Naushad Ahmed And Another vs Manoj Jaiswal And Another

The present challenge is directed against an order whereby the application of the defendants/petitioners in a suit pertaining to immovable property, under Order VII Rule 11 of the Code of Civil Procedure, was rejected.

Learned counsel for the petitioners argues that previously the petitioners had obtained a decree as to their title in respect of the suit property along with consequential reliefs, against the alleged vendor of the plaintiffs/opposite parties. However, such fact was suppressed in the plaint of the present suit. As such, it is submitted, the suit is vexatious and ought to be nipped in the bud. Learned counsel submits that by such gross suppression of facts, which might otherwise have led the court to reject the plaint on the ground of res judicata, the plaintiffs/opposite parties have subjected themselves to the rigour of Order VII Rule 11 of the Code of Civil Procedure. Apart from res judicata, cause of action has also not been properly disclosed in the present suit.

In this context, learned counsel for the petitioners cites a judgment reported at 2014 WBLR (Cal) 874 (Hari Mohan Mallik Vs. Madan Mohan Mallik and others). In the said judgment, a coordinate Bench of this Court held inter alia that the plaint therein ought to be rejected on the ground of res judicata for suppression of certain relevant facts and it was specifically observed that in the facts and circumstances of such case, the plaint ought to be rejected.

However, since every judgment is a precedent in the context in which it was delivered, we have to look into the facts of the present case to decide whether the ratio laid down in the said judgment would be applicable herein; more so, since the learned single Judge held that the said judgment was delivered in the facts and circumstances of the case.

A bare perusal and meaningful reading of the plaint in the present suit would reveal that there is nothing in the plaint to indicate that the present suit is barred by res judicata. On the other hand, sufficient facts have been mentioned in the form of averments in the plaint to give rise to a cause of action for the suit. It is trite that, for the rejection of plaint, it cannot be argued that the plaintiffs do not have a cause of action but it has to be seen whether the plaint discloses a cause of action, whatever might be the merits of such plaint allegations. Since in the present case the plaint discloses sufficient cause of action and the bar of res judicata is not at all evident from the language of the plaint itself, the trial court acted well within its jurisdiction in rejecting the application under Order VII Rule 11 of the Code of Civil Procedure.

However, it is made clear that the rejection of the said application and/or any of the observations made in this order and/or the order impugned herein will not stand in the way of the petitioners agitating all points taken herein at the time of final hearing of the suit and the trial court will frame an issue on the maintainability of the suit and the questions of res judicata and other like issues, if raised by the defendants in their written statement.

C.O. 1146 of 2018 is, thus, disposed of without interfering with the impugned order, in the light of the observations made above.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.