Partly allowed

Babulal v. Bhanwar Lal

Rajasthan HC27 Sept 2023CR/122/2019

Case brief

AI extract

What is this about?

In a civil revision, the High Court set aside the civil court's decision to decide res judicata on merits via an Order VII Rule 11 application. Following a Supreme Court precedent, the revision held that such issues must be decided on merits after framing specific issues.

What did the court decide?

The order holding that the suit is not barred by res judicata is set aside; the lower court is directed to frame and decide the issue on merits.

Babulal Vs Bhanwar Lal — Partition | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Revision Petition No. 122/2019

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Babulal S/o Late Shri Surajmal Soni, Aged About 56 Years, R/o Behind Kandoyi Building, Sujangarh, District Churu (Rajasthan)

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----Petitioner

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Versus

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Bhanwar Lal S/o Late Shri Surajmal Soni, Aged About 76 Years, R/o Sujangarh, Churu, At Present R/o D-21, Shivaji Nagar, Housing Board Nal Ke Pass, Jaipur.

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Ratan Lal S/o Late Shri Surajmal Soni, Aged About 64 Years, R/o Ward No. 1, Sujangarh, At Present R/o Ratan Art Center, Sindhi Mandir Ke Piche Sujangarh, District Churu (Rajasthan)

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Kanhaiya Lal S/o Late Shri Surajmal Soni, Aged About 61 Years, R/o Ward No. 01, Sujangarh, Churu At Present Residing At Bidasar.

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Shanker Lal S/o Late Shri Surajmal Soni, Aged About 52 Years, R/o Ward No. 01, Near Indrababa Ki Bagichi, Sujangarh, Churu (Rajasthan)

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----Respondents

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For Petitioner(s)	: Mr. Sameer Pareek
For Respondent(s)	: Mr. Naresh Singh for Mr. Rakesh Arora

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HON'BLE MS. JUSTICE REKHA BORANA Order

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27/09/2023

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The present revision petition has been preferred against the order dated 28.05.2019 passed by the Civil Judge, Sujangarh (Churu) in Civil Suit No.9/2018 whereby the application under Order VII Rule 11, CPC as preferred by the defendant has been rejected.

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The application was filed by the defendant on four grounds: Firstly , the suit was not valued properly and had been filed

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with insufficient court fee; secondly , the plaint did not disclose any cause of action; thirdly , the suit was barred by res judicata as a similar suit for partition and perpetual injunction was filed by the plaintiffs being Civil Suit No.23/2010 which had been

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dismissed on 01.09.2017. As the parties, disputed property and the reliefs as prayed for in the said suit were the same, the present suit cannot be maintained being barred by res judicata ; and fourthly , the reliefs/claims prayed for in the present suit could have been raised by the plaintiff in the earlier suit but as the same had not been raised earlier, the present suit is also barred by the provisions of Order II Rule 2, CPC. 3. So far as the issue of valuation of the suit and deficit court fee being paid and further no cause of action having been arisen/disclosed are concerned, the Court below specifically held that the same are mixed questions of fact and law and can be decided only after an issue being framed qua the same and the evidence being led on the same.

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Qua ground of the suit being barred by res judicata , the Court specifically held that the earlier suit was filed for partition of the ancestral property whereas the present suit has been filed for eviction and injunction and hence, principle of res judicata would not apply to the present suit.

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Regarding the ground of the suit being barred in terms of Order II Rule 2, CPC, the Court below held that the earlier suit was decided/disposed of on 01.09.2017 whereas the present suit has been filed by the plaintiff qua the alleged cause of action which arose on 18.02.2018. Hence, any pleadings qua the cause of action which arose on 18.02.2018 and any relief qua the said cause of action, could not have been made in the suit which was disposed of in the year 2017.

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Learned counsel for the petitioner submitted that rejection of the application of the defendant is totally erroneous as the finding

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of the Court to the effect that the suit was not barred by res judicata is prima facie erroneous on the face of it and deserves to be set aside. Learned counsel submitted that the Court below wrongly observed that the issue pertaining to deficit court fee is a mixed question of fact and law whereas, a plaint can be rejected by the Court in terms of Order VII Rule 11, CPC if the court fee is deficit. He submitted that the issue ought to have been decided at that stage itself.

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Per contra learned counsel for the respondent supported the order impugned and submitted that the same is totally in consonance with law and hence, deserves no interference. 8. Heard learned counsel for the parties and perused the material available on record. 9. As is the settled position of law, while deciding an application under Order VII Rule 11, CPC the Court is required to look only into the pleadings as made in the plaint. The case of the plaintiffs was that the defendant broke the locks put on their share of the property and raised illegal construction on the same which fact came to their knowledge only on 18.02.2018 and hence, it is on the said date that the cause of action accrued to the plaintiffs. The fact whether cause of action accrued to the plaintiffs on some other date and not on the date as averred by them in the plaint, could clearly be decided only after the evidence being led by the parties. The observation of the Court below to that extent cannot be faulted with.

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So far as the valuation of the suit is concerned, the suit was valued by the plaintiffs for Rs.1,50,000/- and the court fee of Rs.10,125/- was paid qua the same. Regarding the ground of the

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same being deficit is concerned, it is the settled position of law that a plaint cannot ipso facto be rejected only on the basis of an averment been made by the defendant to the said effect. Law provides for the Court to direct the plaintiff to correct the valuation if it finds the same to be undervalued and further to direct to make the deficit court fee good if it finds the same to be insufficiently stamped. The plaintiffs have averred in the plaint that the market value of the disputed portion is Rs.1,50,000/- and the payable court fee on the said valuation would be Rs.10,125/which is being paid. The issue whether the market price as averred by the plaintiff is correct or not, could also have been decided only after perusal of the documents, if any, placed on record by the defendant to prove the contrary. Obviously, the same could not have been done by the Court below within the purview of Order VII Rule 11, CPC. Hence, the conclusion of the Court that it could be decided only after an issue being framed, is totally in consonance with the governing law.

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So far as the finding of the Court below that the suit was not barred by res judicata is concerned, the same cannot be affirmed in view of the latest pronouncement of the Hon’ble Supreme Court judgment in the case of Keshav Sood vs. Kirti Pratap Sood & Ors., Civil Appeal No.5841/2023 . The Hon’ble Apex Court in the case of Keshav Sood (supra) held as under:

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“5. As far as scope of Rule 11 of Order VII of CPC is concerned, the law is well settled. The Court can look into only the averments made in the plaint and at the highest, documents produced along with the plaint. The defence of a defendant and documents relied upon by him cannot be looked into while deciding such application.

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6. Hence, in our view, the issue of res judicata could not have been decided on an application under Rule 11 of Order VII of CPC.

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The reason is that the adjudication on the issue involves consideration of the pleadings in the earlier suit, the judgment of the Trial Court and the judgment of the Appellate Courts. Therefore, we make it clear that neither the learned Single Judge nor the Division Bench at this stage could have decided the plea of res judicata raised by the appellant on merits.

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7. Therefore, we agree with the final conclusion of the Division Bench of the High Court that the suit needs to be decided on merits with a modification that the issue of res judicata will remain open and the learned Single Judge will frame an issue on res judicata along with the other issues.

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8. By keeping open the issue of res judicata, the appeal is disposed of.”

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In view of the above ratio as laid down by the Hon’ble Apex Court, the Court below could not have decided the issue of res judicata as raised by the defendant on merits on an application under Order VII Rule 11, CPC. The Court ought to have framed an issue qua the same and ought to have decided the same on merits after consideration of the complete documents as available on record.

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In view of the above observations, the order impugned dated 28.05.2019 to the extent it holds that the suit is not barred by res judicata is set aside. The learned Court below is directed to frame an issue qua res judicata also along with other issues and decide the same on merits. The present revision petition is hence disposed of with the above observations.

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The stay petition and the pending applications, if any, also stand disposed of.

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(REKHA BORANA),J

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191-T.Singh/-

Babulal v. Bhanwar Lal

Case brief

What is this about?

What did the court decide?

Babulal v. Bhanwar Lal

Case brief

What is this about?

What did the court decide?

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