L. NARAYANA MURTY Vs. M. VENKATA RAMANA RAO

JUDGEMENT

(1.) Defendant Nos. 1 and 2 in Title Suit No. 23 of 1988 of the Court of Learned Civil Judge (Senior Division), Rayagada, have filed this revision assailing the Order Dated January 3, 2009 passed by the said Court rejecting the petition filed under Order 7, Rule 11 of the Code of Civil Procedure, in short, 'Code' and refusing to reject the suit as not maintainable.

(2.) OPP . Party No. 1, as Plaintiff, had filed the aforesaid suit with a prayer for declaration that he has undivided and half interest in the suit land and the sale deeds executed in favour of the present Petitioners, who are Defendant Nos. 1 and 2 in the Court below by his father would not affect his right, title and interest over the suit property. After receiving notice and in the midst of hearing, Defendants 1 and filed a petition under Order 7, Rule 11 of the Code of Civil Procedure with a prayer to reject the plaint on the ground that the same was hit by the principles of res judicata. According to the Defendants, the Plaintiff had challenged the sale deeds said to have been executed in the year 1976 in T.S.No.4 of 1981 through his sister, who claimed to be his legal guardian and the said suit was dismissed. Thus, the present suit for the self -same relief was not maintainable. It is further stated that even liberty granted to file a fresh suit under Order 23, Rule 1, C.P.C. cannot save the limitation and thus, the suit was also grossly barred by time. The said petition was resisted by the Plaintiff by filing objection. According to the Plaintiff, the suit was maintainable and is within time. That apart, it is stated that the said controversy can be answered in the suit itself and the plaint should not be rejected at the threshold. - -

(3.) MR . Dash, Learned Counsel appearing for the Petitioners submitted, rather forcefully, that the Trial Court without following the directions issued by this Court in W.P.(C) No. 10199 of 2007 and without rejecting the plaint under Order 7, Rule 11 of the Code acted illegally in holding that the suit was maintainable. It appears that the Petitioners had approached this Court earlier alleging non -disposal of a petition said to have been filed by them under Order 7, Rule 11 of the Code. The said Writ Petition was registered as W.P.(C) No. 10199 of 2007 and was disposed of by Order Dated 5truNovember, 2007. This Court directed the Trial Court to dispose of the petition filed by the Petitioners under Order 7, Rule 11 of the Code on its own merits. This Court further directed that as the suit is of the year 1988, the same should be disposed of expeditiously preferably within a period of 3 months. Strictly in consonance with such direction, the Trial Court heard the petition filed under Order 7, Rule 11 of the Code and by a well discussed order, rejected the petition and the said order is impugned in this Civil Revision.