Calcutta High Court (Appellete Side)
M/S. Lokenath Housing Udyog & Ors vs Rekha Hait & Anr on 4 June, 2014
Author: Harish Tandon
Bench: Harish Tandon
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46 04.06.14 C.O. 1691 of 2014
akd
M/s. Lokenath Housing Udyog & Ors.
Vs.
Rekha Hait & Anr.
--------
Mr. Udayan Ray, Mr. Sukanta Mondal.
... for the petitioner.
This revisional application is directed against the order no. 8 dated 13th March, 2014 passed by the learned Civil Judge (Senior Division), 1st Court Barasat in Title Suit No. 649 of 2012, by which an application under Order VII Rule 11 of the Code of Civil Procedure is rejected.
The plaintiff/opposite party filed a suit for declaration of his right, title and interest in respect of 'B' schedule property on the strength of the purported development agreement dated 29th March, 1996 and recovery of possession. The defendants/petitioners appeared and filed an application under Order VII Rule 11 of the Code for rejection of the plaint primarily on the ground that the relief claimed in the present suit was already granted in the earlier suit instituted by the plaintiff/opposite party.
In fact, it is tried to be contended that the present suit is barred by the principles of res judicata. It does not admit any ambiguity in saying that the question of res judicata is a mixed question of fact and law. To attract the principles of res judicata the 2 pleadings, issues and the judgement of the earlier suit are required to be brought on record. At the time of considering an application under Order VII Rule 11 of the Code, the Court shall restrict its perusal to the averments made in the plaint. The Court shall decline to go into the averments either made in the written statement or any other document(s)/application(s) than the plaint.
The reading of the plaint does not suggest that it can be thrown at the nascent stage on the ground that it is otherwise barred by law. Since the application was solely based upon the point of res judicata, which is a mixed question of fact and law, this Court does not find any infirmity or illegality in rejecting the said application filed by the petitioners.
This Court does not find any ground justifying its interference under Article 227 of the Constitution of India.
The revisional application is thus dismissed. There will be no order as to costs.
(HARISH TANDON, J.) 3