HIMANGSHU DUTTA Vs. KALA MIA

JUDGEMENT

(1.) BY means of this revision petition under Section 115 of the Civil Procedure Code (For short, 'the Code'), the petitioner herein has called in question the legality and the correctness of the order dated 18.09.1999 passed by the learned Civil Judge, Jr. Division, No. 1, West Tripura, Agartala in T.S. No. 36 of 1999 whereby the application under Order VII, Rule 11 of the Code preferred by the defendant-petitioner herein praying for rejection of the plaint in the said. suit instituted by the respondent herein has been rejected.

(2.) A land dispute between the parties has culminated into the present proceeding which was preceded by another T.S. No. 28 of 75 filed by the respondent herein. The said suit was filed for declaration of title, confirmation of possession and consequential relief in the form of permanent injunction against the petitioner herein. Learned Addl. Munsiff Agartala, West Tripura finally adjudicated that suit (TS 28/75) by dismissing the same. In the second suit (TS 36/99) between the same parties in which the order impugned herein has been passed, the petitioner herein who was arrayed as defendant in that suit, filed an application under Order VII, Rule 11 of the Code praying for rejection of the plaint on two grounds, namely,

(3.) IT is the submission of Mr. Bhowmik, learned senior counsel for the petitioner herein that in the application under Order VII, Rule 11 of the Code, it was brought to the notice of the learned trial Court in para 4 thereof that the issues, statements and allegations made in the plaint were earlier made by the plaintiff respondent in TS 28/75 in respect of the same land and the said suit having been dismissed, the present suit was barred by the principles of res judicata. Again, in the objection filed by the plaintiff-respondent herein against the application of the defendant- petitioner for rejection of the plaint it has been clearly stated in para 5 that the earlier suit between the parties was disposed of on 13.03.1995 with a conclusion in para 7 of the judgment that the C Schedule land of the plaint was the land in possession of the plaintiff-respondent herein after the 'B' Schedule land thereof was sold to the petitioner herein. Thus, the dispute relating to the land having been decided in the earlier suit, the learned trial Court should have rejected the plaint at the very threshold. In support of this submission, Mr. Bhowmik has placed reliance on the decision of the Supreme Court in T. Arivandandam v. T.V. Satyapal, AIR 1977 SC 2421, commenting on the exercise of the power of the Court under Order VII, Rule 11 of the Code. The Apex Court observed that bogus litigation should be shot down at the earlier stage. Para 6 of the said judgment reads as follows: