Madhya Pradesh High Court
Smt. Sunderbai vs Dinesh Gupta on 25 April, 2022
Author: Arun Kumar Sharma
Bench: Arun Kumar Sharma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
ON THE 25th OF APRIL, 2022
CIVIL REVISION No. 803 of 2019
Between:-
1. SMT. SUNDERBAI W/O LATE JAGDISH PRASAD
GUPTA , AGED ABOUT 52 YEARS, OCCUPATION:
BUSINESS SHARDA DEVI DHAM ARKANDI DEVIJI
CHOUKI SHARDA MATA MANDIR P.S. MAIHAR
DISTT. SATNA (MADHYA PRADESH)
2. SHERU @ RAHUL S/O LATE JAGDISH PRASAD
GUPTA , AGED ABOUT 32 YEARS, OCCUPATION:
BUSINESS SHARDA DEVI DHAM ARKANDI DEVIJI
CHOUKI SHARDA MATA MANDIR P.S. MAIHAR
DISTT. SATNA (MADHYA PRADESH)
3. CHHOTU @ HEMANT S/O LATE JAGDISH PRASAD
GUPTA , AGED ABOUT 28 YEARS, OCCUPATION:
BUSINESS SHARDA DEVI DHAM ARKANDI DEVIJI
CHOUKI SHARDA MATA MANDIR P.S. MAIHAR
DISTT. SATNA (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI PRIYANK CHOUBEY, ADVOCATE )
AND
1. DINESH GUPTA S/O LATE KODULAL GUPTA , AGED
ABOUT 40 YEARS, OCCUPATION: BUSINESS
SHARDA DEVI DHAM ARKANDI DEVI JI CHOUKI
SHARDA MATA MANDIR P.S. MAIHAR (MADHYA
PRADESH)
2. RAVI GUPTA S/O LATE KODULAL GUPTA , AGED
ABOUT 36 YEARS, OCCUPATION: BUSINESS
SHARDA DEVI DHAM ARKANDI DEVIJI CHOUKI
SHARDA MATA MANDIR P.S. MAIHAR DISTT.
SATNA (MADHYA PRADESH)
3. SMT.SHALU GUPTA D/O LATE KODULAL GUPTA
OCCUPATION: BUSINESS SHARDA DEVI DHAM
ARKANDI DEVIJI CHOUKI SHARDA MATA
MANDIR P.S. MAIHAR DISTT. SATNA (MADHYA
PRADESH)
4. SMT.SAPNA GUPTA D/O LATE KODULAL GUPTA ,
AGED ABOUT 35 YEARS, OCCUPATION: BUSINESS
SHARDA DEVI DHAM ARKANDI DEVIJI CHOUKI
SHARDA MATA MANDIR P.S. MAIHAR DISTT.
SATNA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ASHISH RAWAT, ADVOCATE )
Th is revision coming on for admission this day, the court passed the
2
following:
ORDER
With the consent of the parties, the matter is finally heard. This revision has been preferred under Section 115 of the Code of Civil Procedure by the defendants/petitioners challenging the Order dated 24.10.2019 passed by Civil Judge Class-II, Maihar, in Civil Suit No.102A/19 whereby the application of defendants filed under Order 7 Rule 11 CPC was dismissed.
2. Brief facts leading to the present revision are that the plaintiffs / respondents filed a civil suit no.93A/15 for declaration and permanent injunction against the petitioners / defendants on the disputed shop no. 24 which is situated at Mandir Premises Maihar District Satna (MP) and an application under Order 39 Rule 1 and 2 CPC was also filed along with the civil suit. However, the said civil suit was dismissed on 3.8.2016 for want of prosecution. Thereafter, the plaintiffs / respondents including other plaintiffs filed second civil suit no.102A/19 with regards to the same disputed property against the petitioners / defendants. When, the second civil suit was filed, the defendants / petitioners filed an application under Order 7 Rule 11 CPC on the ground that the suit is barred by principle of res judicata as previously Civil Suit No. 93A/15 related to the same property filed between the parties was dismissed on 3.8.2016 by First Civil Judge Class II, Maihar, District Satna.
3. The plaintiffs /respondents filed their reply and denied all the allegations set forth by the defendants. It was also contended that the aforesaid previous suit was dismissed for want of prosecution and it was not decided on merit, therefore, the result of previous suit cannot operate as res judicata.
4. After hearing both the parties, the learned trial Court dismissed the application of the defendants holding that whether the present suit is barred by principle of res judicata or whether the parties and issue in the previous suit and the present suit are similar, are the mixed questions of facts and law, and can only be decided after recording of evidence. Therefore, Section 11 of CPC is not attracted. Hence ,this revision.
5. It is argued by the counsel for petitioners that the trial court committed mistake by dismissing the aforesaid application. It is clearly established from the 3 plaint of both cases that the land involved in the second suit was also the disputed property in the previous suit. The parties are also related to the parties of previous suit, therefore, the subsequent suit was not tenable. Hence, the impugned order dated 24.10.2019 be set aside and the suit be dismissed.
6. The respondents / plaintiffs opposed the aforesaid contention. It is submitted by the counsel for respondents that in the present suit some other parties are also included. The date of cause of action in both suits are different. The previous suit was not dismissed on merit, therefore, the result of previous suit will not operate as res judicata. Hence, the trial court did not commit any mistake by dismissing the application filed by the petitioners under Order 7 Rule 11 of CPC.
7. It appears from the record that previous civil suit no.93A/15 was filed by plaintiff Smt. Sapna Gupta W/o. Dinesh Gupta against Smt. Sundarbai W/o. Jagdish Prasad Gupta; while the subsequent civil suit no.102A/19 has been filed by the plaintiffs who are four in number including the plaintiff in earlier suit against the defendants who are three in number including the defendant in earlier suit. If the status of the parties concerned is seen, it is found that the plaintiff Smt. Sapna in previous suit is plaintiff no. 4 in the new suit including the other plaintiffs and the defendant Smt. Sunderbai in previous suit is defendant no.1 in the new suit including the other defendants. However, it is found that the property in dispute is the same in both the suits filed by the plaintiffs.
8. The main question involved in this case is related to the res judicata. It is required to see that whether the dismissal of previous suit will be operated as res judicata or not? If we see the order sheet dated 3.8.2016 of the previous suit, then it appears that the case was fixed for plaintiffs’ evidence but neither the plaintiff was present nor her counsel was present. In the absence of plainiff as well as her counsel, the Court dismissed the suit for want of prosecution. It is clear like crystal that the previous suit was dismissed for want of prosecution and the dismissal of suit for non-prosecution was not a decision on merit. Hence, the said order cannot operate as res judicata.
9. In the case of Jantantra Griha Nirman Co-operative Society Ltd. Vs.State of M.P. and others 2008 (II) MPWN 87 it has been held that the 4 plaintiffs were not the party in the previous suit. Therefore, the Court held that the suit cannot be dismissed upon the basis of res judicata.
10. In another case of Delhi Development Authority Vs.Bhola Nath Sharma (Dead) by Lrs. and others AIR 2011 SC 428 it has been held by the Supreme Court that the Special leave petition, which was dismissed summarily by the Supreme Court without going into merits of the case, would not operate as res judicata because no question of law was decided in that order.
11. In the present case also, the previous suit was not decided on merit. The controversy of suit was not considered. Only upon the technical ground of non- appearance, the suit was dismissed. The aforesaid order cannot be operate as res judicata in the subsequent suit.
12. For the aforementioned reasons, there is no illegality or perversity in the order passed by the trial Court. The revision filed by the petitioners being merit- less is accordingly dismissed.
(ARUN KUMAR SHARMA) JUDGE JP Signature Not Verified SAN Digitally signed by JITENDRA KUMAR PAROUHA Date: 2022.04.27 17:23:58 IST