Sunday, 28 January 2018

Whether court can consider plea of res judicata raised in written statement while deciding application for rejection of plaint?

It is settled law that while deciding an application for rejection of plaint under clauses (a) and (d) of Order VII Rule 11 of the Code, the Court shall confine itself to the averments made in the plaint and the documents annexed or referred to the plaint and the averments made in the plaint are to be treated as true. It is also settled law that at the stage of deciding an application under Order VII Rule 11 of the Code, the averments in the plaint be read as a whole and the stand of the defendant in his written statement or in the application for rejection of the plaint is wholly immaterial. 
He further cited the decision in the case of Mahamaya Paul vs. Dipak Kumar Mukherjee & Ors. reported in MANU/WB/0881/2012 : (2013) 1 ICC 610where the Division Bench of this Court held that it is well settled that a point of res judicata is a mixed question of fact and law and the plaint filed in a suit cannot be rejected on the plea of being barred by principle of res judicata upon invocation of the provision contained under Order VII Rule 11 of the Code. 

IN THE HIGH COURT OF CALCUTTA

C.O. 233 of 2017

Decided On: 17.04.2017

 Premal Sen and Ors. Vs. Ranjit Sen and Ors.

Hon'ble Judges/Coram:
Ashis Kumar Chakraborty, J.



1. This revisional application under Article 227 of the Constitution of India, is directed against the order dated December 7, 2016 passed by the learned Civil Judge (Junior Division), 4th Court, Alipore in Title Suit No. 134 of 2015. By the impugned order, the learned Court below rejected the application filed by the petitioners, the defendant Nos. 1 and 2 in the suit, under Order VII Rule 11 of the Code of Civil Procedure, 1908 (in short "the Code") praying for, rejection of the plaint on the grounds mentioned hereinafter.

2. The opposite party No. 1 filed the above suit, before the learned Court below, claiming declarations that he himself, the petitioners and the proforma opposite parties (the defendant Nos. 3 and 4 in the suit) are the co-sharers of the suit property and that he has the right to enjoy the entire suit property without any interference whatsoever by the petitioners and the proforma opposite parties. He has also claimed consequential reliefs for permanent injunction and mandatory injunction. In the schedule to the plaint, the suit property has been described as the plot of land measuring 23 cottahs, 8 chittacks, 18 square feet situate at Premises No. 10/1, Lala Lajpat Rai Sarani (previously known as 10/1, Elgin Road), Kolkata; the front portion consisting of a three storied building with a courtyard and the rare portion consisting of a three storied building together with a lawn and other one storied building. In the suit, the opposite party No. 1 has also filed an injunction application under Order XXXIX Rules (1) and (2) of the Code, which is pending before the learned Court below without any interim order. The petitioners filed an application under Order VII Rule 11 of the Code praying for, rejection of the plaint filed in the suit on the following grounds.

"(a) The suit appears from the statement in the plaint to be barred by law. The issues raised in the suit including the reliefs claimed therein are barred by res-judicata and/or analogous thereto;

(b) The suit has been filed in gross abuse of the process of Court."

3. In their application, the petitioners alleged that the suit property described in the plaint measuring more or less 23 cottahs, 8 chittacks of land with the buildings of Premises No. 10/1 Lala Lajpat Roy Sarani, Kolkata was originally owned by Radhika Ranjan Sen, upon whose death the same devolved upon his two sons Kalyan Sen and Milan Sen, who on May 13, 1998 filed a Terms of Settlement in appeal, being FA 39 of 1997 arising out of a partition suit, being T.S. No. 60 of 1987 and based on which a compromise decree dated May 14, 1998 (hereinafter referred to as "the said compromise decree") was passed by the Division Bench of this Court for partition of the suit property by metes and bounds. According to the petitioners, as per the said compromise decree the front portion of the suit property comprising 10 cottahs 3 chittacks and 15 square feet of land with the part of a three storied building with open courtyard described as "Lot-B property" was allotted to Milan Sen and the rear portion, comprising 13 cottahs, 5 chittacks and 3 square feet of land with part of the three storied building with lawn and other one storey permanent/temporary structure, described as "Lot-A property" was allotted to Kalyan Sen. They further alleged that in terms of the said compromise decree, Kalyan Sen and Milan Sen, during their life time obtained their names mutated in respect of the said Lot-B property and Lot-A property, respectively and the front portion of the suit property forming part of Lot-B property allotted to Milan Sen has since been renumbered as 10/1A, Lala Lajpat Rai Sarani, Kolkata and the Lot-A property retained the original No. 10/1 Lala Lajpat Rai Sarani. Therefore, the opposite party No. 1 and proforma opposite parties, the defendant Nos. 3 and 4, as the sons and daughter of the said Kalyan Sen, are the owners of premises No. 10/1 Lala Lajpat Rai Sarani and the petitioners, as the sons of Milan Sen, since deceased are the owners of Lot-A property of the said compromise decree. Along with the plaint filed in the suit, the opposite party No. 1 has disclosed the said terms of settlement filed by the said Kalyan Sen and Milan Sen, resulting in the said compromise decree. Relying upon the said compromise decree and the mutation of the Lot-A property and Lot-B property described in the said compromise decree in favour of Kalyan Sen and Milan Sen, respectively and renumbering of the said Lot-B property, as 10/1/A, Lala Lajpat Rai Sarani, the petitioners urged the aforementioned grounds for rejection of the plaint filed in the suit. With regard to the first ground, the petitioners contended before the learned Court below that in view of the said compromise decree the present suit filed by the opposite party No. 1 was hit by the principle of res-judicata. In support of the second ground pressed for rejection of plaint, the petitioners contended that the opposite party No. 1, in his plaint suppressed the factum of mutation of the names of Kalyan Sen and Milan Sen, in respect of the Lot-A property and Lot-B property of the said compromise decree, respectively and renumbering of the said Lot B property as Premises No. 10/1/A, Lal Lajpat Rai Sarani presently occupied by them and certain other facts. The opposite party No. 1, the plaintiff contested the said application. By the order dated December 7, 2016 the learned Court below, however, rejected the application filed by the petitioners for rejection of the plaint by holding that in view of the decision of the Supreme Court in the case of P.V. Guru Raj Reddy vs. P. Neeradha Reddy reported in MANU/SC/0132/2015 : (2015) 8 SCC 331, the plea of res-judicata being question of fact and law cannot be invoked as a ground for rejection of the plaint under Order VII Rule 11 of the Code. The learned Court below also repelled the contention of the petitioners to reject the plaint on the aforementioned second ground. As stated above, it is the said order dated December 7, 2016 which is the subject matter of challenge in the present revisional application.

4. Assailing the impugned order passed by the learned Court below, Mr. Jaydeep Kar, learned Senior Advocate appearing for the petitioners contended that the opposite party No. 1, in his plaint has disclosed a copy the said terms of settlement filed by the Milan Sen and Kalyan Sen, both since deceased in the said appeal F.A. No. 39 of 1997 and in paragraph 13 of the plaint he has also admitted the factum of said terms of settlement and the said compromise decree. It was contended that it is well settled law that the plaint would mean not only the pleadings but also the documents annexed to or relied upon and, therefore, in this case when the opposite party No. 1 referred to and disclosed the said terms of settlement entered into between Milan Sen and Kalyan Sen, resulting in passing of the said compromise decree, the suit is barred by law. In support of the contention that the document referred to or disclosed in a plaint should be treated as a part of the plaint, Mr. Kar relied upon the decision of the Supreme Court in the case of Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust reported in MANU/SC/0515/2012 : (2012) 8 SCC 706, a decision of the learned Single Judge of the Bombay High Court in the case of SNP Shipping Services Pvt. Ltd. & Ors. vs. World Tanker Carrier Corporation & Anr. reported in MANU/MH/0088/2000 : AIR 2000 Bom 34, a decision of a learned Single Judge of the Delhi High Court in the case of Maharaja Jagat Singh vs. Lt. Col. Bhawani Singh & Ors. reported in MANU/DE/0003/1996 : AIR 1996 Del 14 and the decision of a learned Single Judge of the Madras High Court in the case of Nithayya Thevar vs. Subramaniam Ambalakarar reported in MANU/TN/0430/1969 : (1970) 1 MLJ 400. It was urged that the said terms of settlement referred to and disclosed in the plaint, forming part of the said compromise decree was final and binding between the said Kalyan Sen and Milan Sen, as well their respective heirs and legal representatives and the present suit filed by the opposite party No. 1 as the son of Kalyan Sen, since deceased against the proforma opposite parties, his brother and sister and the petitioners, the sons Milan Sen, since deceased is hit by the principle of res judicata. Mr. Kar submitted in spite of the suit being hit by the principle of res-judicata the learned Court below committed an error of law in dismissing the petitioners' application for rejection of the plaint. It was further argued that in any event, the said compromise decree was accepted and acted upon by both Milan Sen and Kalyan Sen and during their lifetime they did not deny the adjustment or satisfaction that was arrived at on the basis of the said compromise decree. According to the petitioners, in the present suit the opposite party No. 1 has not challenged the said compromise decree entered into by his deceased father and in view of the settled law that a consent decree acts as an estoppel, the suit filed by the opposite party No. 1 is barred by law. In this regard, the petitioners relied on the decision of the Supreme Court in the case of Pushpa Devi Bhagat vs. Rajinder Singh & Ors. reported in MANU/SC/3016/2006 : (2006) 5 SCC 566. Relying on the decision of a learned Single Judge of this Court in the case of Salim Makkar vs. N.K. Pansari and Ors. reported in MANU/WB/0350/2001 : AIR 2001 Cal 162 the petitioners submitted that since the opposite party No. 1 is claiming his interest in the suit property through his father Kalyan Sen, he himself and the proforma opposite parties are bound by the said compromise decree and in view of the provisions contained in Order XXIII Rule 3A of the Code, the present suit is barred by law. The petitioners also cited a Single Bench decision of this Court in the case of Securities and Exchange Board of India vs. Satyaranjan Baidya reported in (2013) 2 Cal LJ 312. According to the petitioners, a reading of the plaint gives a clear idea that the case made out by the opposite party No. 1 in his plaint is manifestly vexatious and meritless, the suit has been filed in gross abuse process of the Court and it is required to be nipped in the bud. In support of such contention, the petitioners relied on the decisions of the Supreme Court in the cases of T. Arivandandam vs. T.V. Satyapal & Anr. reported in MANU/SC/0034/1977 : (1977) 4 SCC 467 and I.T.C. Ltd. vs. Debts Recovery Appellate Tribunal and Ors. reported in MANU/SC/0968/1998 : (1998) 2 SCC 70 and Sopan Sukhdeo Sable & Ors. vs. Assistant Charity Commissioner reported in MANU/SC/0071/2004 : (2004) 3 SCC 137. It was next contended that the opposite party No. 1 has filed the suit by suppressing the material facts that the both Kalyan Sen and Milan Sen during their lifetime acted upon the said compromise decree and obtained their respective names being mutated in respect of the lot-A property and lot-B property of the original Premises No. 10/1, Lala Lajpat Rai Sarani, Kolkata. Citing the decision of the Supreme Court in the case of Ramsukh vs. Dinesh Aggarwal reported in MANU/SC/1667/2009 : (2009) 10 SCC 541 it was submitted that the factum of passing of the said compromise decree and the mutation of the name of Kalyan Sen, in respect of the said Lot-A property are all material facts and by suppressing such material facts, the opposite party No. 1 has played fraud not only on the petitioners, but also on the Court and urging this ground the petitioners prayed for rejection of the plaint. In this regard, the petitioners cited the decisions of the Supreme Court in the cases of S.P. Chengalvaraya Naidu vs. Jagannath reported in MANU/SC/0192/1994 : (1994) 1 SCC 1, A.P. Papayya Sastry & Ors. vs. Government of A.P. reported in MANU/SC/1214/2007 : (2007) 4 SCC 221 and a Single Bench decision of the Patna High Court in the case of Bhagirath Prasad Singh vs. Ram Narayan Rai reported in MANU/BH/1668/2010 : AIR 2010 Pat 189. On these grounds the petitioners submitted that the impugned order passed by the learned Court below is patently erroneous and, as such, this Court would set aside the impugned order and reject the plaint filed by the opposite party in the suit.

5. On the other hand, Mr. Kashi Nath De, learned advocate appearing for the opposite party No. 1, the plaintiff submitted at the very outset that the impugned order passed by the learned Court below suffers from no infirmity and there is no merit in this revisional application. According to him, it is well settled law that a compromise/consent decree is not a decision by the Court and consequently, the same does not operate as res judicata, at the highest a consent decree might create an estoppel by conduct between the parties. In support of such contention, Mr. Dey relied upon the decision of the Supreme Court in the case of Pulavarthi Venkata Subba Rao vs. Valluri Jagannadha Rao reported in MANU/SC/0018/1963 : AIR 1967 SC 591. He further cited the decision in the case of Mahamaya Paul vs. Dipak Kumar Mukherjee & Ors. reported in MANU/WB/0881/2012 : (2013) 1 ICC 610, where the Division Bench of this Court held that it is well settled that a point of res judicata is a mixed question of fact and law and the plaint filed in a suit cannot be rejected on the plea of being barred by principle of res judicata upon invocation of the provision contained under Order VII Rule 11 of the Code. It was submitted that in paragraph 13 of the plaint the factum of the terms of settlement entered into between Milan Sen and Kalyan Sen, as well as the order/decree passed on the basis of the said terms of settlement have been clearly mentioned.

6. It was further submitted that in the plaint filed in the suit, it is the case of the opposite party No. 1 that the Premises No. 10/1, Elgin Road was the joint property of late Kalyan Sen, the predecessor-in-interest of himself and the defendant Nos. 3 and 4 (the proforma opposite parties in this application) and late Milan Sen, the predecessor-in-interest of the petitioners. In paragraph 13 of the plaint, the opposite party No. 1 has not only referred to the terms of settlement in respect of the suit property filed by the said Kalyan Sen and Milan Sen resulting in the said compromise decree, he also disclosed a copy thereof, along with the plaint. It was argued that from a reading of the averments made in paragraph 13 of the plaint, it is ex-facie clear that the opposite party No. 1 has not only made out the circumstances, how the parties to the said compromise decree did not act upon the terms thereof and he has further asserted that the parties to the suit are enjoying the suit property as an undivided property as before, but the petitioners are trying to develop a portion of the suit property and also put up tin fencing, obstructing his egress and ingress to and from the suit property and also disturbing him in parking his cars in the suit property, still existing as a joint property without any partition by metes and bounds. It was argued that there cannot be any dispute with regard to the settled law that a document referred to or relied upon or annexed to the plaint should be treated as part of the plaint. It was submitted that in view of the averments made in paragraph 13 of the plaint the opposite party No. 1 does not dispute the ratio of the decision of the Supreme Court in the case Church of Christ Charitable Trust and Educational Charitable Society (supra), or any of the Single Bench decisions of the Bombay High Court in the case of SNP Shipping Services Pvt. Ltd. (supra), the Delhi High Court in the case of Maharaja Jagat Singh (supra) and Madras High Court in the case of Nithayya Thevar (supra), cited by the petitioners. According to the opposite party No. 1, when his case in the plaint is that the terms of settlement between Kalyan Sen and Milan Sen and the said compromise decree was not acted upon, the filing of the present suit is not barred by any law and the decision of the Supreme Court in the case of Pushpa Devi Bhagat (supra) and the Single Bench decision of this Court in the case of Salim Makkar (supra) cited by the petitioners have no application. According to Mr. De, the law is well settled that for deciding an application under Order VII Rule 11 of the Code all the averments made in the plaint are to be treated as true. He also relied on the decision of the Supreme Court in the case of Sopal Sukhdeo Sable & Ors (supra) cited by the petitioners where it was held that for deciding an application under Order VII Rule 11 of the Code, the averments in the plaint as a whole has to be considered and there cannot be any compartmentalisation, dissection, segregation and inversion of the language of various paragraphs in the plaint. It was urged that applying the said principle in the present case, the averments made by the opposite party No. 1, in paragraph 13 of the plaint cannot be construed as creation of an illusory cause of action or the suit filed by the opposite party can be held be vexatious or meritless in the sense of not disclosing a clear right to sue. Therefore, it was submitted that the decisions of the Supreme Court in the cases of T. Arivandandam (supra), I.T.C. Ltd. (supra), Ram Sukh (supra) have no application in this case.

7. According to the opposite party No. 1, in view of the averments made in paragraph 13 of the plaint and disclosure of the said terms of settlement between Kalyan Sen and Milan Sen, the argument advanced on behalf of the petitioners that the suit has been filed by suppressing any material fact is devoid of any merit and the decisions of the Supreme Court in the cases of S.P. Chengalvaraya Naidu (supra) and A.V. Papayya Sastry (supra) and the Single Bench decision of the Patna High Court in the case of Bhagirath Prasad Singh (supra) do not have any bearing in this case. Citing a Single Bench decision of the Andhra Pradesh High Court in the case of Vadla Narasim Laiah vs. Vadha Kondaiah reported in MANU/AP/0561/2010 : AIR 2011 AP 14 it was submitted that in any event, the plaint filed in a suit cannot be summarily rejected under Order VII Rule 11 of the Code, on the ground of suppression of fact which is to be decided at the trial of the suit. Relying on the Division Bench decision of this Court in the case of Mahamaya Paul (supra), the opposite party No. 1 contended that since no ground was urged before the learned Court for rejection of the plaint that the suit was barred by the provision of Order XXIII Rule 3A of the Code, the petitioners cannot urge the said ground for the first time in this revisional application and, as such, the decision of the Supreme Court in the case of Pushpa Devi Bhagat (supra) cited by the petitioners has no bearing this case. It was further submitted that in any event, when the opposite party No. 1 has not filed the suit either to challenge or avoid the said compromise decree and it is the specific case in the plaint that the said compromise decree has not been acted upon the said of the Supreme Court in the case of Pushpa Devi Bhagat (supra) has no application in this case. With regard to the decision of the learned Single Judge of this Court in the case of Satyaranjan Baidya (supra) cited by the petitioners it was submitted that in the said case the Civil Court lacked the jurisdiction to entertain the suit filed against the Securities Exchange Board of India and, as such, the said decision has no application in the present case. The opposite party No. 1 contended that none of the grounds urged by the petitioners in support of their application under Order VII Rule 11 of the Code for rejection of the plaint, for the suit being either barred by law or in abuse of process of Court is applicable in the present case. Urging all these grounds the opposite party No. 1 prayed for dismissal of the revisional application.

8. I have carefully considered the materials on record, as well as the arguments advanced by the learned advocates appearing for the respective parties. Since, there is no dispute that a copy of the said terms of settlement entered into between Kalyan Sen and Milan Sen, both since deceased resulting in passing of the compromise decree dated May 14, 1998 has been annexed to the plaint filed in the suit and the plaintiff opposite party No. 1 accepted the contention raised by the petitioners that a document referred to or annexed to the plaint should be treated as a part of the plaint, there is no necessity to deal with the cases cited by the petitioners in the cases of Church of Christ Charitable Trust and Educational Charitable Society (supra), SNP Shipping Services Pvt. Ltd. (supra), Maharaja Jagat Singh (supra) and Nithayya Thevar (supra). It was also urged that in any event, in the present case both Milan Sen and Kalyan Sen having accepted and acted upon the said compromise decree, the present suit filed by the petitioner claiming a relief contrary to the said compromise decree is not maintainable.

9. It is settled law that while deciding an application for rejection of plaint under clauses (a) and (d) of Order VII Rule 11 of the Code, the Court shall confine itself to the averments made in the plaint and the documents annexed or referred to the plaint and the averments made in the plaint are to be treated as true. It is also settled law that at the stage of deciding an application under Order VII Rule 11 of the Code, the averments in the plaint be read as a whole and the stand of the defendant in his written statement or in the application for rejection of the plaint is wholly immaterial. This view gets support from the ratio of the decision of the Supreme Court in the case of P.V. Guru Raj Reddy (supra). In this case, the first ground urged by the petitioners, the defendant Nos. 1 and 2 in the suit, for rejection of the plaint is that in view of the said compromise decree between the Kalyan Sen and Milan Sen, both since deceased the suit filed by the opposite party No. 1 is hit by the principle of res judicata. However, as held by the Supreme Court in the case of Vaish Aggarwal Panchayat (supra) and the Division Bench decision of this Court in the case of Mahamaya Paul (supra), the law is settled that the plea of res judicata is founded on proof of certain facts and the foundation for the plea must be laid in the pleadings and an issue must be framed and, as such, it cannot be a ground for rejection of plaint under Order VII Rule 11(d) of the Code. It is also trite law that a compromise decree is not a decision by the Court and it is the acceptance by the Court of something to which the parties agree. As held by the Supreme Court in the case Pulavarthi Venkata Subba Rao (supra) cited by the opposite party No. 1, the compromise decree at the highest creates an estoppel by conduct between the parties provided, the defendant pleads such estoppel. Therefore, the plaint filed by the opposite party No. 1 cannot be rejected under Order VII Rule 11(d) of the Code. Therefore, I find that the decision of Supreme Court in the case of Pushpa Devi Bhagat (supra) cited by the petitioners does not render any assistance to them.

10. So far as the ground urged by the petitioners before this Court that the plaintiff's suit is not maintainable in view of the provisions contained in Order XXIII Rule 3A of the Code, I find that such contention was neither raised in the application under Order VII Rule 11 of the Code nor argued before the learned trial Judge. Therefore, I find that the learned advocate appearing for the plaintiff was justified to contend, by placing reliance on the decision of the Division Bench of this Court in the case of Mahamaya Paul (supra), which is binding upon me that this Court cannot allow the petitioners to urge the said contention for the first time in this revisional application. Accordingly, I refrain from dealing with the decision of the learned Single Judge of this Court in the case of Salim Makkar (supra) cited by the petitioners.

11. Now, the said terms of settlement between Kalyan Sen and Milan Sen and the said compromise decree expressly provided for separation of the Lot A property and Lot B property allotted to Milan Sen and Kalyan Sen, respectively by metes and bounds and the parties would erect/construct boundary walls in respect of their respective lots allotted to them. In paragraph 13 of the plaint the opposite party has alleged that the said terms of settlement and the order made by the Court was not made effective, the said Kalyan Sen and Milan Sen continued to use the suit property as before, no partition deed was registered between them, the suit property remains undivided and he himself and the present petitioners and the proforma opposite parties defendants are the joint owners of the suit property in equal share. Therefore, I in the present case am unable to hold that on a meaningful reading of the plaint it appears that the suit is manifestly vexatious, in the sense of not disclosing a clear right to sue and the power under Order VII Rule 11 of the Code should be exercised. Accordingly, I find that the decisions of the Supreme Court in the cases of T. Arivandandam (supra) and I.T.C. Ltd. (supra) have no application in this case.

12. In support of their contention that the plaint filed in the suit is liable to be rejected under Order VII Rule 11 of the Code, on the ground of suppression of material facts the petitioners relied on the decisions of the Supreme Court in the cases of S.P. Chengalvaraya Naidu (supra), A.V. Papayya Sastri (supra) and Ramsukh (supra). As held in the said decisions it is settled law that a decree or order obtained by suppressing the material facts is a nullity and such decree and order can be challenged even in any collateral proceeding. In the case of Ramsukh (supra), the Supreme Court was dealing with an election petition under the Representation of the People Act, 1951. Section 83 of the Representation of the People Act provides that an election petition shall contain a concise statement of the material facts on which the petitioner relies and shall set forth full particulars of any corrupt practice that the petitioner alleges. In the said case after considering the averments made in the election petition the Supreme Court found that the election petition did not contain the material facts disclosing the cause of action of the election petitioner to file the election petition and it is only on the said ground the election petition was rejection under Order VII Rule 11 as the same did not disclose any cause of action. In the said decision the Supreme Court held that "material facts" are facts upon which the plaintiffs' cause of action arises or the defendant's defence depends. In the present case, it is not contended by the petitioners that the plaint filed by the opposite party does not disclose any cause of action, the plaint should be rejected under clause (a) of Rule 11 of Order 7. Therefore, I find that the decision of the Supreme Court in the case of Ramsukh (supra) does not render any assistance to the petitioners in this case. Further, the decision of the Supreme Court in the cases of S.P. Chengalvaraya Naidu (supra) and A.V. Papayya Sastri (supra) were not rendered on any application under Order VII Rule 11 of the Code. In view of the settled principle that for the purpose of deciding an application under Order VII Rule 11(a) and (d), the averments made in the plaint are only germane, the same are to be treated as true and correct and the pleas taken by the defendant in the written statement or in the application under Order VII Rule 11 would be wholly irrelevant at that stage, I am unable to convince myself to accept the contention that on the strength of the said decisions in the cases of S.P. Chengalvaraya Naidu (supra) and A.V. Papayya Sastri (supra) in the present case, the application under Order VII Rule 11 should be allowed. In the case of Satyaranjan Baidya (supra), the plaintiff filed the suit in a Civil Court challenging some orders passed by the Securities and Exchange Board of India under the provisions of Securities and Exchange Board of India Act, 1992 when Section 20-A of the said Act expressly barred the jurisdiction of a Civil Court to entertain such suit. Therefore, the decision of a learned Single Judge of this Court in the case of Satyaranjan Baidya (supra) has no application in this case.

13. Even in the case of Bhagirath Prasad Singh (supra), the learned Single Judge of the Patna High Court, particularly in paragraph 13 of the said decision found that the plaintiffs filed the suit by suppressing the material fact of challenging an earlier order dated November 20, 2006 in Civil Revision No. 16 of 2006, which had been dismissed by the High Court by a reasoned order dated May 01, 2008 and the learned trial Judge committed serious error to hold that the subsequent suit is not barred by res judicata and as such, held that the continuance of the second suit would amount to abuse of process of Court and allowed the application of the defendant revisional petitioner under Order VII Rule 11 of the Code by rejecting the plaint filed in the subsequent suit. From a reading of the said decision it is clear that the ground which swayed the learned Judge of the Patna High Court in the said case, to allow the application of the defendant revisional petitioner under Order VII Rule 11 of the Code rejecting the subsequent suit, that the suit was hit by the principle of res judicata and as such, the suit was held to have been filed in abuse of process of Court. However, in view of the finding I have already arrived at that the principle of res judicata cannot be invoked as a ground for rejection of plaint under Order VII Rule 11 of the Code, I am unable to agree with the decision of the learned Single Judge of the Patna High Court in the said case of Bhagirath Prasad Singh (supra).

14. For all the foregoing reasons, I find that the impugned order passed by the learned Court below suffers from no infirmity to be interfered by this Court in revisional jurisdiction. Accordingly, the revisional application being C.O. 233 of 2017 stands rejected. The interim order passed in this revisional application on March 15, 2017 stands vacated.

15. Before parting with the application it is, however, clarified that the findings of this Court in this order are restricted for the purpose of deciding the application for rejection of the plaint under Order VII Rule 11 of the Code and the learned Court below shall decide the pending application of the plaintiff opposite party No. 1 under Order XXXIX Rules (1) and (2) of the Code after considering all the contentions that may be raised by the defendant Nos. 1 and 2 in their written objection, including the documents disclosed in this application and any further document which they may disclose in the injunction application.

16. However, there shall be no order as to costs.

17. Let urgent certified copies of this judgment, if applied for, be made available to the parties upon compliance with all requisite formalities.



Print Page

No comments:

Post a comment