BHAGWAN SINGH Vs. SURESH

JUDGEMENT

(1.) Heard Sri Divakar Rai Sharma, learned Counsel for the petitioners.

(2.) The writ petition has been filed by the defendants against the order dated 21.8.2004 rejecting an application under Order VII, Rule 11 C.P.C. which stands confirmed by an order dated 11.10.2004 passed in Civil Revision No, 212 of 2004 by the District Judge, Aligarh. Plaintiff-respondents filed Original Suit No. 100 of 2003 in the Court of Upper Civil Judge (Junior Division) Hawaii, Aligarh for cancellation of the sale deed dated 17.11.1990. The facts of the case are that registered sale deed was executed on 17.11.1990 in favour of the defendants by late Smt. Bhauti. Father of the present plaintiffs Sri Zila Singh filed original suit No. 692 of 1993 for cancellation of the sale deed which was dismissed in default on 12.2.1999. No restoration application was filed and subsequently the present suit was instituted. The defendant-petitioners filed an application for rejecting the plaint under Order VII, Rule 11 C.P.C. on the ground that the suit is barred by limitation as the sale deed was executed and registered on 17.11.1990 and the limitation for instituting a suit for cancellation of sale deed is only three years. The second objection raised by defendant-petitioners that since the previous original suit No. 692 of 1993 filed by the plaintiff's father was dismissed in default for the same relief and the same was not restored as such is barred by Principle of res-judicata.

(3.) It is admitted that the previous suit relating to the year 1993 was dismissed in default and no finding on merit was recorded. Counsel for the petitioners has emphasized that since the sale deed was a registered document it is to be presumed that notice of the deed is to all and sundry, it wilt be deemed that since the document was a registered document every person shall be deemed to have knowledge about the said instrument from the date of registration. Reliance has been placed by Counsel for the petitioners on a decision of this Court in the case of Godhan and Ors. v. Ram Bilas, reported in A.I.R. 1995, Allahabad, Page 357 paragraph 22. It has been argued by the Counsel for the petitioners that Order VII, Rule 11 C.P.C. casts a duty on the Court to reject the claim for non disclosure of cause of action and since in the instant case the defendants has brought the fact to the notice of the Court regarding dismissal of the previous suit for same cause of action by the father of plaintiffs. The Court was liable to reject the plaint and a manifest illegality has been committed by the Courts below in rejecting the application under Order VII, Rule 11 C.P.C. Reliance has been placed in the case of I.T.C. Limited v. Rakesh Bihari Srivastava and Ors., A.I.R. 1997, Allahabad, 323, and Chandra Mohan Singhal and Ors. v. State of U.P., 2002 (2), Allahabad Rent Cases, Page 446 of Paragraphs 23, 24 and 25. I have perused judgments cited by the Counsel for the petitioners. The objection raised on behalf of the petitioners is not disputed that in the event certain questions/pleas already contended and contested up to the highest Court of the land has been adjudicated in the previous suit then subsequent suit should not be permitted to continue. The principle laid down in the aforesaid cases are not disputed but in the present case the trial Court has rejected the application under Order VII, Rule 11 C.P.C. which has been challenged in the writ petition. It is always open for the petitioner to get the question decided by the Courts below after getting a preliminary issue on the question of maintainability of the suit decided after recording evidence. The trial Court has clearly recorded a finding that the objections raised by the petitioners as to whether the suit is barred by limitation or on which date the plaintiff got the knowledge about the execution of sale deed is to be decided after evidence is led by either parties, the question is yet to be decided by the Courts below. In the circumstances, I am not inclined to interfere in the writ petition at this stage and pre-empt the decision of the Courts below.