Madhya Pradesh High Court
Pathaniya vs Jagdish on 24 April, 2017
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
-: 1:- C.R.No.296 of 2015
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon'ble Shri Justice Rajeev Kumar Dubey )
Civil Revision No.296 of 2015
Pathaniya S/o Shri Versingh Barela
VERSUS
Jagdish S/o Vallabhdas Mahajan and others
*****
Shri Pankaj Kumar Sohani, learned counsel for the
applicant.
Shri Kuldeep Pathak, learned counsel for the non-
applicants No.1 to 8.
Shri Himanshu Joshi, learned Panel Lawyer for the non
applicant No.9/State.
*****
O R D E R
( Passed on this day of April, 2017 ) This Civil Revision has been filed under Section 115 of Code of Civil Procedure against the order dated 28.09.2015 passed by the 4th Civil Judge Class-II, Khargone, West Nimar in Civil Suit No.32-A/2015, whereby he rejected defendant No.4/applicant's application filed under Order 7 Rule 11 of the CPC.
[2] Brief facts of the case which are relevant for the disposal of this Civil Revision are that non-applicants No.1 to 5/plaintiffs filed a Civil Suit No.32-A/2015 before the 4th Civil Judge Class-II, Khargone, West Nimar for being -: 2:- C.R.No.296 of 2015 declared joint owners of the suit land along with non- applicant No.6 and 7/defendant No.1 & 2 and getting possession of suit land and also getting Rs.50,000/-as compensation from the applicant/defendant No.4 averring that suit land was earlier owned by their father Vallabhdas Sitaram Mahajan. He bought that land from Gopal S/o Harji by registered sale deed on 10.04.1989. After death of Vallabhdas non-applicants No.1 to 7, who are the heir of Vallabhdas, are the owners of suit land. Earlier non- applicants/defendants No.1 & 2 filed a Civil Suit against applicant/defendant No.4 for taking possession of suit land which was dismissed by the court. Applicant/defendant No.4 wrongly occupied the suit land while he has no right over it.
During trial of the suit applicant/defendant No.4 filed an application under Order 7 Rule 11 of CPC averring that earlier defendants No.1 & 2 had filed a Civil Suit No.92A/12 regarding suit land against the applicant which was rejected by the 3rd Civil Judge, Class-2, Khargone by judgment dated 22.12.2012 against which defendants No.5 & 6 filed Civil Appeal No.4A/13 which was disposed of by the 3rd Additional District Judge, Khargone by the judgment dated 09.12.2014 and he affirmed the judgment of Civil -: 3:- C.R.No.296 of 2015 Judge, Class-II, Khargone. So suit of the plaintiff is barred by principles of resjudicata. Applicant also filed Civil Suit No.188A/04 and 45A/ 05 regarding suit land in the Court of Civil Judge, Class-2, Khargone The suit is also time barred. Non-applicant did not pay proper court fees. So suit be rejected.
Non-applicants No.1 to 4 opposed the prayer. Learned trial court by order dated 28.09.2015 rejected applicant's application observing that the applicant was not a party to earlier Civil Suit No.92A/12 filed by the Non applicants No.5 & 6, so the judgment of that suit is not binding on non applicant no.1 to 5. It also prima facie appears that applicant properly valued his suit. Being aggrieved from that order applicant filed this Civil Revision.
[3] Learned counsel for the applicant submitted that non-applicant himself stated in Para 7 of his plaint that non- applicants No.6 & 7 were also party to civil Suit No.92A/12 filed against applicant for being declared owner of suit land which was rejected by the court. So the judgment of that case is binding on non applicants. Learned trial court without appreciating the fact wrongly rejected the application.
[4] Learned counsel for the non applicant No.1 to 8 -: 4:- C.R.No.296 of 2015 opposed the prayer and submitted that non applicant no. 1 to 5 was not a party in the earlier Civil Suit No.92A/12 .so the judgment passed by the court in that suit is not binding on them. Therefore, learned trial court did not commit any mistake in rejecting applicant's prayer.
[5] This court has gone through the record and arguments put forth by both the parties. provisions of Section 11 of CPC reads as thus :-
11. Res judicata.- No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit' between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
It is admitted that non applicant No.1 to 5 are not the party in suit No.92A/12, so the judgment of that suit is not binding on them. Likewise evidence is required to decide the issue whether present suit is time barred. So, in the considered opinion of this court learned trial court did not commit any mistake in rejecting the application filled by the applicant under order 7 rule 11 of C.P.C.
Therefore, revision is dismissed with the note -: 5:- C.R.No.296 of 2015 that applicants are free to take all the aforesaid objection in the written statement which will be decided by the the trial court after recording of evidence according to law, on merits without being influenced by the order passed herein.
[RAJEEV KUMAR DUBEY] JUDGE ns