PAWAN KUMAR Vs. JASWANT RAI

JUDGEMENT

(1.) The instant revision petition has been filed to impugn the order dtd. 27/5/2022 (Annexure P-7) vide which the Trial Court dismissed the petitioner's application under Order 2 Rule 2 read with Order 7 Rule 11 and Sec. 151 of the Code of Civil Procedure, 1908 (for short, 'the Code').

(2.) Learned counsel appearing for the petitioner submits that the impugned order suffers from patent illegality and thus deserves to be set aside. He submits that the Trial Court failed to appreciate that the respondent had relinquished his right in the suit property in favour of the petitioner way back in the year 1989, in lieu of which he had been given another property vide family settlement dtd. 29/8/1989.

(3.) Learned counsel submits that ever since the aforementioned family settlement, the petitioner had been enjoying the possession of the suit property, however, out of the blue, the respondent resiled and challenged the family settlement in the suit in question. He further argued that respondent No.1-Jaswant Rai was a party in an earlier suit which was allowed by the Trial Court at Tohana vide judgment and decree dtd. 5/5/2015 qua which an appeal was pending before the Lower Appellate Court. However, respondent No.1-Jaswant Rai had neither filed any counter claim in the suit nor filed any cross-objections in the appeal before the Lower Appellate Court. Therefore, respondent No.1-Jaswant Rai was clearly barred from filing the suit in question in view of the provisions of Order 2 Rule 2 of the Code. He prayed that in the above circumstances, the plaint of respondent No.1 be rejected, being barred under law. He further submitted that respondent No.1 had earlier instituted a civil suit which was dismissed by the Trial Court on the ground of it being premature as the judgment and decree dtd. 5/5/2015 had not attained finality. Therefore, it was urged by the learned counsel that even the suit in question was liable to be dismissed on the same ground, as the Regular Second Appeal preferred before this Court against the judgment and decree dtd. 5/5/2015 was still pending adjudication. Learned counsel vehemently urged that in the earlier suit as well, respondent No.1 could have sued for the relief prayed for in the instant suit, as the cause of action in both was the same, however, since he had failed to do so, he had relinquished his claim qua the suit property. He, thus, prayed that on this ground also the suit was liable to be dismissed being not maintainable.