Surender Kumar v. Dhani Ram And Others

$~ *

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CS(OS) 1737/2012 SH. SURENDER KUMAR ..... Plaintiff Through:

Mr. Bharat Bhushan Bhatia, Adv. & Ms. Dimple Chauhan, Adv.

versus SH. DHANI RAM & ORS.

..... Defendants Through:

Mr. Manish Vats, Adv. for D-4 to 6

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

O R D E R

% 18.07.2016 Review Petition No. 313/2016 (against order dated 18.1.2016 filed by the plaintiff) & I.A.No. 8308/2016(condonation of delay 38 days), I.A No. 8309/2016 (U/o 6 R 17 CPC) & 8310/2016 (U/o 7 R 14(2) CPC) 1.

By this review petition plaintiff seeks review of the judgment dated 18.1.2016 by which the application of the defendant no.1 under Order 7 Rule 11 CPC was allowed and the suit was dismissed as lacking cause of action.

2.

I have pointed out to learned counsel for the plaintiff the provision of Order 7 Rule 13 CPC and the ratio of the judgment of the Supreme Court in the case of Sheodan Singh Vs. Daryao Kunwar (Smt.) (1966) 3 SCR 300; AIR 1966 SC 1332 which holds that where the suit is CS(OS) 1737/2012

dismissed not on merits but on technical grounds the judgment does not operate as res judicata.

Counsel was also not able to point to me any judgment by which a plaint can be amended after the suit is dismissed and the plaint is rejected for lacking cause of action. 3.

Accordingly, counsel for the plaintiff states that he does not press the review application and the connected applications but prays for and is granted liberty in terms of Order 7 Rule 13 CPC to file a fresh suit plaint in view of the fact that filing of a fresh suit on the same cause of action is allowed by Order 7 Rule 13 CPC and the judgment dated 18.1.2016 of this Court will not operate as res judicata in view of the judgment of the Supreme Court in the case of Sheodan Singh (supra). 4.

Review petition and all pending applications are disposed of. VALMIKI J. MEHTA, J JULY 18, 2016 ib CS(OS) 1737/2012