1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE First Appeal No.2058 of 2008 With Civil Application No.5336 of 2008 Sunil Vasudeo Ranade, through his duly constituted attorney Shri Abhay Moreshwar Thombre Appellant Vs. Dr.Madhav Vitthal Chitale & ors. Respondents Mr.A.V.Anturkar i/b. Mr.S.B.Deshmukh for appellant. Mr.S.S.Patwardhan for respondent no.4. CORAM: B.H.MARLAPALLE & D.G.KARNIK,JJ. Reserved on : February 10, 2009. Pronounced on : February 16, 2009. ORDER (PER B.H.MARLAPALLE,J.) : 1. This First Appeal arises from the order dated 19/9/2008 passed by the 4th Joint Civil Judge, Senior Division at Pune thereby allowing the Application (Exhibit 17) under Order VII, Rule 11 read with Section 11 of CPC and rejecting the plaint as being hit by the principles of res judicata. The facts leading to the impugned decree are as under: 2. The suit property viz. House No.1222, Shivajinagar, Pune originally belonged to Shri Vitthal Krishna Chitale and he had two children viz. Smt. Bharati Ranade (daughter) and Dr. Madhav 2 Chitale (son) Vitthal Chitale’s wife died on 4/4/1965. He had executed a Will in his own handwriting on 19/4/1965 with two attesting witnesses viz. Shri P.V.Dixit and Shri Prabhakar Raje. Smt. Bharati Ranade had filed Special Civil Suit No.776 of 1990 against Dr.Madhav Chitale, his wife - Vandana Chitale and son - Vinay Chitale for partition and separate possession of the suit house admeasuring about 2160 sq.mtrs. The learned 4th Joint Civil Judge, Senior Division was pleased to decree the suit on 3/10/1997 and it was declared that the plaintiff and defendant no.1 had 1/2 share each in the suit property. This decree came to be challenged in First Appeal No.141 of 1998 by the defendants and in First Appeal No.188 of 1998 by the plaintiff. By a common judgment dated 20/1/2004 a Division Bench of this Court was pleased to allow the appeal filed by the defendants and the appeal filed by the plaintiff came to be dismissed. The decree passed by the trial Court on 3/10/1997 was set aside and consequent Special Civil Suit No.776 of 1990 came to be dismissed. . The plaintiff approached the Apex Court in SLP No.8195-8196 of 2004 and the same was dismissed on 3 30/4/2004. Review Petition filed in the said SLP i.e. Review Petition (Civil) Nos.1683-1684 of 2004 also came to be dismissed on 3/11/2004. The plaintiff filed Curative Petition No.21 of 2006 and the same was also dismissed on 17/4/2007. In the mean while the original plaintiff died. 3. The appellant - Shri Sunil Ranade, the son of the original plaintiff filed Special Civil Suit No.69 of 2007 through his Constituted Attorney on or about 3/1/2007. Application at Exhibit 17 was filed by the defendants in Special Civil Suit No.69 of 2007 contending therein that the suit was barred by the principles of res judicata. In Special Civil Suit No.69 of 2007 the cause of action as set out in para 19 read as under: "The cause of action for the present suit first arose in or about October 2005 when the plaintiff first acquired certified copies of the acknowledged and admitted signatures of the late SHRI VITTHAL KRISHN CHITALE, and again on 22nd February 2006 when the hand-writing expert SHRI ANANDRAO JADHAV, Advocate and Finger Print and Hand Writing 4 Expert, Life Member of the Indian Academy of Forensic Sciences, opined that the will dated 19-4-1965 was not in the hand writing of the late SHRI VITTHAL KIRSHN CHITALE, and that the signature on the said will did not tally with his admitted signatures, and further opined that the hand-writing of the will dated 19-4-1965 and the copy thereof, admittedly in the hand writing of the Defendant no.2, were written by one and the same person. Thus, the plaintiff first acquired knowledge of the facts entitling him to have the decree set aside on 22-2- 2006, and as such the present suit is well within the prescribed period of limitation." . In short it was contended that Shri Vitthal Krishna Chitale did not execute any Will, he did not sign the same and the defendants had obtained the decree in Special Civil Suit No.776 of 1990 by practising fraud on the Court. 4. Mr.Anturkar, the learned counsel for the appellant - plaintiff submitted that the principles of res judicata within the meaning of Section 11 of 5 CPC could not have been invoked without the suit being subjected to trial and in any case the plaint could not have been returned under Order VII, Rule 11 of IPC. He referred to Section 44 of the Indian Evidence Act, 1872 and submitted that the suit could have been entertained under the said Section and the plaintiff could have been given an opportunity to show that the decree passed in Special Civil Suit No.776 of 1990 was obtained by fraud or collusion. As per Mr.Anturkar, the suit could have been entertained so as to make out a case for the declaration that the decree passed in Special Civil Suit No.776 of 1990 was obtained by fraud. In support of his contentions Mr.Anturkar has relied upon the decision of the Supreme Court in the case of Bhaurao Dagdu Paralkar Vs. State of Maharashtra & ors. [(2005) 7 SCC 605] [(2005) 7 SCC 605] [(2005) 7 SCC 605] and a decision of the Allahabad High Court (D.B.) in the case of Ibne Hasan Vs. Smt. Hasina Bibi & ors. [AIR 1984 Allahabad [AIR 1984 Allahabad [AIR 1984 Allahabad 216] 216] 216]. 5. The only question that arises for our consideration is whether the Trial Court was justified in invoking its powers under sub-Rule (d) of Rule 11 of Order VII of CPC. Rule 11 of Order VII 6 to the extent relevant states that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. It is, therefore, necessary to examine whether on the basis of the statements made in the plaint itself, there was a case made out to return the plaint on the ground of res judicata. We deem it appropriate to reproduce the following relevant observations in the Plaint in Special Civil Suit No.69 of 2007: "7. The plaintiff respectfully submits that on 14-12-1990, the Defendant No.1 and 2 filed their written statements in the above suit, and for the first time they have come up with the story that the late VITTHAL KIRSHN CHITALE had executed his last will purportedly dated 19-4-1965. The Defendant No.2 and his late mother, despite being fully aware of the forged nature of the will, have actively aided and abetted the Defendant No.1 in introducing the said forged document and using it in a court of law as fabricated evidence. The Plaintiff submits that the said document is forged and fabricated by the Defendants, which factum is only recently confirmed through a 7 qualified and reputed handwriting expert. The Plaintiff respectfully submits that all the writings of the late VITTHAL KRISHN CHITALE were in the custody of the Defendant at all relevant times. Neither the Plaintiff nor his late mother was permitted to have access or custody of any of the acknowledged writings in Marathi of the late SHRI VITTHAL KRISHN CHITALE. All the relevant writings filed on record, and specifically his signature, were in English, and incapable of being compared to the purported signature on the will dated 19-4-1965. The Plaintiff submits that on 22-6-1994, the Defendants produced the original forged will in the Court of the Civil Judge, Senior Division, Pune, at Pune, with the criminal intention of using the said forged instrument as evidence in a trial, and was aided and abetted by the other Defendant and his late mother. 12. The Plaintiff submits that Special Civil Suit No.776/1990 was filed in the Court of the Civil Judge, Senior Division, Pune, at Pune, by the late mother of the Plaintiff. 8 The said suit came to be partly decreed in favour of the Plaintiff’s late mother, and preliminary decree to that effect was drawn up on 3-10-1997. The issues, namely [1] Whether plaintiff proves that description of the suit property is correct? [2] Whether plaintiff proves that for the first time in 1989 she learnt that names of the defendants are entered in the City Survey Record for the suit property on the basis of alleged will dated 19-4-1965? [3] Whether plaintiff’s suit is within limitation? [4] Whether plaintiff is entitled to partition if yes, what is her share?, were answered in favour of the plaintiff’s late mother, and the issues [5] Whether deft. No.1 proves that on 19-4-1965 his father executed a will and at the time of execution of the Will he was able to and was in a position to know the facts of testamentary disposition? [6] Whether defendant no.1 proves that he applied to the City Survey Office on 27-9-67 and that on the said application plaintiff gave her consent for entering his name for the suit property on the basis of will of her father? [7] Whether 9 defendants prove that there has been a total ouster of plaintiff from the use, occupation and enjoyment of the suit property for more than 12 years? were answered in the negative against the defendants. The Defendants and also the Plaintiff’s late mother being aggrieved by the same, preferred Civil Appeals Nos.141 and 188 of 1998 in the High Court of Judicature at Mumbai. The appeal filed by the Defendants was allowed on 20-1-2004, and copy thereof is annexed. Being aggrieved by the same, the Plaintiff’s late mother intended to file a Special Leave Petition in the Supreme Court of India. However, one ANIRUDDHA DESHPANDE, who at an earlier date, was the attorney of the plaintiff’s mother, acting without her consent and behind her back, by misusing the authority given to him by the Plaintiff’s late mother, filed Special Leave Petition No.8195-96 of 2004 in the Supreme Court of India. Due to failure on the part of said ANIRUDDHA DESHPANDE to ensure proper arrangements for representation and conduct of the matter, the said petitions appear to have been dismissed, against which Review Petition 10 No.1683-1684 of 2004 was filed which again came to be dismissed. The Plaintiff respectfully submits that in all the above proceedings, the issue as to whether the writing or signature on the will dated 19-4-1965 is that of late VITTHAL KRISHN CHITALE or not, is not considered nor decided or adjudicate fully and finally at any stage." 6. In para 12 of the plaint as reproduced hereinabove, the last statement made by the plaintiff, on the face of it, is contrary to his earlier averments wherein he has reproduced the issues framed by the trial Court in Special Civil Suit No.776 of 1990. In the first part of Issue No.5 the trial Court was pleased to frame the issue "Whether defendant no.1 proves that on 19-4-1965 his father executed a will." While allowing the appeal filed by the defendants a Division Bench of this Court in paragraph 43 of its judgment dated 20th January 2004 held as under: "In the circumstances, in our view, the learned Judge has committed a grave error in coming to the conclusion that the will was not 11 proved. His finding on issue No.3 was, therefore, erroneous and is hereby reversed. Hence, on the point for determination which arises in the present Appeal, we hold that the Learned Judge has erred in law and on facts in holding that the will dated 19th April 1965 of the deceased Vitthal Krishna (Krishnaji) Chitale was not proved. We further hold that the Will was valid and effective in the eyes of law." This Court in paragraph 41 observed that, "...The Respondent did not dispute the handwriting on the Will nor did ask for sending it to any handwriting expert..." 7. In the plaint of Special Civil Suit No.69 of 2007 while describing the sequence of events the judgments of this Court as well as the Supreme Court arising from decree passed in Special Civil Suit No.776 of 1990 were also referred to and when such documents are referred to and relied upon in the pleadings and more particularly in the plaint, there is no hesitation in holding that the said documents 12 also form part of the plaint. The learned Judge of the trial Court rightly relied upon the observations made by this Court and came to the conclusion that issue regarding the Will executed by late Shri Vitthal Chitale was finally concluded by this Court and confirmed by the Supreme Court. Whether late Shri Vitthal Chitale had signed the Will was also an issue which was adjudicated and held in favour of the defendants. This Court also gave a finding that the plaintiff did not dispute the handwriting on the Will. Perusal of the common judgment of this Court in First Appeal Nos.141 and 188 of 1998 and more particularly paragraph nos.32 to 36 clearly goes to show that the execution of the Will by late Shri Vitthal Chitale was duly proved. The present plaintiff, on the demise of his mother, is certainly trying to reopen the issues regarding the will and which issues were adjudicated and held against his late mother. 8. In the peculiar facts of this case the decisions relied upon by Mr.Anturkar are not applicable and in our considered opinion, the trial Court was justified in rejecting the plaint under Order VII Rule 11(d) read with Section 11 of CPC, on 13 the ground of res judicata. The factum of execution of the will by late Shri Vitthal Chitale, his signing the Will in his own handwriting and the original plaintiff acting upon the said will have been duly adjudicated and answered in favour of the defendants. 9. Hence this appeal fails at the threshold and the same is hereby dismissed. 10. Civil application does not survive and the same stands dismissed. (D.G.KARNIK,J.) (B.H.MARLAPALLE,J.)