Allowed

Ganesula Uma Parvathi v. Ayitam Rama Swamy

Telangana HC7 Mar 2011CRP/433/2011

Case brief

AI extract

What is this about?

This civil revision calculates that the lower court erred in rejecting the plaint at the threshold for res judicata without holding an enquiry into evidence. The revision bench set aside the order and directed the court below to admit the suit and proceed after framing issues.

What did the court decide?

The impugned order rejecting the plaint is set aside; the suit is to be admitted for further proceedings in accordance with law.

Ganesula Uma Parvathi Vs Ayitam Rama Swamy — Property and Title | Telangana HC (2011)

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THE HON’BLE Ms. JUSTICE G. ROHINI

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Civil Revision Petition No. 433 of 2011

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Dated: 07.03.2011

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Between: Ganesula Uma Parvathi, Hyderabad. … Petitioner And Ayitam Rama Swamy, West Godavari District and another. … Respondents

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*** THE HON’BLE Ms. JUSTICE G.ROHINI**

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+Civil Revision Petition No.433 of 2011

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%07.03.2011 Between # Ganesula Uma Parvathi, Hyderabad. …Petitioner $ Ayitam Rama Swamy, West Godavari District and another. ...Respondents ! COUNSEL FOR PETITIONER: Sri K.Siva Reddy ^ COUNSEL FOR RESPONDENTS : --< Gist: > Head Note: ? CITATIONS: 1. AIR 2008 SC 3174 THE HON'BLE MS JUSTICE G.ROHINI Civil Revision Petition No. 433 of 2011 O R D E R :

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This revision petition is filed under Section 115 of C.P.C. against the order dated 04.10.2010 passed by the learned Principal Junior Civil Judge, Narsapur rejecting the plaint in O.S.No.(Sr.)2296/31.05.2010 in purported exercise of power under Order VII Rule 11(d) of C.P.C.

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I have heard the learned counsel for the revision petitioner and perused the material available on record.

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It is not in dispute that the revision petitioner had earlier filed O.S.No.1193 of 2002 on the file of the Court of Senior Civil Judge, Narsapur for recovery of money allegedly due from the 1^st respondent herein and the same was decreed by judgment dated 25.03.2006. Pursuant thereto, when the revision petitioner filed E.P.No.70 of 2007 for sale of the schedule property, the 2^nd respondent herein filed E.A.No.545 of 2007 under Order 21 Rule 58 C.P.C. claiming title to the schedule property under a registered settlement deed dated 02.12.2002 said to have been executed by the 1^st respondent. The revision petitioner contested the said claim petition contending that the registered settlement deed was collusive, nominal and fraudulent document brought into existence to defeat her lawful claim. However, by order dated 20.11.2009 E.A.No.545 of 2007 was allowed by the learned Senior Civil Judge, Narsapur. Challenging the said order dated 20.11.2009 the revision petitioner filed an appeal and the same is pending.

¶11

While so, the petitioner filed O.S.(S.R.).No.2296 dated 31.05.2010 seeking a declaration that the transfer under the settlement deed dated 02.12.2002 is not valid under law. The said plaint was rejected at the threshold in purported exercise of power under Order VII Rule 11 (d) C.P.C. observing that the order in E.A.No.545 of 2007 on the file of Senior Civil Judge, Narsapur operates as res judicata under Section 11 C.P.C. Aggrieved by the same, the present revision petition is filed.

¶12

It is no doubt true that under Order VII Rule 11 C.P.C., the Court is competent to reject the plaint where the suit appears from the statement in the plaint to be barred by any law.

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However, learned counsel for the petitioner contended that the question whether the suit is barred by res judicata being a mixed question of fact and law cannot be decided at that stage and therefore, the Court below committed a grave error in rejecting the plaint at the threshold even without notice to the defendant. In support of his submission the learned counsel relied upon a decision of the Supreme Court in Kamala and others v. K.T. Eshwara Sa and others^[1] .

¶14

Order VII Rule 11 of C.P.C. reads as under:

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11. Rejection of plaint:

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The plaint shall be rejected in the following cases:

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(a) where it does not disclose a cause of action;

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(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

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(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;

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(d) where the suit appears from the statement in the plaint to be barred by any law;

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(e) where it is not filed in duplicate;

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(f) where the plaintiff fails comply with the provisions of Rule. (provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.)

¶23

While interpreting the expression “where the suit appears from the statement in the plaint to be barred by any law” employed in Rule 11(d) it has been held by the Courts that a conclusion that the suit is barred by any law as provided under Rule 11(d) has to be drawn from the averments made in the plaint and at that stage, it is not open to the Court to look into any evidence.

¶24

In this context, it would be appropriate to refer to the following observations made by the Supreme Court in Kamala’s case (supra).

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“Order VII, 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 VII, 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 VII, Rule 11 of the Code is 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 VII, Rule 11 of the Code is one, Order XIV, Rule 2 is another.

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For the purpose of invoking Order VII, 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.

¶27

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 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.

¶28

It is one thing to say that the averments made in the plaint on their face discloses 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.

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The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact of law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject matter thereof, the application for registration of plaint should be entertained.”

¶30

Admittedly, no notice was issued to the defendants in the present case and no enquiry was conducted on the question whether the order passed by the Senior Civil Judge, Narsapur in E.A.No.545 of 2007 operates as res judicata. As rightly submitted by the learned counsel for the petitioner, no such conclusion is possible from the averments in the plaint.

¶31

Having regard to the facts and circumstances of the case,

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I am of the considered opinion that the Court below committed an error in concluding at that stage that the order in E.A.No.545 of 2007 operated as res judicata.

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Hence, the order under revision which suffered from a material irregularity in exercise of jurisdiction conferred under law cannot be sustained. Accordingly, the said order is hereby set aside and the revision petition is disposed of with a direction to the Court below to number the suit if the same is otherwise in order and proceed further in accordance with law. It is made clear that this shall not preclude the Court to frame an appropriate issue with regard to res judicata and to pass appropriate orders after hearing both the parties.

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Accordingly, the Civil Revision Petition is disposed of. No costs.

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_______________ G. ROHINI, J. Date: 07 .03.2011 KLP Note: L.R. copy to be marked. [1] AIR 2008 SC 3174

Ganesula Uma Parvathi v. Ayitam Rama Swamy

Case brief

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Ganesula Uma Parvathi v. Ayitam Rama Swamy

Case brief

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