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Madras High CourtCRP/2795/2022dismissed

Arumugam v. Kaliannan

2024-04-02Honourable Mr Justice V. Lakshminarayanan6 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 02.04.2024

CORAM:

THE HONOURABLE Mr.JUSTICE V.LAKSHMINARAYANAN and CMP.No.15041 of 2022 1.Arumugam 2.Kolandhavel 3.Duraisamy 4.Nallasivam ... Petitioners/Petitioners/Defendants Vs 1.Kalliannan 2.Paravel ....Respondents / Respondents / Plaintiffs Prayer : Civil Revision Petition filed under Article 227 of the Constitution of India praying to set aside the decretal order dated 16.06.2022 passed in I.A.No.1 of 2019 in O.S.No.155 of 2018 by the learned District Munsif, Paramathi, and allow this civil revision petition. For Petitioners : Mr.S.Kaarthick for Mr.V.B.Jeyachandran For Respondents : No Appearance 1/6

ORDER

The civil revision petition arises against the order in I.A.No.1 of 2019 in O.S.No.155 of 2018 on the file of the District Munsif Court, Paramathi. The revision petitioners herein are the defendants in O.S.No.155 of 2018.

2. The suit in O.S.No.155 of 2018 is laid for permanent injunction restraining the defendants/revision petitioners from laying any pipeline over the suit pathway denoted 'A' 'B' & 'C' in the plaint. Pending the suit, the defendants have taken out an application under Order VII Rule 11. According to them, between the very same parties, a suit for mandatory and permanent injunction had been laid in O.S.No.144/2005, which was dismissed and taken on appeal in A.S.No.50 of 2018 before the Sub Court, Paramathi. The appeal also met with a similar fate and consequently, this suit is barred by res judicata. On the basis of these documents, the defendants have taken out an application in I.A.No.1 of 2019 under Order VII Rule 11 CPC for rejection of the plaint. The said application was dismissed, against which the present revision is filed.

3. Heard Mr.S.Kaarthick for Mr.V.B.Jeyachandran, for the revision 2/6

petitioners. The respondents though served, have not entered appearance.

4. Mr.S.Kaarthick would vehemently submit that previously the very same issue had been brought before the Court in O.S.No.144/2005, and the same was dismissed and the appeal also confirmed the decree made in O.S.No.144/2005. After having lost the litigation in O.S.No.144/2005, the plaintiffs have laid a fresh round of litigation in O.S.No.155 of 2018. He would plea that res judicata bars the second suit and therefore, the plaint should be rejected.

5. I have gone through the records, in particular, the order impugned in the revision. Rejection of plaint must fall within four corners of Order VII Rule 11 CPC. Res judicata is a defence that is taken by the defendant in order to defeat the claim of the plaintiff. Res judicata by its very nature requires the filing of pleadings, issues, as well as the judgment and decree of the previous proceedings. This requires oral and documentary evidence. See: Syed Mohd.Salie Labbai (dead) By L.Rs and Others Vs Mohd.Hanifa (dead) by L.Rs and Others [(1976) 4 SCC780]. If evidence is required to be recorded, then it will certainly not fall under any of the categories of Order 3/6

VII Rule 11 CPC. I am surprised from the impugned order that the learned Judge has permitted the defendants to mark documents. In an enquiry under Order VII Rule 11, the averments made in the plaint have to be taken as true, and on that basis the Court must come to the conclusion whether the suit is barred or not. Neither the defence taken by the defendants nor his documents are essential for the disposal of the application. Be that as it may, as the plea is one that of res judicata, and res judicata would require filing of documents before the Court which the plaintiffs have not filed before the Court, I am not inclined to accept the submissions of the learned counsel for the revision petitioners.

6. In conclusion, this civil revision petition is dismissed. It is always open to the defendants to take all the defences including the suit is barred by res judicata in his written statement. No costs. Consequently, connected miscellaneous petition is closed.

02.04.2024 Index:Yes/No Internet:Yes/No Speaking order/Non-speaking order ds 4/6

To 1.The District Munsif Paramathi.

2.The Section Officer VR Section High Court, Madras.

5/6

V.LAKSHMINARAYANAN,J.

ds 02.04.2024 6/6