RAMBALLABH @ RATAL LAL Vs. MANDIR SHRI BHERUJI MAHARAJ

JUDGEMENT

(1.) THE present appeal filed under Order XLIII Rule 1(u) of CPC, is directed against the order dated 7.7.10 passed by the District & Sessions Judge, Ajmer (hereinafter referred to as 'the appellate court') in Civil Regular Appeal 40/10, whereby the appellate court has allowed the appeal filed by the respondent -plaintiff and set aside the decree dated 10.2.10 passed by the Addl. Civil Judge (S.D.), No. 3, Ajmer (hereinafter referred to as 'the trial court') in Civil Suit No. 42/09 and further remanded the case to the trial court for deciding the suit afresh. It is submitted by the learned counsel Mr. Bipin Gupta for the appellants -defendants that the respondent -plaintiff had filed the suit abusing the process of law, inasmuch as earlier the Pujari Shri Bhanwar Lal had filed the suit in his individual capacity against the present appellants in respect of the same property in question and he having filed the said suit and also in the appeals, the present suit was filed by him in the name of Mandir showing himself to be the Pujari. Placing heavy reliance on the decision of the Apex Court in the case of M. Nagabhushana Vs. State of Karnataka & Ors. : AIR 2011 SC 1113 as also the decision of this court in case of Temple of Thakur Shri Mathuradassji, Chhota Bhandar Vs. Shri Kanhaiyalal & Ors. : 2008 (2) CDR 1298 (Raj.), the learned counsel has submitted that the trial court had rightly dismissed the suit of the respondent -plaintiff being barred by res -judicata and having been filed abusing the process of law. Mr. Gupta expressing his apprehension submitted that the appellate court in the impugned order had made certain observations, which might come in the way of the appellants in filing the application for deciding the suit on preliminary issue, and that the appellant will have to unnecessarily undergo a long drawn trial of a vexatious suit.

(2.) HOWEVER , the learned counsel Mr. Deepak Pareek for the respondent -plaintiff has submitted that the trial court had committed an error in rejecting the plaint under Order VII Rule 11(d) of CPC relying upon the documents other than the plaint and, therefore, the appellate court had rightly set aside the said order and remanded the case to the trial court for deciding it afresh. He has relied upon the decision of the Apex Court in case of Kamala & Ors. Vs. K.T. Eshwarasa & Ors. : (2008) 12 SCC 661, in support of his submission.

(3.) THERE cannot be any disagreement with the proposition of law laid down by the Apex Court in case of N. Nagabhushana Vs. State of Karnataka & Ors. (supra) relied upon by the learned counsel for the appellant that any proceeding which has been initiated in breach of principles of res -judicata is prima facie a proceeding in abuse of process of court. However, in the opinion of the court, such finding the trial court must arrive at from the averments made in the plaint alone, for the purpose of rejecting the plaint under Order VII Rule 11(d) of CPC. The submission made by the learned counsel for the appellants that the suit should be dismissed under Section 151 of CPC by the trial court exercising its inherent powers, when it is found by the trial court that the suit was filed abusing the process of law, also cannot be accepted, for the simple reason that as per the settled legal position, when there are specific provisions in the Code itself for the dismissal of the suit, the inherent powers under Section 151 of CPC could not be exercised. In that view of the matter the court does not find any substance in the present appeal.