Chattisgarh High Court
Smt. Tara Bai vs Vitthal Rao Ithova Rao Gaydhane 10 ... on 17 June, 2019
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CR No. 47 of 2019
1.Smt. Tara Bai Wd/o Late Umashankar Gaydhane Aged About 70 Years R/o Lohar Para, Ward No.28, Rajnandgaon, Tahsil And District Rajnandgaon Chhattisgarh.
2. Vasudev Gaydhane S/o Late Umashankar Gaydhane Aged About 50 Years R/o Lohar Para, Ward No.28, Rajnandgaon, Tahsil And District Rajnandgaon Chhattisgarh.
3. Namdev Gaydhane S/o Late Umashankar Gaydhane Aged About 48 Years R/o Lohar Para, Ward No.28, Rajnandgaon, Tahsil And District Rajnandgaon Chhattisgarh.
4. Khemchand Gaydhane S/o Late Umashankar Gaydhane Aged About 46 Years R/o Lohar Para, Ward No.28, Rajnandgaon, Tahsil And District Rajnandgaon Chhattisgarh.
5. Santosh Gaydhane S/o Late Umashankar Gaydhane Aged About 42 Years R/o Lohar Para, Ward No.28, Rajnandgaon, Tahsil And District Rajnandgaon Chhattisgarh.
6. Chandrabhushan Gaydhane S/o Late Umashankar Gaydhane Aged About 39 Years R/o Lohar Para, Ward No.28, Rajnandgaon, Tahsil And District Rajnandgaon Chhattisgarh.
7. Smt. Durga Karemore D/o Late Umashankar Gaydhane Aged About 53 Years W/o Yashwant Rao Karemore, R/o Jaripatka, Nagpur (Maharashtra).
8. Smt. Bharti D/o Late Umashankar Gaydhane Aged About 43 Years W/o Rajendra Bhilave, R/o Lakhenagar, raipur, Tahsil And District Raipur Chhattisgarh.
9. Smt. Prabha D/o Late Umashankar Gaydhane Aged About 42 Years R/o Lohar Para, Ward No.28, Rajnandgaon, Tahsil And District Rajnandgaon Chhattisgarh.
----Applicants/Defendants No. 1 to 9
Versus
1. Vitthal Rao Ithova Rao Gaydhane S/o Maroti Rao Gaydhane Aged About 78 Years R/o Lohar Para, Ward No.28, Rajnandgaon, Tahsil And District 2 Rajnandgaon Chhattisgarh.
2. State Of Chhattisgarh Through The Collector, Rajnandgaon Distt Rajnandgaon, Chhattisgarh. ---- Defendant No. 10
--- Non-applicants For Applicants : Mr. Pushpendra Kumar Patel, Advocate For State : Mr. Ghanshyam Patel, Govt. Advocate Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 17.06.2019
1. Heard on admission & on I.A. No. 01, application for grant of stay.
2. By the impugned order dated 26/04/2019 passed in Civil Suit No. 18-A/2018, learned trial Court has rejected the application under| Order 7 rule 11 of the CPC filed by the applicants/defendants No. 1 to 9 against which this civil revision has been preferred by them.
3. Learned counsel for the applicants/defendants No. 1 to 9 submits that the trial Court is absolutely unjustified in rejecting the application under Order 7 rule 11 of the CPC, as the civil suit is apparently barred by the principles of res judicata as the issue in question has already been decided in civil suit No. 25-A/2001 on 15/02/2003. Therefore, the impugned order is liable to be set aside.
4. I have heard learned counsel for the parties and went through the records with utmost circumspection.
5. The trial Court has clearly recorded a finding that the plea of res judicata as raised by the application under Order 7 rule 11 of CPC is a mixed question of law and fact which cannot be considered at this stage and, it has to be decided after framing the issue and that 3 issue has to be decided along with other issues.
6. The Supreme Court, in the matter of Vaish Aggarwal Panchayat Vs. Inder Kumar & Ors.1 has clearly held that plea of res judicata involves mixed question of law and fact and requires not only examination of plaint but also other evidence, it cannot as such be a ground to reject the plaint.
7. In view of the aforesaid analysis and the finding recorded by learned trial Court in rejecting the application under Order 7 rule 11 of CPC filed by the applicants, I do not find any jurisdictional error in the impugned order.
8. Accordingly, this civil revision deserves to be and is accordingly dismissed. However, if the plea is raised in the written statement, the trial Court would do well to frame the issue and accordingly decide the issue.
9. A copy of this order be sent to the concerned trial Court by e- mail/fax.
Sd/-
(Sanjay K. Agrawal) Judge Harneet 1 AIR 2015 SCC 3357