//
you're reading...
legal issues

At the cost of repetition, it has to be observed that a plaint cannot be rejected only on the basis of a defence available to a defendant, and the question as to whether any averment in a plaint constitutes res judicata or is the basis of any misinterpretation of a judgment has to be considered at the hearing of the suit. Not at the threshold. Though the learned counsel for the parties have addressed arguments touching partly on the merits of the matters, this Court has chosen not to refer to them, lest, any view expressed thereon would have its shadow or impact upon the adjudication of the matter by the trial Court.

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY 
C.R.P. Nos.525 of 2011 and bt 

07-07-2011 

V. Narasimha Reddy and others 

Sara Abdul Gafoor and others 

Counsel for the petitioners : Sri K. Rama Krishna Reddy,learned Senior Counsel

Counsel for respondents : Sri Sunil B. Ganu

:COMMON ORDER: 

Respondents 1 to 17 herein (for short 'the respondents') filed O.S.No.354 of
2009 in the Court of II Additional Chief Judge, City Civil Court, Hyderabad,
against respondents 18 to 70 and the petitioners herein (defendants 3 and 27),
for the relief of declaration to the effect that they are the owners and
possessors of Acs.7.28 guntas of land, in Sy.No.129/52, and for perpetual
injunction. The petitioners filed I.A.No.2461 and 2462 of 2009, individually,
with a prayer to reject the plaint under Rule 11 of Order VII C.P.C. Through
separate, but similar orders, the trial Court dismissed the same. Hence, these
revisions, under Article 227 of the Constitution of India.

The petitioners contend that the respondents have been litigating for the suit
schedule property in one form or the other for the past several decades, and
that even after they lost in every forum, they filed the present suit to open
another round of vexatious litigation. It is also their case that the suit is
barred by res judicata, and by limitation. They contend that the trial Court
did not appreciate the matter from the correct perspective and that the plaint
is liable to be rejected. Reference is made to various proceedings, that have
ensued on earlier occasions.
Sri K. Rama Krishna Reddy, learned Senior Counsel for the petitioners submits
that the question as to ownership and identity of the land and possession over
it were decided by this Court, way back in the year 1976, in CCCA No.14 of 1972,
and that in turn was followed by several proceedings, such as, LGC Nos.29 of
1992 and 15 of 1996 on the file of the Special Court under A.P. Land Grabbing
(Prohibition) Act, Hyderabad, and that the trial Court ought to have rejected
the plaint, as being without cause of action or as the basis for another round
of vexatious litigation. He further pleads that the allegation of fraud made by
the respondents, vis--vis the judgment in CCCA No.14 of 1972 was dealt with by
the Special Court in LGC Nos.29 of 1992 and 15 of 1996, and the findings
recorded by the Special Court were affirmed by this Court in its judgment in
W.P.No.9931 of 2006. 

Learned counsel submits that the suit is barred by limitation and that the trial
Court was under obligation to examine that question, closely, as required under
Section 3 of the Limitation Act (for short 'the Act'). He contends that, when a
party does not have any independent right, a casual observation made by a Court
in an earlier round of litigation cannot constitute the basis for institution of
proceedings. He has placed reliance upon certain judgments rendered by the
Hon'ble Supreme Court. 

Sri Sunil B. Ganu, learned counsel for the respondents, on the other hand,
submits that the plea of res judicata raised by the petitioners can, at the most
be a defence in the suit and cannot be a ground for rejection of a plaint. He
contends that the respondents, no doubt, filed LGC Nos.29 of 1992 and 15 of
1996,
to enforce their rights, but the Special Court refused to exercise the
jurisdiction, and this Court held that the Special Court does not have
jurisdiction to entertain the matters of that nature. He submits that the
petitioners failed to demonstrate as to how the suit was barred by limitation,
or to bring it within the other facets of Rule 11 of Order VII C.P.C. He too
relied upon certain precedents.

The Code of Civil Procedure prescribes a detailed and comprehensive procedure,
that would govern in various stages of civil proceedings, commencing from the
institution of proceedings and culminating in execution of the decree. The
proceedings in a civil suit commence with the presentation of a plaint. Rule 2
of Order VI C.P.C indicates as to what should be the basic contents of a
pleading, meaning thereby, the plaint and written-statement. They are required
to contain only "a statement in a concise form of the material facts on which
the party pleading relies for his claim or defence, as the case may be". It
specifically prohibits the incorporation of evidence in the pleadings. Once a
Court of a competent jurisdiction receives the plaint and assigns a number to it
after due verification, the defendant has two options: The first is to contest
the suit by filing a written-statement, and the second is to file an application
under Order VII Rule 11, to reject a plaint.
In certain cases, the Court can reject the plaint on its own accord,
if it finds that any grounds mentioned in Rule 11 of Order VII exist,
vis--vis the case. For instance, a suit can be said to have been barred,
either when a specific law takes away the jurisdiction of the civil Court, vis-
-vis the subject-matter, or when it is presented, after the expiry of the
period of limitation. Though the plea of limitation can be raised by a
defendant in a suit, the Court is also placed under obligation under Section 3
of the Act, to verify, whether the suit is presented within limitation; and to
reject the plaint, if it is found to have been presented after the expiry of the
period prescribed under the relevant provisions of law.

Whether an exercise pertaining to rejection of a plaint is undertaken by the
Court on its own accord, or at the instance of the defendants, the verification
shall be only with reference to the contents of the plaint. In other words, it
is only when the contents of the plaint on their face value and without the aid
of any external material disclose that the suit is barred by any law or by
limitation, or if it does not disclose any cause of action, that it can be
rejected. Reference in this context may be made to the judgment of the Supreme
Court, in POPAT AND KOTECHA PROPERTY v. STATE BANK OF INDIA STAFF ASSOCIATION1. 
It was held in paragraph 19, as under:

"There cannot be any compartmentalization, dissection, segregation and
inversions of the language of various paragraphs in the plaint. If such a
course is adopted it would run counter to the cardinal canon of interpretation
according to which a pleading has to be read as a whole to ascertain its true
import. It is not permissible to cull out a sentence or a passage and to read
it out of the context in isolation. Although it is the substance and not merely
the form that has to be looked into, the pleading has to be construed as it
stands without addition or subtraction of words or change of its apparent
grammatical sense. The intention of the party concerned is to be gathered
primarily from the tenor and terms of his pleadings taken as a whole. At the
same time it should be borne in mind that no pedantic approach should be adopted
to defeat justice on hair-splitting technicalities".

The same view was taken by the Hon'ble Supreme Court in many judgments earlier 
and subsequent thereto.

The fact that a different version from what is stated in the plaint is possible,
and the same would render the suit not maintainable; cannot be a ground to
reject the plaint. At the most such contents can constitute the basis for
framing of independent issues. In a given case, the defendant can request the
Court to decide such precise question as preliminary issue, and decide the same
at the threshold, without entering the arena of merits. Since rejection of a
plaint would entail in virtual denial of entry to a citizen into a civil Court,
the power under Rule 11 of Order VII is required to be exercised carefully and
cautiously.
In the instant case, the basis on which one of the petitioners wanted the trial
Court to reject the plaint was that the suit was barred by res judicata. It
appears that the plea of limitation was also argued in the course of hearing of
the I.As. The plea is contained in paragraphs 2, 3 and 4 of the affidavit filed
in support of the I.A. It is necessary to reproduce the same, to understand the
purport thereof.

"2. I submit that the respondents/plaintiffs had filed the above suit for
declaration of their alleged title and consequently for perpetual injunction of
suit schedule property. The allegations made in the plaint of plaintiffs is
suppression of facts and equally the subject matter was already adjudicated in
several former proceedings. Thus the issue involved in the present suit was the
adjudicated issue of earlier proceedings, therefore the present suit of the
plaintiffs are bad under Law like resjudicata, limitation, etc. In view of such
bar of suit under Law the same is liable to be rejected on the face of it to
avoid frivolous, speculative and unwarned litigation.
3. I submit that the respondent/plaintiff No.16 had filed earlier a claim
petition under Order-21, Rule 97 of C.P.C. in E.P.No.20 of 1991 on the file of
the II Additional Chief Judge, City Civil Court, Hyderabad which was claiming
the present suit schedule property. Of course the said claim petition of
respondent/plaintiff No.16 was also dismissed on merits. The claim of
respondents/plaintiffs was not only subject matter of E.P.No.20 of 1991 but also
adjudicated in O.S.No.29 of 1965 on the file of the Additional Chief Judge, City
Civil Court, Hyderabad, C.C.C.A.No.14 of 1972 on the file of the Hon'ble High
Court of Andhra Pradesh, L.G.C.NO.46 of 1989 and L.G.C.No.29 of 1992 and 
L.G.C.NO.15 of 1996 before the Special Court under the Act. Thus the subject
matter of present suit was substantially in issue with the former proceedings,
therefore the present suit is squarely covered under the policy of resjudicata.
 4. I submit that in view of judgements rendered in the above mentioned
former suits, LGCs, CCCAs and E.A.No.14 of 1995 in E.P.No.20 of 1991, the 
institution of present suit is barred under Law. It may not be out of place to
add that either the plaintiffs or their alleged predecessors in title were the
parties to the above said concluded proceedings. As such the plaintiffs are
bound by the proceedings participated by the predecessors in title".

In another I.A., the plea as to limitation was urged in a faint and half-hearted
manner. It hardly needs any mention that a plea of res judicata is a mixed
question of fact and law. If it is proved as a matter of fact, meaning thereby,
that it is established that as between the same parties the same issue was
decided on earlier occasion by a competent Court of law, a principle of law gets
attracted, which has the effect of barring the subsequent suit.
A defendant who takes the plea of res judicata has to plead the particulars of
the earlier proceedings, indicate the purport thereof, and satisfy the Court
that the issue involved in the suit filed afterwards, was decided earlier, as
between the same parties by a competent Court of law. By its very nature, this
exercise needs oral and documentary evidence. 
Parliament has advisedly not treated the res judicata as a basis or ground for
rejection of a plaint. In KAMALA AND OTHERS v. K.T. ESHWARA SA AND OTHERS2, the 
Hon'ble Supreme Court held that the principle of res judicata involves mixed
question of fact and law, and that it cannot constitute the basis for rejection
of a plaint. It was also suggested that, it can, at the most, be a valid
defence. In C.R.P.No.2494 of 2010, this Court held in para 4 as under:

"Even where a plea of res judicata is available to a defendant in a suit, he
cannot seek rejection of the plaint. The reason is that the said ground does
not fit into any of the clauses contained in Rule 11 of Order VII C.P.C.
Rejection of plaint is a very drastic step resulting in the very closure of
doors of a Court to the plaintiff in the suit concerned. Refusal of
adjudication on merits by a Court warrants a very strong circumstance covered by
Rule 11 of Order VII C.P.C. The Parliament was very cautious in stipulating the
grounds on which a plaint can be rejected".

Therefore, the request of the petitioners to reject the plaint on the ground
that the suit was barred by res judicata cannot be acceded to.
Arguments were advanced on the question of limitation also. As observed earlier,
a plaint can be rejected on the ground that the claim is barred by limitation if
only the contents of the plaint lead to that conclusion.The suit was filed for
the relief of declaration. The respondents gave a detailed account of the nature
of reliefs claimed by them from time to time, and the result of various
proceedings. They instituted LGCs to work out their remedies. However they were
rejected by the Special Court. W.P.No.9931 of 2006 filed by the respondents was
dismissed upholding the view taken by the Special Court. In addition to that the
Division Bench of this Court left it open to the petitioners to pursue their
remedies 
in accordance with law. To be precise, the Court said,

"It is needless to mention that the remedies, if any can be availed by any
of the parties concerned or aggrieved, to seek appropriate leave before the
appropriate forum on its own merits, independently, and in accordance with law".

This was on 22-05-2007. The plaint was presented in June, 2009. In between,
review petitions were filed by various parties and they came to be disposed of
on 22-02-2008.

The learned Senior Counsel appearing for the petitioners submits that the
observations extracted above would be an obiter and that they cannot be treated
as a source of right to file a suit. Placing reliance upon the judgment of the
Supreme Court in DADU DAYALU MAHASABHA JAIPUR (TRUST), v. MAHANT RAM NIWAS AND 
ANOTHER3, he submits that the judgment rendered by a Court cannot be interpreted 
as though it is a statute, and if an individual does not have any right to
institute proceedings, the observations made in an earlier round of litigation
cannot constitute the basis. Even if this contention is accepted, the merits
thereof can be analyzed only in the course of trial. A plaint cannot be
rejected on the basis of submissions of this nature. At the cost of repetition,
it has to be observed that a plaint cannot be rejected only on the basis of a
defence available to a defendant, and the question as to whether any averment in
a plaint constitutes res judicata or is the basis of any misinterpretation of a
judgment has to be considered at the hearing of the suit. Not at the threshold.
Though the learned counsel for the parties have addressed arguments touching
partly on the merits of the matters, this Court has chosen not to refer to them,
lest, any view expressed thereon would have its shadow or impact upon the
adjudication of the matter by the trial Court.

The revisions are accordingly dismissed. The trial Court shall however frame
separate issues on the various questions that may be raised by the petitioners,
in their written-statements.
There shall be no order as to costs.?1 (2005) 7 SCC 510 
2 2008 (4) ALD 24 (SC) 
3 (2008) 11 SCC 753 

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,887,325 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers
Follow advocatemmmohan on WordPress.com
%d bloggers like this: