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IN THE HIGH COURT OF PATNA
Mungeshwar Sahoo, J.
Hriday Narayan Kumar & Ors. - Appellants
Versus
Smt. Jaya Singh & Ors. - Respondents
Civil Miscellaneous Jurisdiction No. 621 of 2016
Decided On : 19-9-2016
Order 7 Rule 11 (a) C.P.C. - Maintainability of Application under Order 9 Rule 13 C.P.C. - Section 146 C.P.C. - AIR 1953 Supreme Court 487 and 1956 BLJ 602 - Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success I - P.V. Guru Raj Reddy and another v. P. Neeradha Reddy and others - Ram Rameshwari Devi and others v. Nirmala Devi and others - U.P. State Road Transport Corporation v. State of U.P. and another
Fact of the Case:
The petitioner filed an application under Order 7 Rule 11 (a) C.P.C. for rejection of the plaint on the ground of incomplete cause of action. The respondent No.1, Smt. Jaya Singh, filed an application under Order 9 Rule 13 C.P.C. for setting aside an ex parte decree against defendant No.1, Upendra Kumar, claiming to be his power of attorney holder and purchaser. The petitioner contended that the application under Order 9 Rule 13 C.P.C. at the instance of a third party is not maintainable. The respondent argued that the application is not frivolous and vexatious and that the petitioner is adopting dilatory tactics to delay the proceedings.
Finding of the Court:
The Court found that the application under Order 9 Rule 13 C.P.C. at the instance of the respondent No.1 was maintainable, as confirmed by the Supreme Court. The Court also held that the petitioner's argument of incomplete cause of action was misconceived. The Court noted the petitioner's dilatory tactics and misuse of the court process to delay the proceedings.
Issues: The issues involved the maintainability of the application under Order 9 Rule 13 C.P.C. at the instance of a third party, the rejection of the plaint under Order 7 Rule 11 (a) C.P.C., and the petitioner's conduct in delaying the proceedings.
Ratio Decidendi: The Court's decision was influenced by the legal provisions of Order 9 Rule 13 C.P.C., Section 146 C.P.C., and the interpretations provided in relevant case laws. The Court emphasized that the application under Order 9 Rule 13 C.P.C. was maintainable and that the petitioner's argument of incomplete cause of action was misconceived. The Court also highlighted the misuse of court process by the petitioner to delay the proceedings.
Final Decision: The civil miscellaneous case was dismissed with a cost of Rs.10,000/- to be paid by the petitioner to the respondent No.1, emphasizing the need to control dilatory tactics and misuse of the court process.
Mungeshwar Sahoo, J.
Heard the learned counsel for the petitioners and the learned counsel for the respondents.
2. Perused the impugned order dated 02.07.2016 passed by Sub Judge III, Buxar in Miscellaneous Case No. 11 of 2010 whereby the learned Court below has rejected the application filed by the present petitioner under Order 7, Rule 11 (a) C.P.C.
3. It appears that partition suit was filed by the present petitioner. The suit was decreed ex parte against defendant No.1. Thereafter, the respondent No.1 herein Smt. Jaya Singh filed the application under Order 9, Rule 13 C.P.C. before the Court below for setting aside the ex parte decree against defendant No.1, Upendra Kumar on the ground that she is the power of attorney holder of defendant No.1 and the judgment and decree has been passed against said Upendra Kumar.
4. This petitioner filed application before the Court below for rejection of the said miscellaneous case on the ground that it is not maintainable at the instance of Jaya Singh who is purchaser from Upendra Kumar, defendant No.1. The said application was rejected against which CWJC No. 12196 of 2014 was filed. This Court in CWJC No. 12196 of 2014 by terms of order dated 17.08.2015 held that the application under Order 9, Rule 13 C.P.C. is maintainable at the instance of Jaya Singh who is power of attorney holder and even if she is purchaser then also according to Section 146 C.P.C. she is claiming through the defendant No.1 and accordingly, dismissed the said writ application filed under Article 227 of the Constitution of India.
5. The petitioners thereafter filed petition for special leave to appeal No.649 of 2016 before the Supreme Court. The Supreme Court by terms of order dated 18.01.2016 held that we do not find any merit in this petition and accordingly, the petition for special leave was dismissed. Thereafter, this application under Order 7, Rule 11 (a) C.P.C. has been filed by the present petitioner praying for rejection of the plaint on the ground that there is no complete cause of action for proceeding in this application under Order 9, Rule 13 C.P.C. The Court below by the impugned order has rejected this application holding that this application regarding maintainability/rejection of the application under Order 9, Rule 13 C.P.C. has already been rejected earlier, therefore, the application is rejected.
6. The learned counsel for the petitioner submitted that the application under Order 9, Rule 13 C.P.C. at the instance of a third party is not maintainable. Smt. Jaya Singh is a purchaser. The defendant No.1 has not filed this application for setting aside ex parte decree, as such, the miscellaneous case itself is not maintainable. The photocopies of the power of attorney has been filed by the respondent No.1 which is not at all admissible and in fact, the respondent No.1, Smt. Jaya Singh, who is a purchaser, has only option to file a suit for partition in view of the decision of the Supreme Court, AIR 1953 Supreme Court 487 and 1956 BLJ 602.
7. On the other hand, the learned counsel for the respondent No.1 submitted that this application is frivolous and vexatious application and in fact, the same has been filed by the petitioner only to delay the disposal of the miscellaneous case filed by the respondent No.1 under Order 9, Rule 13 C.P.C. Same matter is being reiterated again and again only with a view to put hindrances in the disposal of the proceeding under Order 9, Rule 13 C.P.C. The learned counsel further submitted that when this matter has already been rejected earlier upto the Supreme Court, the same shall operate as res-judicata again in the proceeding as it is settled principles of law that an order passed at one stage shall operate as res-judicata in the same proceeding in subsequent stage also. According to the learned counsel, the application filed by the petitioner is to cause delay and for causing delay, the petitioner is adopting dilatory tactics by abusing the process of the Court. The
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