Punjab-Haryana High Court
Balraj Singh And Ors vs Banwari Lal And Ors on 23 April, 2021CR No.819 of 2021 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.819 of 2021 (O&M)
Date of Decision: 23.04.2021
Balraj Singh and others
….Petitioner(s)
Versus
Banwari Lal and others
…..Respondent(s)
CORAM: HON’BLE MR. JUSTICE JASGURPREET SINGH PURI
Present: Mr. Ajay Jain, Advocate, for the petitioners.
****
Through Video Conferencing
JASGURPREET SINGH PURI, J.
The present revision petition has been filed under Article 227 of
the Constitution of India with a prayer for setting aside the order dated
19.03.2021 which has been passed by the learned Civil Judge (Junior
Division), Hisar vide which an application filed by the petitioners/defendants
under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure
for rejection of the plaint has been dismissed.
A brief factual metric of the case would be necessary before
considering the submissions made by the learned counsel for the petitioners.
The respondent/plaintiff (Banwari Lal) filed a suit for declaration to the effect
that plaintiff is sole and exclusive owner in possession with respect to the
property given in the head note of the plaint which has been annexed with the
present petition as Annexure P-1. It has been stated in the plaint that the
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plaintiff had filed a suit for injunction against Balraj Singh and others because
they had tried to forcibly take the possession and the Court had ordered to file
a suit for the partition of the land in question because the land of the plaintiff
and Balraj Singh and others fall under the same khasra numbers. After filing
of the civil suit by the respondent No.1, an application was filed by the
present petitioners who were defendants in the civil suit for rejection of plaint
on the ground that plaintiff had earlier filed a Civil Suit No. 365-C dated
18.08.2008 titled as Banwari Lal Versus Balraj Singh and others seeking
injunction restraining the defendants not to interfere in his alleged actual and
physical possession over the land in question by claiming himself to be the
sole owner in possession of the same and that in the said civil suit similar plea
was taken that the suit land exclusively belongs to him but such plea was
negated by the Civil Court vide judgment and decree dated 31.07.2014 by
recording a finding that the plaintiff had failed to prove his exclusive
possession over the land in question which along with the other land is a joint
property of the parties and that the said judgment has attained finality. A reply
to the aforesaid application was filed in which it was stated that the said
application was utterly false, vague and frivolous and has been filed only to
delay the proceeding of the case and that the question of the ownership of the
property in question was not disputed in the earlier suit but it was only
possession which was in dispute and, therefore, the present suit is not barred
by any law. This application has been now decided by the learned Civil Judge
(Junior Division), Hisar by passing the impugned order 19.03.2021 whereby
the said application has been dismissed.
The learned Civil Judge (Junior Division), Hisar dismissed the
application by considering the fact that the application under Order 7 Rule 11
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CPC cannot be allowed on the ground that the present suit was barred by the
principle of res-judicata because the earlier suit was a suit for injunction
whereas the present suit is a suit for declaration and, therefore, the principle of
res-judicata will not operate in present suit. Furthermore, in the earlier civil
suit for injunction the learned Civil Court has nowhere given any finding to
the effect that the plaintiff had no title over the property in dispute and rather
gave a finding to the effect that the plaintiff and the defendants are co-owners
in the property in dispute and, therefore, it will not preclude the plaintiff to
seek specific declaration of ownership over the property in dispute. The
learned Civil Court referred to the judgment of the Hon’ble Supreme Court in
‘P.V. Guru Raj Reddy Rep. by GPA Laxmi Narayan Reddy and another
Versus P.Neeradha Reddy and others’ [2015(8) SCC 331)] wherein it was
observed that at the stage of exercise of power under Order 7 Rule 11 CPC,
the stand of the defendants in the written statement or in the application for
rejection of the plaint is wholly immaterial. It is only if the averments in the
plaint ex facie do not disclose a cause of action or on a reading thereof the suit
appears to be barred under any law that the plaint can be rejected. In all other
situations, the claims will have to be adjudicated in the course of the trial. The
learned Civil Judge further observed that since the learned Civil Court did not
dismiss the previous suit on the ground that plaintiff was not co-owner of the
property in dispute but on the ground that he has failed to prove his exclusive
possession over the suit land, the present suit is not barred by the law of res-
judicata and moreover, the matter directly or substantially in issue in the
previous suit and in the present suit can be determined only after perusal of
pleadings of both the parties and in the present suit, the defendant is yet to file
his written statement and, therefore, the present application seeking
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the dismissal of the suit on the ground of res-judicata deserves dismissal on
the ground of filing at immature stage.
Mr. Ajay Jain, learned counsel for the petitioners submitted that
the impugned order is erroneous and deserves to be set aside on the ground
that the second suit was not maintainable in view of the fact that in the earlier
suit the question with regard to ownership was also considered. The learned
counsel has relied upon para 21 of the earlier suit which was a suit for
permanent injunction (Annexure P-4) in which it was observed that the
plaintiff had failed to prove that the disputed land tallies with the property
described in his sale deeds and he is in exclusive possession over the same
and that the defendants also failed to prove that they have occupied the
disputed property by any means of demarcation or by taking possession from
their vendor namely Munish Kumar and that the entire land is a joint property
and the parties are at liberty to settle on their respective shares after effecting
a formal partition from the competent Court. The learned counsel has relied
upon the judgment of the Hon’ble Supreme Court in ‘Sulochana Amma
Versus Narayanan Nair’ [ 1994(2) SCC 14] wherein it was held that in a suit
for injunction where title is in issue for the purpose of granting injunction, the
issue directly or substantially arises in that suit between the parties and when
the same issue is put in a later suit based on title between the same parties or
their privies in a subsequent suit the decree in the injunction suit equally
operates as res-judicata.
The learned counsel has submitted that in the earlier suit the
question of title was in issue for the purpose of grant of injunction and,
therefore, the present suit was barred by res-judicata.
I have heard the learned counsel for the petitioners.
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The law with regard to invoking of the provisions of Order 7
Rule 11 of Code of Civil Procedure is no longer res-judicata. In the present
case the petitioners sought to invoke Clause (d) of Order 7 Rule 11 CPC
which provides that a plaint can be rejected where a suit appears from the
statement in the plaint to be barred by any law.
The Hon’ble Supreme Court in ‘Kamala and others Versus K.T.
Eshwara Sa and others’ [2008(12) SCC 661] while referring to the
provisions of Order 7 Rule 11(d) of CPC observed that the same has a limited
application. The question as to whether the suit is barred by any law or not,
such a conclusion must be drawn from the averments made in the plaint and
what would be relevant for involving clause (d) of Order 7 Rule 11 CPC are
the averments made in the plaint and for that purpose there cannot be any
addition or subtraction. Furthermore, the absence of jurisdiction on the part of
the Court can be invoked at different stages and under different provisions of
the Code. Order 7 Rule 11 CPC is one, Order 14 Rule 2 is another.
Furthermore, 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. 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. Para No.15 and 16 of
the aforesaid judgment are reproduced as under.
’15. 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,
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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 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 7, Rule 11 of the Code is one,
Order 14, Rule 2 is another.
16. 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 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 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’.
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’. 6 of 9
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The Hon’ble Supreme Court in the case of P.V. Guru Raj
Reddy’s case (supra) observed that rejection of the plaint under Order 7 Rule
11 of the Code of Civil Procedure is a drastic power conferred in the Court to
terminate a civil action at the threshold and that the condition precedent to the
exercise of power under Order 7 Rule 11 CPC are stringent and have been
consistently held to be so by the Court. It is only if averments in the plaint ex
facie do not disclose a cause of action or on a reading thereof, the suit appears
to be barred under any law, the plaint can be rejected. In all other situations,
the claims will have to be adjudicated in the course of the trial. Para 5 of the
aforesaid judgment is reproduced as under:-
‘5. Rejection of the plaint under Order 7, Rule 11 of the CPC is
a drastic power conferred in the court to terminate a civil
action at the threshold. The conditions precedent to the exercise
of power under Order 7, Rule 11, therefore, are stringent and
have been consistently held to be so by the Court. It is the
averments in the plaint that has to be read as a whole to find
out whether it discloses a cause of action or whether the suit is
barred under any law. At the stage of exercise of power under
Order 7, Rule 11, the stand of the defendants in the written
statement or in the application for rejection of the plaint is
wholly immaterial. It is only if the averments in the plaint
ex facie do not disclose a cause of action or on a reading
thereof the suit appears to be barred under any law the plaint
can be rejected. In all other situations, the claims will have to
be adjudicated in the course of the trial’.
In the present case, the earlier suit filed by the respondent
Banwari Lal was a suit for permanent injunction as is clear from Annexure
P-4 and P-5 which is the judgment and a copy of decree-sheet respectively. A
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perusal of para 19 of the judgment shows that the learned Civil Court
observed that after going through the testimony of the witnesses, it is clear
that both the parties are putting their rival claims over the suit property.
Therefore, ownership is not in dispute, but the fact of possession is in dispute
and that all of them are the co-sharers. Reliance was placed by the learned
counsel for the petitioners on para 21 of the judgment in which it was
specifically observed that it is clear that the plaintiff failed to prove that the
disputed land tallies with the property described in his sale deeds and he is in
exclusive possession over the same and that the entire land is a joint property
and the parties are at liberty to settle on their respective shares after effecting
a formal partition from the competent Court. A perusal of the aforesaid
observations made in para No.19 and 21 of the judgment would show that it
was observed by the learned Civil Court that the ownership was not in dispute
and no finding has been recorded with regard to the fact as to who was the
owner of the property. It was a suit for injunction and the same was dismissed
on the ground that specific possession could not be proved as the plaintiff has
failed to prove that the disputed land tallies with the property described in his
sale deeds or that the plaintiff is in exclusive possession over the same and,
therefore, liberty was granted for settlement of respective shares after formal
partition from the competent Court. Therefore, there was neither any finding
with regard to ownership nor the same was disputed in the earlier suit. The
present suit was however filed seeking a declaration to the effect that the
plaintiff is sole and exclusive owner in possession of the suit land. Therefore,
the question which would arise for consideration in the present case is
whether the provisions of Order 7 Rule 11 CPC should have been invoked or
not in view of the law laid down by the Hon’ble Supreme Court in P.V.
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Guru Raj Reddy (supra) and Kamala’s case (supra). The provisions of
Order 7 Rule 11(d) CPC have limited application and it is a drastic step to
terminate a civil action at the threshold. When mixed question of fact and law
arise as in the present case, then the plaint cannot be rejected at the threshold.
The provisions of Order 7 Rule 11(d) CPC would apply when on the perusal
of the plaint itself the Court is ex facie satisfied that the plaint can be rejected
at the threshold without looking into the written statement or any other
evidence. However, in the present case at the most it can be a mixed question
of law and facts but certainly it cannot be said that the plaint can be rejected at
the threshold.
In view of the above, I do not find any illegality or perversity in
the impugned order passed by the learned Civil Judge (Junior Division), Hisar
and, therefore, the present revision petition is hereby dismissed.
23.04.2021 (JASGURPREET SINGH PURI)
rakesh JUDGE
Whether speaking : Yes/No
Whether reportable : Yes/No
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