Municipal Corporation, Ludhiana vs Satpal Puri

Paramjeet Singh, J.—Instant civil revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 25.07.2013 (Annexure P-6) passed by learned Civil Judge (Jr. Divn.), Ludhiana whereby application u/s 3 of the Limitation Act read with Order 7 Rule 11(d) of the Code of Civil Procedure, 1908 (in short "the Code") and Section 151 of the Code, moved by the petitioner-defendant for rejection/dismissal of the plaint has been rejected. I have heard learned counsel for the petitioner and perused the record.

Learned counsel for the petitioner has contended that the suit is barred by limitation as it has been admitted by the respondent in para 10 of plaint and in application u/s 33 of the Indian Evidence Act, 1872 (in short "the Act") that earlier suit titled ''S.P. Puri vs. Rajinder Kapoor and others'', was filed by the respondent seeking the relief of permanent injunction with respect to same subject matter. The cause of action for declaration sought in present suit was available to respondent at the time of filing earlier suit. Since the present suit is filed after six and half years of filing of previous suit, the same is barred by limitation. The learned counsel has further contended that once a suit was earlier filed on same subject matter, the respondent-plaintiff was required to raise all the pleas in that suit and it cannot take pleas in parts by filing successive suits. The principle of Order 2 Rule 2 of the Code and the principle of Section 11 of the Code apply to the present suit. Therefore, the plaint is liable to be rejected.

I have considered the contentions of learned counsel for the petitioner.

Earlier suit was filed by the plaintiff seeking the relief of permanent injunction. The judgment dated 19.09.2006 passed in previously instituted suit by the plaintiff has been placed on record in which following issues were framed:

Whether the plaintiff is entitled to the permanent injunction as prayed for? OPP

Whether the suit of the plaintiff is not maintainable in the present form? OPD

Whether the plaintiff has no locus standi to file the present suit? OPD

Whether the plaintiff has not come to the Court with clean hands? OPD

Relief.

The present suit has been filed seeking the relief of declaration, mandatory injunction and permanent injunction. Since the declaration is an independent right, the petitioner can agitate the same in accordance with law which will ultimately be decided keeping in view the pleadings and evidence led by the respective parties.

So far as the application under Order 7 Rule 11 of the Code for rejection of plaint is concerned, I do not find any ground for allowing the said application; the impugned order dismissing the said application does not warrant interference of this Court. However, findings of the trial Court with regard to non-applicability of principles of res judicata and Order 2 Rule 2 of the Code are unwarranted. The findings with regard to these issues can only be recorded after taking into consideration the pleadings and evidence that may be led by the respective parties. Moreover, the Hon''ble Apex Court in Isher Singh Vs. Sarwan Singh and Others, and Mohd. S. Labbai vs. Mohd. Hanifa, AIR 1965 SC 1559 has specifically held that while deciding issue of res judicata, pleadings of previous suit including plaint as well as written statement and the findings recorded are to be taken into consideration. No reference has been made in the impugned order to the pleadings of previous suit. Similarly, finding has been recorded with regard to non-applicability of Order 2 Rule 2 of the Code, but no opportunity to lead evidence has been granted.

In view of above, the finding of trial Court with regard to non-applicability of principles of res judicata and Order 2 Rule 2 of the Code are hereby set aside. If at all the issues with regard to res judicata and applicability of Order 2 Rule 2 of the Code are framed in the present suit, the same shall be decided independently without being influenced with the observations made in the impugned order. Disposed of in the aforementioned terms.