BALRAJ SINGH Vs. BANWARI LAL

JUDGEMENT

(1.) The present revision petition has been filed under Article 227 of the Constitution of India with a prayer for setting aside the order dated 19.03.2021 which has been passed by the learned Civil Judge (Junior Division), Hisar vide which an application filed by the petitioners/defendants under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure for rejection of the plaint has been dismissed.

(2.) A brief factual metric of the case would be necessary before considering the submissions made by the learned counsel for the petitioners. The respondent/plaintiff (Banwari Lal) filed a suit for declaration to the effect that plaintiff is sole and exclusive owner in possession with respect to the property given in the head note of the plaint which has been annexed with the present petition as Annexure P-l. It has been stated in the plaint that the plaintiff had filed a suit for injunction against Balraj Singh and others because they had tried to forcibly take the possession and the Court had ordered to file a suit for the partition of the land in question because the land of the plaintiff and Balraj Singh and others fall under the same khasra numbers. After filing of the civil suit by the respondent No.1, an application was filed by the present petitioners who were defendants in the civil suit for rejection of plaint on the ground that plaintiff had earlier filed a Civil Suit No. 365-C dated 18.08.2008 titled as Banwari Lal Versus Balraj Singh and others seeking injunction restraining the defendants not to interfere in his alleged actual and physical possession over the land in question by claiming himself to be the sole owner in possession of the same and that in the said civil suit similar plea was taken that the suit land exclusively belongs to him but such plea was negated by the Civil Court vide judgment and decree dated 31.07.2014 by recording a finding that the plaintiff had failed to prove his exclusive possession over the land in question which along with the other land is a joint property of the parties and that the said judgment has attained finality. A reply to the aforesaid application was filed in which it was stated that the said application was utterly false, vague and frivolous and has been filed only to delay the proceeding of the case and that the question of the ownership of the property in question was not disputed in the earlier suit but it was only possession which was in dispute and, therefore, the present suit is not barred by any law. This application has been now decided by the learned Civil Judge (Junior Division), Hisar by passing the impugned order 19.03.2021 whereby the said application has been dismissed.

(3.) The learned Civil Judge (Junior Division), Hisar dismissed the application by considering the fact that the application under Order 7 Rule 11CPC cannot be allowed on the ground that the present suit was barred by the principle of res-judicata because the earlier suit was a suit for injunction whereas the present suit is a suit for declaration and, therefore, the principle of res-judicata will not operate in present suit. Furthermore, in the earlier civil suit for injunction the learned Civil Court has nowhere given any finding to the effect that the plaintiff had no title over the property in dispute and rather gave a finding to the effect that the plaintiff and the defendants are co-owners in the property in dispute and, therefore, it will not preclude the plaintiff to seek specific declaration of ownership over the property in dispute. The learned Civil Court referred to the judgment of the Hon'ble Supreme Court in 'P.V. Guru Raj Reddy Rep. by GPA Laxmi Narayan Reddy and another Versus P.Neeradha Reddy and others' [2015(8) SCC 331)] wherein it was observed that at the stage of exercise of power under Order 7 Rule 11 CPC, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law that the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial. The learned Civil Judge further observed that since the learned Civil Court did not dismiss the previous suit on the ground that plaintiff was not co-owner of the property in dispute but on the ground that he has failed to prove his exclusive possession over the suit land, the present suit is not barred by the law of res-judicata and moreover, the matter directly or substantially in issue in the previous suit and in the present suit can be determined only after perusal of pleadings of both the parties and in the present suit, the defendant is yet to file his written statement and, therefore, the present application seeking the dismissal of the suit on the ground of res-judicata deserves dismissal on the ground of filing at immature stage.