JEEVRAJ MUNSHI SHAH Vs. COLLECTOR THANE

JUDGEMENT

(1.) THIS Second Appeal is directed against the judgment and order dated June 17, 1993 passed by the District Judge, Thane, confirming a judgment and decree of the Joint Civil Judge, Senior Division, Thane, dismissing the plaintiffs suit solely on the ground that it was barred by the provision of res judicata under section 11 of the C. P. C.

(2.) THE facts leading up to the suit, out of which this Appeal arises have been related in the judgment delivered by the Joint Civil Judge, Senior Division, Thane. No useful purpose will be served by repeating them. Suffice it to say that before filing the present suit, the plaintiff had filed Suit No. 23 of 1977 in the Court of Civil Judge, Senior Division, Thane, raising similar issues and claiming almost identical reliefs. The learned Judge, who tried the said suit, held that the suit was not maintainable for want of notice under section 80 of the C. P. C. The learned Judge, however, though holding that the suit did not lie, purported to decide other issues in the case. Amongst other things, he held that the construction made by the plaintiff is in contravention of construction rules and bye-laws under the various enactments, and that the plaintiffs construction has resulted in encroachment upon the public road and other properties. The plea of res judicata is based on the said judgment of the Civil Judge, Senior Division, Thane.

(3.) HAVING heard Mr. Angal, learned Counsel for the appellant and Mr. Tated, learned A. G. P. for the respondent, I am of the opinion that both the courts below have committed an error of law in dismissing the suit of the plaintiff on the ground that it was not maintainable under the provisions of section 11 of the C. P. C. , being barred by the principles of res judicata. Order VII, Rule 11 of the C. P. C. empowers the Court to reject the plaint where the suit appears from the statement in the plaint to be barred by any law. The provision of section 80 debars the plaintiff to institute a suit against the Government or a public officer in respect of any act purporting to have been done by such public officer in his official capacity until he complies with such obligation, which fact is required to be stated in the plaint itself in terms of section 80. According to this provision, therefore, the plaint of the plaintiff in his earlier suit should have been rejected, without the consideration of any other question. The rejection of the plaint under Rule 11 of Order VII of the Code entitles the plaintiff to institute a fresh suit in respect of the same cause of action under Rule 13 of the said Order. The short question is where the Court having failed to pass an order of rejection under the provisions of Order VII, Rule 11 of the Code, proceeds to determine the issues on merits and ultimately dismisses the suit on the ground of non-compliance of the provision of section 80 of the Code, whether a second suit will be barred by the principles of res judicata.