequent suit has nothing to do with the property, which was the subject matter of the earlier civil suit. According to the learned counsel, the question of res judicata can be decided only after evidence is let in. The learned counsel justified the order passed by the Trial Court.

The respondents filed a suit in O.S. No. 84 of 2002. It was a suit for recovery of possession. The Trial Court arrived at a finding that the respondents have not proved their title to the property. The first appeal is now pending before the Sub Court, Palani, in A.S. No. 53 of 2008.

The respondents, in the subsequent suit in O.S. No. 5 of 2009, have clearly stated that an attempt was made by the petitioner to encroach upon the property belonging to them and it was not the subject matter of earlier litigation. The learned Trial Judge considered the issue raised by the petitioner and arrived at a finding that it is not possible to decide the question raised by the petitioner with respect to the identity of the property and the same could be decided only in the civil suit.

The question of rejection of plaint under Order 7 Rule 11 of Civil Procedure Code would arise only in case the defendant is in a position to demonstrate that the plaint taken as a whole would not give a cause of action and as such, it should be axed at the threshold. In case the evidence is required to be taken even to consider the application under Order 7 Rule 11 of Civil Procedure Code, there is no question of rejecting the plaint. The issue regarding res judicata is a mixed question of law and fact. The learned Trial Judge was, therefore, perfectly correct in dismissing the Interlocutory Application.

The learned counsel for the respondents submitted that the petitioner has already moved an application under Section 10 of Code of Civil Procedure. Since the said fact is not disclosed by the petitioner in the present Civil Revision Petition, I am not inclined to make any observation.

In the result, the Civil Revision Petition is dismissed. No costs. Consequently, the connected miscellaneous petition is also dismissed.