Karnataka High Court
Vageshwari Education Society vs Smt. Jayashri W/O Gangaram Manchakal on 16 January, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
-1-
CRP No.100076 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CIVIL REVISION PETITION NO.100076 OF 2022
BETWEEN:
VAGESHWARI EDUCATION SOCIETY,
THROUGH ITS CHAIRMAN JAMKHANDI
R/BY SANDEEP S/O BHIMAPPA BELAGALI,
AGE: 49 YEARS, OCC: CHAIRMAN,
R/O. PAGAGALLI, TQ: JAMAKHANDI,
DIST: BAGALKOT-587101.
...PETITIONER
(BY SRI. ANIL KALE, ADV.)
AND:
1. SINCE DECEASED BY HIS LRS
SHRI SHANKAR S/O. KALLAPPA BIDARI,
SMT. JAYASHRI
W/O GANGARAM MANCHAKAL
AGE: 43 YEARS, OCC: HOUSEHOLD WROK,
R/O. SAIRAM SOCIETY 2B/224,
HEMA INDUSTRIES, SARVODAYA NAGAR,
JOGESHWARI EAST, MUMBAI-400060
Digitally signed
by ROHAN
HADIMANI T
MAHARASHTRA.
ROHAN Location: HIGH
COURT OF
HADIMANI KARNATAKA
T DHARWAD
Date:
2. SMT. LALITA
2023.02.17
11:34:57 +0530 W/O PARASHURAM KALABURGI,
AGE. 41 YEARS, OCC: HOUSEHOLD WORK,
R/O MACHAGAR GALLI, WARD NO.1,
HANNUR, TQ. JAMAKHANDI,
DIST. BAGALKOT-587101.
3. SMT.SAROJA W/O GANESH GUNADAL
AGE: 39 YEARS, OCC: HOUSEHOLD WORK,
-2-
CRP No.100076 of 2022
R/O SHASHTRI NAGAR, PARIWAR GARDEN,
KANJUR MARGA, EAST, MUMBAI-400060,
MAHARASHTRA.
4. SUNIL S/O SHANKAR BIDARI
AGE: 37 YEARS, OCC: SERVICE
R/O SAIRAM SOCIETY 2B/224,
HEMA INDUSTRIES, SARVODAYA NAGAR,
JOGESHWARI EAST, MUMBAI-400060,
MAHARASHTRA.
5. ANIL S/O SHANKAR BIDARI,
AGE: 35 YEARS, OCC: SERVICE,
R/O: SAIRAM SOCIETY 2B/224
HEMA INDUSTRIES, SARVODAYA NAGAR
JOGESHWARI EAST, MUMBAI-400060,
MAHARASHTRA.
...RESPONDENTS
(NOTICE TO RESPONDENT NO.1 : SERVED,
BY SRI GIRISH A.YADWAD, ADV.
SMT.DIVYA J.DESHPANDE, ADV.
SRI ASHOK C.ANGADI ADV. FOR R2, 4 & 5)
THIS CIVIL REVISIO PETITION IS FILED UNDER SECTION 115
OF THE CODE OF CIVIL PROCEDURE, 1908 PRAYING TO SET ASIDE
TE ORDER DATED 22.10.2021 PASSED BY THE PRINCIPAL CIVIL
JUDGE AND JMFC., JAMKHANDI ON I.A.NO.16 IN O.S.NO.123/2013
PRODUCED AT ANNEXURE-E, CONSEQUENTLYALLOW I.A.NO.16
FILED BY PETITIONER UNDER ORDER VII RULE 11 READ WITH
SECTION 151 OF CPC, IN O.S.NO.123/2013, ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE & JMFC JAMKHANDI.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. The present petition is filed by the petitioner/ defendant challenging the order dated 22.10.2021 passed on I.A.No.16 filed under Order VII Rule 11 of the Code of -3- CRP No.100076 of 2022 Civil Procedure, 1908 in O.S.No.123/2013 on the file of Principal Civil Judge & JMFC, Jamkhandi.
2. The above suit in O.S.No.123/2013 has been filed by the respondents/plaintiffs seeking the following relief:
a) It be declare that, the judgment and decree obtained by the defendant in O.S.No.68/2001 on 24.02.2006 on the file of Civil Judge (Jr.Dn.), Jamakhandi in respect of CTS No.1632 of Jamakhandi is void, illegal, unenforceable and inexecutable and without jurisdiction and are not binding on the plaintiff and for cost.
b) Cost of the suit be awarded to the plaintiff from the defendant.
c) Such other relief as deemed fir and proper be granted.
3. Admitted facts of the case are that the petitioner herein had earlier filed a suit in O.S.No.68/2001 against the respondents/plaintiffs. That though the suit summons were served on the respondents/plaintiffs they remained absent and the judgment was passed ex parte. -4- CRP No.100076 of 2022
4. Aggrieved by the same, respondents/plaintiffs filed an application under Order IX Rule 13 of CPC seeking to set aside said ex parte judgment on the ground that the summons were not served on them in the manner known to law. The said application came to be rejected by order dated 15.03.2013. Thereafter there has been no challenge to the said order of rejection and the respondents/ plaintiffs have also not filed any appeal under Section 96 of CPC against the said ex parte order, which was the other remedy available. On the other hand, the respondents/plaintiffs have filed the present suit in O.S.No.123/2013 seeking the aforesaid reliefs. The petitioner/defendant herein therefore, filed an application under Order VII Rule 11 of CPC questioning the very maintainability of the suit and sought for rejection of Plaint. The said application was rejected by the Trial Court by impugned order dated 22.10.2021. Aggrieved by the same, the petitioner/defendant is before this Court. -5- CRP No.100076 of 2022
5. Learned counsel for the petitioner/defendant reiterating the grounds urged in the petition submits that, since the suit is barred by law, the Plaint was to be rejected. He further refers to section 16 of CPC which bars subsequent suit on the same cause of action. Therefore, he submits that, the Trial Court erred in not allowing the application.
6. Learned counsel for the petitioner also relied upon the judgment of Apex Court in the case of CANARA BANK Vs. P. SELATHAL AND OTHERS disposed of on 28.02.2020.
7. Sri Girish Yadwad, learned counsel for the respondents/plaintiffs on the other hand submits that, the summons were not served on the respondents/plaintiffs in the earlier suit in O.S.No.68/2001 in the manner known to law. He submits that, in that view of the matter the petitioner though was unsuccessful in having the ex parte -6- CRP No.100076 of 2022 decree recalled, under Order IX Rule 13 of CPC, was however entitled to file the preset suit.
8. He further submits that, in the impugned order the Trial Court has already framed the issues with regard to the question of resjudicata as well as the question of limitation which can be gone into as preliminary issues if the suit is otherwise not maintainable and rejection of plaint under Order VII Rule 11 of CPC is not an answer.
9. Learned counsel for the respondents on the other hand drawing the attention of this Court to the Plaint averments at paragraph No.3 of the plaint, which reads as under:
"3) Though no summons was properly served on the defendant in the said suit i.e. on the present plaintiff, he was set ex parte in the said suit and one Shivashankarayya Nasimath was examined as PW1 and on the basis of his oral evidence and Ex.P.1 to 3 the property extracts and Ex.P4 transfer certificate and Ex.P.5 to 14 the Municipal tax paid receipts the Hon'ble Civil Judge (Jr.Dn) Jamakhani passed a judgment on 24.02.2006 declaring that plaintiff is the owner of the suit property and the defendant is restrained from alienating the suit property and further he is restrained from causing interference to -7- CRP No.100076 of 2022 the peaceful possession and enjoyment of the suit property by the plaintiff in the said suit."
submits that apart from fraud played during service of summons, the material evidence was suppressed in the earlier proceedings and the same amounts playing fraud on Court thus giving rise to fresh cause of action. He also submits the earlier suit itself was not maintainable and the Court did not have jurisdiction as it was to be filed before the District Court. On these grounds, he submits that the subsequent suit was maintainable. He further submits that mere reading of the plaint on the face of it, does not discloses the same is barred under any law requiring the plaint to be rejected under Order VII Rule 11 of CPC be maintainable. He further submits that the petitioner herein who has been participating in the suit since 2014 by filing written statement has not raised these issues and therefore he cannot be permitted to raise the issue at the belated stage. He relies upon the judgment of the Apex Court in the case of SOUMITRA KUMAR SEN VS. SHYAMAL -8- CRP No.100076 of 2022 KUMAR SEN AND OTHERS reported in 2018 (5) SCC
644.
10. Heard learned counsel appearing for the parties and perused the records.
11. It is not in dispute that the earlier suit which was filed by the petitioner herein against the respondents was decreed ex parte. The respondents herein had challenged the said ex parte decree and sought for recalling of the same on the premise that the summons were not served on him in the manner known to law. However, the said application was rejected. The respondents herein thereafter filed the present suit.
12. As already noted hereinabove, the present suit is filed seeking to set aside the judgment and decree passed in O.S.No.68/2001 by the plaintiffs over the defendants in O.S.No.123/2013. The counsel for the respondents/plaintiffs relied upon paragraph 3 of the -9- CRP No.100076 of 2022 plaint to justify the ground of cause of action and maintainability of the suit.
13. The petitioner has filed an application under Order VII Rule 11 of CPC seeking rejection of the said Plaint. The trial Court has rejected the said application. It is settled position of law for the purpose of determination of an application under Order VII Rule 11 of CPC, the averments in the plaint alone which have to be looked into and not the written statement or the defence set up by the defendant in the matter.
14. In the instant case, though the application filed by the petitioner is not specific as to which of the grounds on which the petitioner has sought rejection of the Plaint, at paragraph Nos.9, 10, 11, 12 and 13 of the affidavit accompanying the said application the petitioner has deposed as under :
"9. Further I say that, seeking relief against the judgment and decree of this Hon'ble Court passed in O.S.No.62/2001 dated 24.02.2006 itself is untenable. No relief can be granted in this suit. Plaintiff ought to have sought remedy by way of
- 10 -CRP No.100076 of 2022
appeal. The plaintiff had committed contempt of Court by repeatedly seeking relief against the judgment and decree of this Hon'ble Court in O.S.No.62/2001.
10. I say that, plaintiff has moved this Hon'ble Court in Misc.No.1/2010 seeking setting aside the said judgment and decree passed in O.S.No.62/2001. This miscellaneous application was also rejected. Plaintiff did not choose to challenge the judgment of this Hon'ble Court.
11. I say that, the plaintiff has filed this Suit as a third round of litigation challenging the very judgment and decree and order of this Hon'ble Court. Thus, plaintiff is liable for be contempt proceedings. He cannot agitate before this Hon'ble Court, repeatedly on the same cause of action.
12. I say that the relief sought by the plaintiff cannot be entertained in a separate suit. He shall have to approach appellate Court, if at all he intends to challenge the judgment and decree and order of this Hon'ble Court.
13. Hence, I respectfully say that, the plaintiff has no cause of action to proceed. Further he cannot seek relief in the present suit. The same is barred by law. He cannot re-agitate the matter again and again in the same Court."
15. It is relevant to note that a party who has suffered an ex parte decree has been provided with three remedies under CPC; one is under Order IX Rule 13 of CPC and the second is to file an appeal under Section 96 of CPC and the third one is a review under Order XLVII Rule
- 11 -
CRP No.100076 of 2022 1 of CPC. Order IX Rule 13 of CPC in turn, provides two grounds for recalling of the ex parte decree/order namely,
(i) Non service of notice (ii) That the defendant was prevented by sufficient cause from prosecuting the suit.
16. In the instant case, the respondents herein has already exhausted remedy under Order IX Rule 13 of CPC in which both the grounds have been declined and the application filed by the defendant has been rejected. The said order has not been challenged and the same has attained finality. Admittedly respondent has not filed any appeal against the said ex parte decree though provided under Section 96 of the CPC or a review petition under Order XLVII Rule 1 of CPC. Therefore, the question would arise whether the respondents can file another suit seeking declaration that the decree passed in above suit is not binding or null and void and if they can, on what grounds?
- 12 -
CRP No.100076 of 2022
17. It is relevant at this juncture to refer to the judgment of the division bench of the Calcutta High Court in the case of ATUL CHANDRA SARKAR Vs. EAST BENGAL COMMERCIAL BANK LTD., AND ANOTHER reported in AIR 1960 CALCUTTA 309 (V 47 C 80) dealing with a suit for setting aside the ex parte decree and its maintainability wherein at paragraphs Nos.12, 13 and 14, it has been held as under:
"(12) The above clearly shows that this court has consistently held that mere non-service of summons is not enough to found a cause of action for setting aside a decree. Where mere non-service is the complaint, the remedies available are (i) an application under O. IX R. 13, (ii) an appeal from the ex parte decree and (iii) an application for review under Ö. 47 R 1 of the Code of Civil Procedure.
(13) In this case the learned trial Judge held that no particulars having been given, the allegation of fraud could not be taken notice of. It has always been held that general allegations of fraud, however strong the words in which they are stated, are insufficient even to amount to an averment of fraud of which any court ought to take notice, Wallingford v. Mutual Society, (1880) 5 AC 685 at p. 697. In my opinion the expression "suppression of summons" by itself does not amount to a sufficient averment of fraud. "To suppress" means "to keep secret", "not to reveal", "to withhold". Suppression of summons, therefore, means keeping the summons secret or not little
- 13 -CRP No.100076 of 2022
more than not serving it. If in this case the revealing it or withholding it. By itself it means learned Judge had allowed the issue to be raised in the general form "was the writ of summons suppressed?" the defendant would have no idea as to the particular case of fraud the plaintiff was going to make. Something more would be necessary; there would have to be an averment that there was collusion between the process server and the identifier or that there was a deliberate misleading of the process server or other similar allegations.
(14) In my opinion the learned Judge was right in holding that there was no sufficient averment of fraud and if the case was only one of non-service of summons, as the learned Judge held it to be, the suit was not maintainable. It would certainly have been better if he had indicated that the plaint did not disclose a cause of action and unless the plaint was amended by supplying proper particulars he would have to reject the same under O. 7 R. 11 of the Code of Civil Procedure. The learned Judge does not seem to have adopted this course. In fairness to him it must be said that there appears no request on the part of the plaintiff's lawyers for an opportunity to cure the lacuna in the plaint. But even if the learned Judge had returned the plaint, another suit could not have been filed because 7 years had elapsed in between the institution of the suit in 1949 and the trial of it in 1956."
18. Thus, in the light of the aforesaid principles of law a subsequent suit would be maintainable only if the respondents are able to show that a fraud was perpetrated
- 14 -
CRP No.100076 of 2022 on the respondents in active collusion with the plaintiffs in serving the summons with deliberate intention of keeping the defendant away from participating in the proceedings. It is only on the said ground, a subsequent suit would be maintainable otherwise the Court may have to take recourse under Order VII Rule 11 of CPC.
19. Though the learned counsel for the respondents has relied upon the judgment of the Apex Court in the case of SOUMITRA KUMAR SEN Vs. SHYAMAL KUMAR SEN AND OTHERS, the facts of the said case are different from the one at hand. There were three different suits filed for different independent reliefs as narrated at paragraph Nos.2 to 4 of the said judgment. In the third suit which was in respect of the title an application invoking Clause
(d) of order VII Rule 11 of CPC, was filed which came to be rejected. In the light of different fact situation of the said three suits the Apex Court at paragraph Nos.11 and 12 of the said judgment has held as under:
- 15 -CRP No.100076 of 2022
"11. We may usefully refer to the judgment of this Court in Kamala and Ors. v. K.T. Eshwara Sa and Ors. MANU/SC/7542/2008 (2008) 12 SCC 661. That was a case wherein the trial judge allowed an application for rejection of the plaint in a suit for partition of family properties and the same was affirmed by the High Court as well. An appeal against the order of the High Court was filed before this Court. While examining the scope, ambit and exercise of power Under Order VII Rule 11 of Code of Civil Procedure, this Court held as under:
Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking Clause (d) of Order 7 Rule 11 of the Code. are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.
It was further observed:
For the purpose of Invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All Issues shall not be the subject-matter of an order under the said provision. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only
- 16 -CRP No.100076 of 2022
examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary Issue or at the final hearing, but, the said question cannot be determined at that stage. It is one thing to say that the averments made in the plaint on their face disclose no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.
12. Before we part with, it is necessary to make certain comments. The Appellant has mentioned about the earlier two cases which were filed by Respondent No. 1 and wherein he failed. These are judicial records. The Appellant can easily demonstrate the correctness of his averments by filing certified copies of the pleadings in the earlier two suits as well as copies of the judgments passed by the courts in those proceedings. In fact, copies of the orders passed in judgment and decree dated March 31, 1997 passed by the Civil Judge (Junior Division), copy of the judgment dated March 31, 1998 passed by the Civil Judge (Senior Division) upholding the decree passed by the Civil Judge (Junior Division) as well as copy of the judgment and decree dated July 31, 2014 passed by Civil Judge, Junior Division in Suit No. 268 of 2008 are placed on record by the Appellant. While deciding the first suit, the trial court gave a categorical finding that as per MoU signed between the parties, Respondent No. 1 had accepted a sum of Rs. 2,00,000/- and, therefore, the said suit was barred by principles of estoppel, waiver and acquiescence. In a case like this, though recourse to Order VII Rule 11 Code of Civil Procedure by the Appellant was not appropriate, at the same time, the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decide the same in the first instance. In this manner the Appellant, or for that matter the parties, can be absolved of unnecessary agony of prolonged proceedings, in case
- 17 -CRP No.100076 of 2022
the Appellant is ultimately found to be correct in his submissions."
20. There cannot be any dispute with regard to principle of law laid down in the aforesaid judgment but the facts of the case involved therein are completely different and distinct from the one which are involved in the present case.
21. Learned counsel for the petitioner relied upon the judgment of the Apex Court in the case of CANARA BANK Vs. P. SELATHAL AND OTHERS wherein, in the said suit, the recovery certificate issued by the DRT was challenged in a suit. An application under Order VII Rule 11(d) of CPC came to be filed. The Apex Court dealing with the said issue at paragraph Nos.10, 11 and 12 has held as under:
"10. Having considered the pleadings and the averments in the suits, more particularly the allegations of fraud, we find that the allegations of fraud are with respect to the partnership deed and there are no allegations at all with respect to mortgage created by the Guarantor - Shri Kallikutty and that too with respect to the deed of guarantee executed by the Guarantor Much reliance is placed
- 18 -CRP No.100076 of 2022
upon the judgment and order passed by the learned Magistrate holding the partners of the firm guilty. However, it is required to be noted that even in the said judgment passed by the learned Magistrate there is no reference to the deed of guarantee and/or the mortgage created by the Guarantor. Even the bank is not a party to the said proceedings. It is reported that against the judgment and order passed by the learned Magistrate, further appeal is pending. Be that as it may, considering the pleadings/ averments in the suits and the allegations of fraud, we are of the opinion that the allegations of fraud are illusory and only with a view to get out of the judgment and decree passed by the DRT. We are of the opinion that therefore the suits are vexatious and are filed with a mala fide intention to get out of the judgment and decree passed by the DRT. As observed hereinabove, the plaintiffs are claiming right, title on the basis of the sale deeds dated 30.01.1996 and 10.03.1997 respectively executed by Shri Kallikutty as power of attorney holder of the original owner. However, according to the averments in the plaints, they have purchased the suit property from their vendor which is factually incorrect. On a bare reading of the sale deeds, it appears that the sale deeds are executed by Shri Kallikutty as power of attorney holder of the original vendor. As observed hereinabove, even in the year 2008, when the said Kallikutty filed interlocutory application before the DRT to quash and set aside the ex parte judgment and decree passed by the DRT, he did not disclose that he has already sold the property in favour of the original plaintiffs. As observed hereinabove, even the sale consideration is alleged to have been paid in cash. Before the execution of the sale deeds dated 30.01.1996 and 10.03.1997, the lands were already put as a security by way of mortgage with the appellant bank by Shri Kallikutty. Thus, considering the overall facts and circumstances of the case, the suits filed by the original plaintiffs are vexatious, frivolous and nothing but an abuse of
- 19 -CRP No.100076 of 2022
process of law and court. Therefore, considering the law laid down by this Court in the aforesaid decisions, more particularly in the case of T. Arivandandam (supra), the suits being vexatious and frivolous, the plaints are required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC. As pointed out by Krishna Iyer. J. in T. Arivandandam (supra), the ritual of repeating a word or creation of an illusion in the plaint can certainly be unravelled and exposed by the court while dealing with an application under Order 7 Rule 11(a). As observed by this Court, such proceedings are required to be nipped in the bud. Even otherwise as observed hereinabove, without exhausting the remedy of appeal provided under the RDDBFI Act, the suits with the basic relief of challenging the decree passed by the DRT were liable to be dismissed, as observed and held by this Court in the case of O.C. Krishnan and others (supra),
11. At this stage, it is also required to be noted that the suits have been filed after a period of 15 years from the date of mortgage and after a period of 7 years from the date of passing of the decree by the DRT. In the plaints, it is averred that the plaintiffs came to know about the mortgage and the judgment and decree passed by the DRT only six months back. However, the said averments can be said to be too vague. Nothing has been averred when and how the plaintiffs came to know about the judgment and decree passed by the DRT and the mortgage of the property. Only with a view to get out of the law of limitation and only with a view to bring the suits within the period of limitation, such vague averments are made. On such vague averments, plaintiffs cannot get out of the law of limitation. There must be specific pleadings and averments in the plaints on limitation. Thus, on this ground also, the plaints were liable to be rejected. As observed hereinabove, the plaints are vexatious, frivolous, meritless and nothing but an abuse of
- 20 -CRP No.100076 of 2022
process of law and court. Therefore, this is a fit case to exercise the powers under Order 7 Rule 11 (d) of the CPC. Both the courts below have materially erred in not rejecting the plaints in exercise of powers under Order 7 Rule 11(d) of the CPC. Both the courts below have materially erred in not exercising the jurisdiction vested in them.
12. In view of the above and for the reasons stated above, both these appeals succeed. The impugned common judgment and order passed by the High Court in dismissing the revision applications and the orders passed by the learned trial Court rejecting the applications preferred by the appellant) bank to reject the respective plaints in exercise of powers under Order 7 Rule 11(d) of the CPC are hereby quashed and set aside. Consequently, the plaints filed by the original plaintiffs being O.S. No. 1269/2010 and O.S. No. 233/2011 pending in the Court of Additional Subordinate Court, Coimbatore are rejected. The instant appeals are allowed accordingly. No costs."
22. In the light of the aforesaid legal position, it may have to be seen whether the impugned order is sustainable? The Trial Court while dealing with the aforesaid application has primarily held that there is no bar to file a suit for declaration to set aside the judgment and decree passed by a Court of law. On this primary grounds alone had rejected the application. Besides, the Trial Court has also taken note of the fact that the issues have been framed and with respect of res judicata and
- 21 -
CRP No.100076 of 2022 limitation and Order II Rule 2 of CPC and that the matter would be adjudicated after the trial. The Trial Court has framed the following issues for its consideration:
"1. Whether the plaintiff proves that, the judgment and decree in O.S.No.68/2001 dt: 24-02-06 is void, illegal and not binding on plaintiff?
2. Whether the suit is hit by resjudicata?
3. Whether suit is barred by limitation?
4. Whether suit is hit by provisions of order 2 Rule 2 of CPC?
5. Whether the plaintiff is entitled for relief claimed?
6. What order or decree?"
23. Notwithstanding the framing of issues as above, the Trial Court ought to have seen whether in the absence of specific averment with regard to fraud in serving of summons on the respondents in the earlier suit, as noted in the judgment of the Atul Chandra Sarkar (Supra), a subsequent suit challenging the ex parte decree as in the present case would be maintainable. That not have been done order rejecting the application merely because issue have been framed is not sustainable. In this regard the Trial Court therefore ought to have adverted to contents of
- 22 -
CRP No.100076 of 2022 paragraph Nos.11, 12, 13 and 14 of the affidavit accompanying the application which are extracted herein above.
24. In view of the above, this Court is of the considered view that the matter requires reconsideration and the Trial Court be directed to reconsider the said application filed by the petitioners under Order VII Rule 11 of CPC in the light of the judgment of the Apex Court in the case of Canara Bank (Supra) and the judgment in the case of Atul Chadra Sarkar (Supra), and pass appropriate order within two months from the date of receipt of this order.
25. Accordingly, petition is allowed. Order dismissing the application filed by the petitioner is set aside. Matter is remitted to the Trial Court to look into the aforesaid provisions of law and read the plaint averments and come to the conclusion in accordance with law if the
- 23 -
CRP No.100076 of 2022 suit in its present form is maintainable and pass appropriate orders accordingly.
Sd/-
JUDGE EM: 1 to 12 RH: 13 to end List No.: 1 Sl No.: 36