*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY + C.R.P. Nos.525 & 529 of 2011 COMMON ORDER: %07-07-2011 # V. Narasimha Reddy & others ..petitioners And $ Sara Abdul Gafoor & others ..Respondents !Counsel for the petitioners : : Sri K. Rama Krishna Reddy, learned Senior Counsel ^Counsel for respondents : Sri Sunil B. Ganu < Gist: > Head Note: Citations: 1) (2005) 7 SCC 510 2) 2008 (4) ALD 24 (SC) 3) (2008) 11 SCC 753 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY C.R.P. Nos.525 & 529 of 2011 COMMON ORDER: Respondents 1 to 17 herein (for short ‘the respondents’) filed O.S.No.354 of 2009 in the Court of II Additional Chief Judge, City Civil Court, Hyderabad, against respondents 18 to 70 and the petitioners herein (defendants 3 and 27), for the relief of declaration to the effect that they are the owners and possessors of Acs.7.28 guntas of land, in Sy.No.129/52, and for perpetual injunction. The petitioners filed I.A.No.2461 and 2462 of 2009, individually, with a prayer to reject the plaint under Rule 11 of Order VII C.P.C. Through separate, but similar orders, the trial Court dismissed the same. Hence, these revisions, under Article 227 of the Constitution of India. The petitioners contend that the respondents have been litigating for the suit schedule property in one form or the other for the past several decades, and that even after they lost in every forum, they filed the present suit to open another round of vexatious litigation. It is also their case that the suit is barred by res judicata, and by limitation. They contend that the trial Court did not appreciate the matter from the correct perspective and that the plaint is liable to be rejected. Reference is made to various proceedings, that have ensued on earlier occasions. Sri K. Rama Krishna Reddy, learned Senior Counsel for the petitioners submits that the question as to ownership and identity of the land and possession over it were decided by this Court, way back in the year 1976, in CCCA No.14 of 1972, and that in turn was followed by several proceedings, such as, LGC Nos.29 of 1992 and 15 of 1996 on the file of the Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad, and that the trial Court ought to have rejected the plaint, as being without cause of action or as the basis for another round of vexatious litigation. He further pleads that the allegation of fraud made by the respondents, vis-à-vis the judgment in CCCA No.14 of 1972 was dealt with by the Special Court in LGC Nos.29 of 1992 and 15 of 1996, and the findings recorded by the Special Court were affirmed by this Court in its judgment in W.P.No.9931 of 2006. Learned counsel submits that the suit is barred by limitation and that the trial Court was under obligation to examine that question, closely, as required under Section 3 of the Limitation Act (for short ‘the Act’). He contends that, when a party does not have any independent right, a casual observation made by a Court in an earlier round of litigation cannot constitute the basis for institution of proceedings. He has placed reliance upon certain judgments rendered by the Hon’ble Supreme Court. Sri Sunil B. Ganu, learned counsel for the respondents, on the other hand, submits that the plea of res judicata raised by the petitioners can, at the most be a defence in the suit and cannot be a ground for rejection of a plaint. He contends that the respondents, no doubt, filed LGC Nos.29 of 1992 and 15 of 1996, to enforce their rights, but the Special Court refused to exercise the jurisdiction, and this Court held that the Special Court does not have jurisdiction to entertain the matters of that nature. He submits that the petitioners failed to demonstrate as to how the suit was barred by limitation, or to bring it within the other facets of Rule 11 of Order VII C.P.C. He too relied upon certain precedents. The Code of Civil Procedure prescribes a detailed and comprehensive procedure, that would govern in various stages of civil proceedings, commencing from the institution of proceedings and culminating in execution of the decree. The proceedings in a civil suit commence with the presentation of a plaint. Rule 2 of Order VI C.P.C indicates as to what should be the basic contents of a pleading, meaning thereby, the plaint and written-statement. They are required to contain only “a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be”. It specifically prohibits the incorporation of evidence in the pleadings. Once a Court of a competent jurisdiction receives the plaint and assigns a number to it after due verification, the defendant has two options: The first is to contest the suit by filing a written-statement, and the second is to file an application under Order VII Rule 11, to reject a plaint. In certain cases, the Court can reject the plaint on its own accord, if it finds that any grounds mentioned in Rule 11 of Order VII exist, vis-à-vis the case. For instance, a suit can be said to have been barred, either when a specific law takes away the jurisdiction of the civil Court, vis-à-vis the subject-matter, or when it is presented, after the expiry of the period of limitation. Though the plea of limitation can be raised by a defendant in a suit, the Court is also placed under obligation under Section 3 of the Act, to verify, whether the suit is presented within limitation; and to reject the plaint, if it is found to have been presented after the expiry of the period prescribed under the relevant provisions of law. Whether an exercise pertaining to rejection of a plaint is undertaken by the Court on its own accord, or at the instance of the defendants, the verification shall be only with reference to the contents of the plaint. In other words, it is only when the contents of the plaint on their face value and without the aid of any external material disclose that the suit is barred by any law or by limitation, or if it does not disclose any cause of action, that it can be rejected. Reference in this context may be made to the judgment of the Supreme Court, in POPAT AND KOTECHA PROPERTY v. STATE BANK OF INDIA STAFF ASSOCIATION[1]. It was held in paragraph 19, as under: “There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair- splitting technicalities”. The same view was taken by the Hon’ble Supreme Court in many judgments earlier and subsequent thereto. The fact that a different version from what is stated in the plaint is possible, and the same would render the suit not maintainable; cannot be a ground to reject the plaint. At the most such contents can constitute the basis for framing of independent issues. In a given case, the defendant can request the Court to decide such precise question as preliminary issue, and decide the same at the threshold, without entering the arena of merits. Since rejection of a plaint would entail in virtual denial of entry to a citizen into a civil Court, the power under Rule 11 of Order VII is required to be exercised carefully and cautiously. In the instant case, the basis on which one of the petitioners wanted the trial Court to reject the plaint was that the suit was barred by res judicata. It appears that the plea of limitation was also argued in the course of hearing of the I.As. The plea is contained in paragraphs 2, 3 and 4 of the affidavit filed in support of the I.A. It is necessary to reproduce the same, to understand the purport thereof. “2. I submit that the respondents/plaintiffs had filed the above suit for declaration of their alleged title and consequently for perpetual injunction of suit schedule property. The allegations made in the plaint of plaintiffs is suppression of facts and equally the subject matter was already adjudicated in several former proceedings. Thus the issue involved in the present suit was the adjudicated issue of earlier proceedings, therefore the present suit of the plaintiffs are bad under Law like resjudicata, limitation, etc. In view of such bar of suit under Law the same is liable to be rejected on the face of it to avoid frivolous, speculative and unwarned litigation. 3. I submit that the respondent/plaintiff No.16 had filed earlier a claim petition under Order-21, Rule 97 of C.P.C. in E.P.No.20 of 1991 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad which was claiming the present suit schedule property. Of course the said claim petition of respondent/plaintiff No.16 was also dismissed on merits. The claim of respondents/plaintiffs was not only subject matter of E.P.No.20 of 1991 but also adjudicated in O.S.No.29 of 1965 on the file of the Additional Chief Judge, City Civil Court, Hyderabad, C.C.C.A.No.14 of 1972 on the file of the Hon’ble High Court of Andhra Pradesh, L.G.C.NO.46 of 1989 and L.G.C.No.29 of 1992 and L.G.C.NO.15 of 1996 before the Special Court under the Act. Thus the subject matter of present suit was substantially in issue with the former proceedings, therefore the present suit is squarely covered under the policy of resjudicata. 4. I submit that in view of judgements rendered in the above mentioned former suits, LGCs, CCCAs and E.A.No.14 of 1995 in E.P.No.20 of 1991, the institution of present suit is barred under Law. It may not be out of place to add that either the plaintiffs or their alleged predecessors in title were the parties to the above said concluded proceedings. As such the plaintiffs are bound by the proceedings participated by the predecessors in title”. In another I.A., the plea as to limitation was urged in a faint and half-hearted manner. It hardly needs any mention that a plea of res judicata is a mixed question of fact and law. If it is proved as a matter of fact, meaning thereby, that it is established that as between the same parties the same issue was decided on earlier occasion by a competent Court of law, a principle of law gets attracted, which has the effect of barring the subsequent suit. A defendant who takes the plea of res judicata has to plead the particulars of the earlier proceedings, indicate the purport thereof, and satisfy the Court that the issue involved in the suit filed afterwards, was decided earlier, as between the same parties by a competent Court of law. By its very nature, this exercise needs oral and documentary evidence. Parliament has advisedly not treated the res judicata as a basis or ground for rejection of a plaint. In KAMALA AND OTHERS v. K.T. ESHWARA SA AND OTHERS[2], the Hon’ble Supreme Court held that the principle of res judicata involves mixed question of fact and law, and that it cannot constitute the basis for rejection of a plaint. It was also suggested that, it can, at the most, be a valid defence. In C.R.P.No.2494 of 2010, this Court held in para 4 as under: “Even where a plea of res judicata is available to a defendant in a suit, he cannot seek rejection of the plaint. The reason is that the said ground does not fit into any of the clauses contained in Rule 11 of Order VII C.P.C. Rejection of plaint is a very drastic step resulting in the very closure of doors of a Court to the plaintiff in the suit concerned. Refusal of adjudication on merits by a Court warrants a very strong circumstance covered by Rule 11 of Order VII C.P.C. The Parliament was very cautious in stipulating the grounds on which a plaint can be rejected”. Therefore, the request of the petitioners to reject the plaint on the ground that the suit was barred by res judicata cannot be acceded to. Arguments were advanced on the question of limitation also. As observed earlier, a plaint can be rejected on the ground that the claim is barred by limitation if only the contents of the plaint lead to that conclusion.The suit was filed for the relief of declaration. The respondents gave a detailed account of the nature of reliefs claimed by them from time to time, and the result of various proceedings. They instituted LGCs to work out their remedies. However they were rejected by the Special Court. W.P.No.9931 of 2006 filed by the respondents was dismissed upholding the view taken by the Special Court. In addition to that the Division Bench of this Court left it open to the petitioners to pursue their remedies in accordance with law. To be precise, the Court said, “It is needless to mention that the remedies, if any can be availed by any of the parties concerned or aggrieved, to seek appropriate leave before the appropriate forum on its own merits, independently, and in accordance with law”. This was on 22-05-2007. The plaint was presented in June, 2009. In between, review petitions were filed by various parties and they came to be disposed of on 22-02-2008. The learned Senior Counsel appearing for the petitioners submits that the observations extracted above would be an obiter and that they cannot be treated as a source of right to file a suit. Placing reliance upon the judgment of the Supreme Court in DADU DAYALU MAHASABHA JAIPUR (TRUST), v. MAHANT RAM NIWAS AND ANOTHER[3], he submits that the judgment rendered by a Court cannot be interpreted as though it is a statute, and if an individual does not have any right to institute proceedings, the observations made in an earlier round of litigation cannot constitute the basis. Even if this contention is accepted, the merits thereof can be analyzed only in the course of trial. A plaint cannot be rejected on the basis of submissions of this nature. At the cost of repetition, it has to be observed that a plaint cannot be rejected only on the basis of a defence available to a defendant, and the question as to whether any averment in a plaint constitutes res judicata or is the basis of any misinterpretation of a judgment has to be considered at the hearing of the suit. Not at the threshold. Though the learned counsel for the parties have addressed arguments touching partly on the merits of the matters, this Court has chosen not to refer to them, lest, any view expressed thereon would have its shadow or impact upon the adjudication of the matter by the trial Court. The revisions are accordingly dismissed. The trial Court shall however frame separate issues on the various questions that may be raised by the petitioners, in their written-statements. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.07-07-2011. Note: L.R copy to be marked. (B/O) KO [I.A.Nos.2261 and 2262 individually with a prayer to reject the plaint. Through separate, but similar orders, the trial Court dismissed the same. Hence, these revisions]. [At affidavit extract [In the affidavit filed in support of the I.A.No.2262, one stray sentence namely, “apart from the petiton, the suit is also barred by limitation was added.] book page 94] [1] (2005) 7 SCC 510 [2] 2008 (4) ALD 24 (SC) [3] (2008) 11 SCC 753