BHUPATSINH VISHAJI VAGHELA Vs. SHAKUNTALABEN DURLABHJIBHAI KHOKHAR

JUDGEMENT

(1.) BY the present revision application filed under section 115 of the Code of Civil Procedure, 1908, ("the Code"), the petitioneroriginal defendant has challenged the order dated 15.4.2013 passed by the learned 14th Additional Senior Civil Judge, Rajkot below application Exh. 17 in Special Civil Suit No. 220 of 2011.

(2.) THE application Exh. 17 was preferred to reject the suit on the ground that the suit is barred by the principles of res -judicata. The learned Judge has rejected the application on the ground that whether the judgment rendered in the earlier suit being Regular Civil Suit No.924 of 1991 would apply as res -judicata or not is a matter which cannot be decided without leading the evidence. The learned Judge also observed that on perusal of the copies of the plaint and the judgment rendered in the earlier suit, it cannot be decided at the present stage that the principles of res judicata would apply to the present suit.

(3.) I have heard learned Senior Advocate Mr. Percy Kavina with learned Advocate Mr.Ashish Dagli for the petitioner and learned Advocate Mr. Gunvant Shah for the respondent original plaintiff. Mr. Kavina submitted that the bare looking at the contents of the plaint would reveal that the plaintiff had filed the suit in the year 1991 for the same cause of action and after having lost in the suit, abandoned his claim in appeal and since the petitioner is the successor in title and claiming through the original owner, can certainly urge for rejection of the plaint not only on the ground that the plaint is barred by res judicata but also on the ground that the plaintiff has been filing vexatious and frivolous litigations. Mr. Kavina submitted that even the subsequent suit filed by the very plaintiff against the petitioner being suit no. 133 of 2009 was withdrawn though with permission to file the fresh suit but the said suit was also barred by res -judicata as also by law of limitation. Relying on the provisions of Order 23, Rule 2 of the Code, Mr. Kavina submitted that the limitation for the present suit should be taken to have commenced when the earlier suit was filed and considering the cause of action stated in the plaint, the suit could be said to have been barred by the law of limitation and such suit cannot be allowed to be tried just to find out whether the suit at later point of time could be dismissed on the ground of estoppel, res judicata or of law of limitation. Mr. Kavina submitted that considering the averments of the plaint, it clearly appears that the plaintiff has all throughout right from 1991 onward continued to file frivolous and vexatious litigations and such litigations could be stopped by taking the averments made in the plaint itself by exercising powers under Order 7 Rule 11 of the Code. In support of his submission, learned Senior Advocate Mr. Kavina has relied on the judgment in the case of T. Arivandandam v. T. V. Satyapal and another, 1977 AIR(SC) 2421 so as to contend that when the Court finds from the contents of the plaint that the suit filed is frivolous and vexatious and that it is barred by the principles of res -judicata and law of limitation, the Court itself can exercise the powers under Order 7, Rule 11 of the Code to reject the plaint at the threshold.