K. SHANMUGAIYA Vs. K. AVUDAIYAMMAL

JUDGEMENT

(1.) Against the dismissal of the petition filed under Order 7 Rule 11(d) of CPC, this Civil Revision Petition is filed by the petitioner/defendant.

(2.) The respondent/plaintiff has filed the above suit in O.S.No.196 of 2012 for declaration that the 2nd schedule property absolutely belongs to her and for mandatory injunction to remove the illegal construction made in the property obstructing the flow of drainage water from the house of the plaintiff. Pending suit, the revision petitioner/defendant filed the present petition to reject the plaint which was dismissed by the trial Court, against which, this revision petition is filed.

(3.) The learned counsel for the petitioner/defendant would further submit that the respondent/plaintiff suppressed the decree dated 31.10.1985 passed in the earlier suit in O.S.No.707/1981 contested between the predecessors in title of the defendant and plaintiff, wherein the issue involved in the present suit had already been decided and settled, and therefore, the plaint is liable to be rejected on the principles of res judicata. He would further state that the finding in the earlier suit and the Commissioner Report filed in the present suit would show that the suit properties in the present suit and earlier suit are one and the same. The respondent/plaintiff did not disclose the factum of the earlier suit in the plaint, which is a clear abuse of process of law. Hence, the suit is liable to be dismissed not only on the ground of principle of res judicata but also on the ground of suppression of fact. In support of his contentions, he would rely on the judgment of the Hon'ble Supreme Court in Akbar Ali vs. Umar Khan in SLP.No. 31844/18 dated 12/02/21 wherein, it has been held that the reasons in Order VII Rule 11 CPC is not exhaustive and the Court has got powers to set aside even vexatious suit. The Court below, without considering the above aspects, has erroneously dismissed the application filed by the petitioner. Thus, he prayed to allow this revision petition.