Gulzari vs Zile Singh

L.N. Mittal, J.—Defendant Gulzari has approached this Court by way of instant revision petition filed under Article 227 of the Constitution of India impugning order dated 14.1.2013 passed by the trial court thereby dismissing application filed by defendant-petitioner under Order 7 Rule 11 of the CPC (in short, "CPC") for rejection of plaint dated 05.4.2010 Annexure P/7 instituted by respondent-plaintiff Zile Singh against defendant-petitioner. Defendant inter alia alleged that previous suit filed by the plaintiff vide plaint dated 10.6.1999 Annexure P/4 was dismissed as withdrawn vide order dated 6.8.2002 Annexure P/5 and therefore, the instant second suit is barred.

I have heard counsel for the parties and perused the case file.

Counsel for the petitioner contended that the instant second suit is barred in view of dismissal of the earlier suit as withdrawn.

On the other hand, counsel for respondent-plaintiff contended that in the instant second suit, there are different grounds.

I have carefully considered the matter. Vide plaint Annexure P/4, the plaintiff challenged consent judgment and decree dated 5.3.1994 passed in favour of defendant-petitioner against one Dhapan and sought consequential relief. The said suit was dismissed as withdrawn vide order dated 6.8.2002 Annexure P/5. In the instant plaint Annexure P/7 also, the plaintiff has again challenged the same consent judgment and decree dated 5.3.1994 and has sought consequential relief. Consequently, the instant second suit is clearly barred by law i.e. Order 23 Rule 1(4) CPC. Consequently plaint Annexure P/7 is liable to rejection under Order 7 Rule 11 CPC. In these circumstances, impugned order passed by the trial court dismissing application filed by defendant for rejection of plaint under Order 7 Rule 11 CPC is patently illegal and suffers from jurisdictional error. The trial court did not advert to the provisions of Order 23 Rule 1(4) CPC by which the plaintiff is precluded from filing the instant second suit in view of dismissal of his previous suit as withdrawn.

Resultantly, the instant revision petition is allowed. Impugned order dated 14.1.2013 passed by the trial court is set aside. Application filed by the defendant-petitioner for rejection of plaint under Order 7 Rule 11 CPC is allowed and plaint Annexure P/7 instituted by respondent plaintiff against defendant-petitioner stands rejected. Civil miscellaneous application, if any pending, is disposed of as having been rendered infructuous.