1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : S.B. Civil Misc. Appeal No.1718/2008. Ramkanwari & Others Vs. Ramjiya & Others DATE OF JUDGMENT : November 11, 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. Sajjan Singh/Mr. J.K. Bhaiya for the appellants. Mr. S.N. Trivedi for the respondents. BY THE COURT : In this miscellaneous appeal, filed under Order 43 Rule 1, read with Section 104, C.P.C., appellants are challenging the judgment and decree dated 18.09.2008 passed by the Addl. District Judge No.2, Bikaner in appeal No.26/2006, whereby, order dated 31.01.2005 passed by Addl. Civil Judge (Jr. Dn.) No.2, Bikaner in civil case No.464/01 has been set aside and the case has been remitted to the learned trial Court for adjudication. Brief facts of the case are that a suit for 2 possession of house and mesne profits was filed by one Poonam Chand against late Maganlal, original defendant alleging therein that a residential house in the ownership of the plaintiff is situated at Guron-ki-Guwad Mohalla, Bikaner. One Shri Ishwar and his adopted son Munilal, by an agreement dated 28.12.1943, transferred his share in favour of the plaintiff and said disputed portion of the house was in possession of late Magha and Gopal s/o Shivlal. After the death of Magha, Gopal remained in possession and he adopted the plaintiff in adoption on 25.06.1942. The plaintiff remained in possession of the property of Gopal being his adopted son. In connection with business, the plaintiff often visited Calcutta and defendant being his near relative, he assured the plaintiff that he will look after the disputed house. Upon this assurance, the original plaintiff permitted the defendant to reside in the property as licensee; but, without his permission, the defendant started construction over the house, therefore, the plaintiff filed the suit and prayed for decreeing the suit. In the suit, after filing written-statement, seven issues were framed and the matter is pending for adjudication and stage is for recording evidence of the 3 parties. During the pendency of the suit, appellant- defendant filed application under Order 7 Rule 11, C.P.C. with averments that legal representatives of Poonam Chand, on whose behalf, the suit is being tried against the legal representatives of original defendant, there was another suit pending in the Court of Addl. Civil Judge (Jr. Dn.) No.2, Bikaner which was decided on 04.04.2002 between the existing parties, in which, it is adjudicated that original plaintiff Poonam Chand and, thereafter, his legal representatives have no right or share in the house in question and against the said judgment dated 04.04.2002 no appeal or revision has been filed, therefore, it became final. Hence, the present suit is barred by law as per provisions of Section 11 of the Code of Civil Procedure under the theory of res judicata. Aforesaid application was allowed by the trial Court and vide order dated 31.01.2005 the trial Court dismissed the suit while considering the suit as barred by law. Against said order, respondent-plaintiff filed appeal before the lower appellate Court and vide the impugned judgment, the lower appellate Court allowed the appeal and set aside the order dated 31.01.2005 and remanded the matter again to the trial Court with a 4 direction to hear the matter, vide judgment dated 18.09.2008. Learned counsel for the appellant submits that lower appellate Court has committed a manifest perversity while passing the impugned judgment and decree. Learned lower appellate Court has failed to consider the material available on record as well as law points involved in the present matter. Further, it is argued that the application filed under Order 7 Rule 11 (d), C.P.C. was rightly allowed by learned trial Court because after adjudication made in another suit in between the parties, during the pendency of the present suit, the suit became barred by law, therefore, at the time of considering the case at the appellate stage, the lower appellate Court was under obligation to consider this important aspect of the matter that in another suit in between the parties adjudication was made, therefore, on the basis of principle of res judicata under Section 11, C.P.C. the suit became barred by law; but, the learned appellate Court ignored this important aspect of the matter and illegally quashed the order passed by the learned trial Court dated 31.01.2005, in which, the learned trial Court held that after adjudication of another suit in 5 between the parties during the pendency of the present suit, the continuance of the suit is barred by law. The impugned order which passed by the appellate Court suffers from material illegality and irregularity and has resulted in serious miscarriage of justice because fresh adjudication is required in the matter. Learned counsel for the appellant has invited my attention towards two judgments reported in (2004) 3 SCC 172, Pearlite Liners (P) Ltd. Vs. Manorama Sirsi and 2008 (2) RLW 1390 (Raj.), Temple of Thakur Shri Mathuradassji, Chhota Bhandar Vs. Shri Kanhaiyalal & Others. While citing the said judgments, it is submitted that if suit is barred by law, then, upon application filed under Order 7 Rule 11(d), C.P.C. by the respondents, the suit is required to be thrown out at the threshold. Further, it is pointed out that the judgment reported in 2008 (2) RLW 1390 (Raj.), learned Single Judge of this Court has held that plaint can be rejected on the ground mentioned in Order 7 Rule 11, C.P.C. like the suit is barred by law or it does not disclose cause of action or proper court-fee has not been paid even after Court's order. According to learned counsel for the appellant, the appellate Court has committed error while setting aside the order passed by the trial Court 6 whereby the application filed by the defendant under Order 7 Rule 11(d), C.P.C. was allowed. Therefore, judgment and decree dated 18.09.2008 which is impugned in this appeal may be set aside and order passed by the learned trial Court dated 21.01.2002 may be restored. Per contra, learned counsel for the respondents submits that a grave error was committed by the learned trial Court while entertaining the application filed under Order 7 Rule 11(d), C.P.C. during the courts of trial of the suit. Before the trial Court, in the suit, after filing written-statement and framing issues, trial was going on at the stage of recording evidence and, during the pendency of the suit, another suit was decided and while furnishing the information application was filed under Order 7 Rule 11, C.P.C., upon which, the learned trial Court dismissed the suit while holding that suit is barred by law. But, this order was not in consonance with law, therefore, appeal was preferred by the plaintiff's legal representatives before the appellate Court and learned appellate Court while considering the relevant provisions of law has come to the conclusion that during the pendency of the suit, if any adjudication is made in another suit in between the 7 parties, then, on that ground, it cannot be said that suit is barred by law or the doctrine of res judicata will come into play. At the time of entertaining the application under Order 7 Rule 11, C.P.C. only plaint is required to be seen and no other material can be seen for the purpose of deciding application under Order 7 Rule 11, C.P.C., therefore, while considering this aspect of the matter, the learned appellate Court gave its finding that as per Order 7 Rule 11 (d), C.P.C. only pleadings of the plaint is required to be seen and, on the ground of res judicata, at the stage of recording evidence suit cannot be held to be barred by law. Therefore, no interference is required in this appeal. Learned counsel for the respondent invited my attention towards certain judgments of this Court, reported in - (1) 2002 (2) DNJ (Raj.) 909 (2) RLW 2005 (1) Raj. 410, and (3) RLW 2004 (1) SC 76. While citing the above judgments, it is submitted that no case is made out for interference because as per verdict of the Hon'ble Supreme Court, at the time of deciding application under Order 7 Rule 11, C.P.C., only pleadings of the plaint are required to be seen and none else. Further, while considering various judgments, 8 recently, this Bench has held that at the time of deciding application under Order 7 Rule 11, C.P.C. only plaint is taken into consideration. I have considered entire arguments and record of the case. In my opinion, generally, at the threshold the suit can be dismissed upon filing an application under Order 7 Rule 11, C.P.C. But, here, in this case, after framing the issues and pendency of the suit for adjudication of the issues, an application was filed, that too, on the ground that in another suit some adjudication has been made for the dispute in between the parties and no cause of action survives, therefore, the suit may be dismissed. In my opinion, law is contrary to the above ground taken by the appellant. In number of cases, the Hon'ble apex Court has held that for the purpose of deciding application under Order 7 Rule 11, C.P.C., only averments of the plaint are required to be seen and none else. Whether any cause of action is in existence or not, it is to be seen from the pleadings of the plaint only. In these circumstances, the facts of the instant case are altogether different because from bare perusal of the plaint it appears that proper adjudication can be made after due trial of the suit self. In this view of the matter, this appeal is bereft 9 of merit and deserves to be dismissed. This appeal is, therefore, accordingly dismissed. (Gopal Krishan Vyas) J. Ojha, a.