IN THE HIGH COURT FOR THE STATES OF PUNJAB
AND HARYANA AT CHANDIGARH.
C.R. No. 5456 of 2005. [O&M]
Date of Decision: 29th July, 2009.
Ramesh Kumar Verma Petitioner
through
Mr. S.C.Nagpal, Advocate
Versus
Sanjokta & Ors. Respondents
through None
CORAM:
HON’BLE MR. JUSTICE SURYA KANT.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
SURYA KANT, J. [ORAL)
This Revision Petition is directed against the order dated
17.9.2005 passed by the Additional Civil Judge [Senior Division],
Ropar whereby the petitioner’s application under Order 7 Rule 11[A}
and [D] read with Section 151 of the Code of Civil Procedure for
rejection of the plaint has been dismissed.
The respondent – plaintiffs have filed a suit for partition.
The petitioner – defendant moved an application for rejection of the
plaint primarily on the ground that the respondent – plaintiffs had
earlier filed a suit claiming similar relief which was dismissed as
withdrawn having been compromised without liberty to file a fresh suit
on the same cause of action. The petitioner accordingly pleaded that
the second suit on the same cause of action was barred by Order 2
Rule 2 read with Order 23 Rule 1 CPC and that non-disclosure of the
previous suit is fatal to the maintainability of the present suit.
The trial Court, however, has dismissed the application
after observing that since the property in dispute has not been
partitioned by the Court and the earlier suit was withdrawn on the
basis of a compromise which allegedly took place outside the Court,
the plaint can not be rejected on the ground that it does not disclose
any cause of action.
I have heard learned counsel for the petitioner at some
length and perused the impugned order. In my considered view, the
trial Court appears to be right in observing that the objections raised
by the petitioner at this stage, may not be sufficient to conclude that
the plaint does not disclose any cause of action and warrants
rejection under Order 7 Rule 11 CPC. However, the question as to
whether the second suit is barred by any law for the time being in
force, constitutes a preliminary issue in terms of Order 14 Rule 2[2]
[b] CPC which would require the trial Court to decide the same firstly
before it proceeds to adjudicate the controversy on merits.
Consequently, and for the reasons afore-stated, this
revision petition is allowed to the extent that though the plaint can not
be rejected under Order 7 Rule 11 CPC, the trial Court shall frame a
preliminary issue on the objections raised by the petitioner and
proceed to decide the same, in accordance with the procedure laid
down under Order 14 Rule 2 CPC.
Disposed of. Dasti
July 29, 2009. ( SURYA KANT )
dinesh JUDGE