9911796707
TMI Blog2015 (8) TMI 1518X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment and decree dated 19.9.1998 and no appeal was preferred against the same. Subsequently, the Respondent Nos. 1 and 2 sought execution of the decree and during its pendency, the Petitioner, Vaish Aggarwal Panchayat (society), filed objections claiming that it is the owner of the suit land by way of gift deeds dated 5.3.1997 and 6.3.1997 executed by Ved Prakash and Banarsi Dass. The objections filed by the Society were rejected vide order dated 4.11.2000. Thereafter, the Society filed an application for setting aside the judgment and decree dated 19.9.1998 and for stay of the execution, which was dismissed vide order dated 19.4.2001 and the appeal filed by the society against the same was also dismissed vide judgment dated 1.10.2004. 3. In the meantime, a suit for declaration bearing no. 333/03 of 2001 was filed by the Society for declaring the judgment and decree, dated 19.9.1998 passed in Civil Suit No. 806 of 1993 by the Civil Judge (SD), Kurukshetra, and the subsequent sale deed dated 30.1.2001 and mutation No. 2450 as illegal, null and void with the consequential relief of permanent injunction. The present respondent Nos. 1 and 2, who are defendants in the said suit, app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the said decree was filed; that during the pendency of the execution petition seeking execution of the judgment and decree dated 19.09.1998, the respondent-Society had filed objections through Vishav Pal Goel where they had claimed to be the owners of the suit land by way of gift deeds dated 05.03.1997 and 06.03.1997 executed by Ved Pal and Banarsi Dass which were dismissed vide order dated 04.11.2000 and there was nothing on record to show that the said order was dislodged in appeal; that the respondent-Society filed an application for setting aside the judgment and decree dated 19.09.1998 and for stay of the execution, which was also dismissed vide order dated 18.04.2001 and appeal filed by the plaintiff was also dismissed vide judgment dated 01.10.2004; that all the pleas which had been raised by the plaintiff-respondent No. 1 before the High Court had already been agitated before the executing court and the appellate court, which were rejected and the order of the appellate court dated 01.10.2004 had become final hence, binding upon the parties; that the plaintiff-Society could not permitted to re-open the matter again by way of the present suit as they had availed the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of the plaint and the written statement, the learned trial Judge has framed number of issues and the issue number 1 relates to maintainability of the suit and issue number 9 pertains to whether the suit of the plaintiff is barred by principles of resjudicata. As is evident, after the framing of the issues the defendant filed the application under Order VII Rule 11 C.P.C. stating that the suit is not maintainable as barred by resjudicata. The learned trial Judge, as is evident from the order passed by him, has taken note of the stand taken in the written statement which has been regarded as the incorrect approach by the learned appellate Judge. The High Court, as it appears, has been guided by the finding recorded by the learned trial Judge totally ignoring the factum that such a conclusion has been arrived at by taking into consideration the averments made in the plaint and the assertions put forth in the written statement. The crux of the matter is whether, in the obtaining factual matrix, the High Court should have applied the principle of resjudicata. The cause of action for filing the suit is different. The grounds urged in the suit, as we find, are also quite differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impact of the plea of resjudicata regard being had to the principle enshrined under Order VII Rule 11(d) of the C.P.C. 13. In this regard the pronouncement in Kamala and others v. K.T. Eshwara SA and others [(2008) 12 SCC 661] would be seemly. In the said case while dealing with the principle engrafted under Order VII Rule 11(d) C.P.C., the Court has held thus:- "21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case where a question has to be decided on the basis of fact that the suit was barred by limitation. The point as to whether the words "barred by law" occurring in Order 7 Rule 11(d) CPC would include the suit being "barred by limitation" was not specifically dealt with in either of these two judgments, cited above. But this point has been specifically dealt with by the different High Courts in Mohan Lal Sukhadia University v. Priya Soloman [AIR 1999 Raj. 102], Khaja Quthubullah v. Govt. of A.P. [AIR 1995 AP 43], Vedapalli Suryanarayana v. Poosarla Venkata Sanker Suryanarayana [(1980) 1 An LT 488], Arjan Singh v. Union of India [AIR 1987 Del 165] wherein it has been held that the plaint under Order 7 Rule 11(d) cannot be rejected on the ground that it is barred by limitation. According to these judgments the suit has to be barred by a provision of law to come within the meaning of Order 7 Rule 11 CPC. A contrary view has been taken in Jugolinija Rajia Jugoslavija v. Fab Leathers Ltd. [AIR 1985 Cal 193], National Insurance Co. Ltd. v. Navrom Constantza [AIR 1988 Cal 155], J. Patel & Co. v. National Federation of Industrial Coop. Ltd. [AIR 1996 Cal 253] and State Bank of India Staf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of this case." 16. After so stating, the Division Bench opined that in the facts of the said case, the suit could not be dismissed as barred by limitation without proper pleadings, framing of issue on limitation and taking evidence, for question of limitation is a mixed question of fact and law and on ex-facie reading of the plaint it could not be held that the suit was barred by time. 17. Coming to the case at hand we find that the allegations in the plaint are absolutely different. There is an asseveration of fraud and collusion. There is an assertion that in the earlier suit a decree came to be passed because of fraud and collusion. In such a fact situation, in our considered opinion, the High Court has fallen into error by expressing the view that the plea of resjudicata was obvious from the plaint. In fact, a finding has been recorded by the High Court accepting the plea taken in the written statement. In our view, in the obtaining factual matrix there should have been a trial with regard to all the issues framed. 18. Resultantly, the appeal is allowed and the order passed by the High Court is set aside and that of the appellate Judge is restored. The trial court is d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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