The central legal point established in the judgment is the duty of the court to recall and set aside decrees obtained by fraud or misrepresentation, and the power of the court to reject a plaint under Order 7 Rule 11 and Section 151 of the Code of Civil Procedure.

JUDGMENT

Soumen Sen, J. - This revisional application is arising out of an order passed by the learned Additional Civil Judge, Junior Division at Port Blair in connection with an application filed under section 151 of the Code of Civil Procedure read with section 11 of Code of Civil Procedure filed by the defendants in Other Suit No. 94 of 2017.

2. Upon consideration of the submissions made by the learned counsel for the parties, the learned Single Judge framed the following preliminary issue regarding maintainability of the present suit:-

" Whether the maintainability of the present suit is barred under the provision of the section 11 of CPC r.w.s Order 22 Rule 5 of CPC r.w.s Order 21 Rule 101 of CPC?"

3. The learned trial Court dismissed the suit on the ground that the issue raised in the present suit has been finally and conclusively decided in a previously instituted suit filed by the defendants against the plaintiffs/petitioners and in view of such clear finding in favour of the defendants/opposite parties the continuation of the suit is not permissible.

4. In order to appreciate the finding of the learned trial Court, it is necessary to refer to relevant pleadings in the earlier suit and in the present suit and on consideration of such relevant facts to take a decision as to whether the continuation of the present suit would be an abuse of the process of law.

5. The father of the defendant Nos. 1 and 2 filed a Title Suit bearing TS No. 50 of 2002 before the Civil Court against Kunda Rao (Husband of the plaintiff No. 1 and father of the plaintiff Nos. 2 to 6) for declaration of title and recovery of possession. The said suit was decreed in favour of the plaintiff i.e. the father of the defendant Nos. 1 and 2 by a decree and judgment dated 28th June, 2010. The plaintiffs in the present suit namely the revisionist in this revisional application preferred an appeal before the first appellate court challenging the decree and judgment of the Civil Judge, Junior Division. The first appellate court allowed the appeal by a judgment dated 31st August, 2016 and remanded the matter back to the trial Court.

6. The defendant Nos. 1 and 2 herein filed a second appeal before the Hon'ble High Court bearing FMA No. 001 of 2017. The said second appeal was allowed and the first appellate court was directed to dispose of the appeal on merits rather than remanding the matter to the trial Court. The first appellate court on remand by a judgment dated 14th September, 2017 affirmed the order of the trial Court and directed the plaintiffs herein to handover vacant possession of the suit land to the defendant Nos. 1 and 2 within ninety days from the date of passing of the judgment. This order of the first appellate court was challenged by the plaintiffs herein in SAT No. 011 of 2017. The second appeal was not admitted and was dismissed on 06th November, 2017 by reason of the said dismissal the appellate decree became enforceable. The plaintiffs/petitioners realising that dispossession from the property is eminent filed the Other Suit No. 94 of 2017 for setting aside of the judgment/decree dated 28th June, 2010 passed in the Title Suit No. 55 of 2007 having obtain by fraud and misrepresentation by the defendants jointly and severally.

7. By a clever artful drafting the plaintiffs try to create an illusion of cause of action for the present suit in paragraph Nos. 14 and 15 of the plaint which is reproduced below:-

"14. That after dismissal of Second Appeal Plaintiffs on 24.10.2017 came to know that defendants No.1 and 2 are not the daughter of the late K.R. Ganesh. They came to know that no "WILL" was ever executed by K.R. Ganesh on this basis whereof in Land record the name of the defendant no. 1 and 2 stands recorded which this considered to be valid piece of evidence to declare ownership of defendant No.1 and 2 over the suit land in Title Suit R.No.55 of 2007. Only on 24.10. 2017 the plaintiffs learnt the act of defendants in playing fraud by proc