JAMUNA BAI Vs. LAKHAN LAL

JUDGEMENT

(1.) The Plaintiffs in a suit for declaration of title, permanent injunction and for cancellation of entry made in the revenue record are the Petitioners in this application under Article 227 of the Constitution of India. They challenge an order by which the plaint has been rejected in exercise of authority under Order 7 Rule 11 of the Code of Civil Procedure, 1908; for short 'CPC'; on the basis of an application filed by the contesting Defendants invoking that provision of law.

(2.) The substance of the issues which would gain immediate attention is that there was a prior suit in which the Plaintiffs and some of the Defendants had joined. That suit is stated to have been dismissed for default under Order 9 Rule 8 CPC. The effect of such dismissal is referable to Order 9 Rule 9(1) CPC. As to whether the subject matter of that suit and the cause of action for that suit are the same as that of the present suit, is a matter for decision when that earlier ex parte decree is put in defence. This is because the first sentence of sub-rule 1 of Order 9 Rule 9 CPC itself clearly says that the Plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. Therefore, the identity of the cause of action is relevant to decide a bar to fresh suit under Order 9 Rule 9 CPC. If there is a decree which would fall under consideration for the purpose of res judicata in terms of Section 11 CPC, matters would have to be considered from that view.

(3.) However, Order 7 Rule 11 CPC provides the power for rejection of the plaint on enumerated grounds provided in that provision. That is a power of drastic nature as has been noticed by the Hon'ble Supreme Court in P.V.Guru Raj Reddy v. P. Neeradha Reddy, 2015 8 SCC 331. The power of rejection cannot be exercised based on the stand taken by the Defendants in the written statement or in the application for rejection of the plaint. Such pleading of the Defendants is totally immaterial at the stage of considering whether the the plaint has to be treated as rejected in terms of Order 9 Rule 9 CPC.