Validity of petition seeking rejection of plaint under Order 7 Rule 11 of CPC requires valid reasons and timely invocation.

JUDGMENT :

(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India to set aside the Fair and Final order dated 25.10.2019 made in I.A.No.805 of 2014 in O.S.No.2 of 1994 on the file of Sub Court, Sankari.)

1. The present Civil Revision Petition has been filed against the order dated 25.10.2019 in I.A.No.805 of 2014 in O.S.No.2 of 1994 on the file of Sub Court, Sankari by raising various grounds.

2. The case of the petitioner, who is the 8th defendant in the above suit is that he is the auction purchaser of the property in Survey No. 301/1B of Nedunkulam Village bearing an extent of 8.20 acres. The petitioner has taken possession of the suit property and enjoying the same, in which he already sold an extent of 6 acres out of the said 8.20 acres to one Govindaraj, son of Karuppana Gounder of Nedunkulam village through registered sale deeds dated 15.12.2003 and 05.01.2004. The said property was purchased in the court auction and the respondents/plaintiffs had filed a petition on 06.10.1986 under Order 21 Rule 90 of Code of Civil Procedure impeaching the said court auction held on 02.01.1986. The said petition was dismissed on 24.12.1993 and they has filed the present suit without filing an appeal against the order in R.E.A.No.18 of 1988 dated 24.12.1993 and the said plaint has to be rejected, as it falls under resjudicata as per order 7 Rule 11 (d) of Civil Procedure Code and there was a delay in filing the petition and hence prayed for allowing the petition.

3. The respondents/plaintiffs had filed a counter denying all the said averments and stated that there is no merit in the said averments and it is only a false, frivolous, vexatious petition and by order dated 24.12.1993 in REA No.18/88, the learned District Munsif Court, Sankari has held that the petitioner has not produced any oral or documentary evidence to substantiate hercase, hence the same was dismissed. Since the application to set aside the sale was dismissed, the petitioner was forced to file the suit for partition. The only remedy available to the respondent/plaintiff was to file a suit for partition for separate possession seeking for 1/4th share. In consequence, the petitioner filed I.A.No.805 of 2014 under Order 7 Rule 11 CPC to reject the plaint. The said petition filed by the petitioner/ 8th defendant was considered and the court below had dismissed the application on the ground that reading of the provision itself shown that the plea of res-judicata is not granted for rejection of plaint. The provision under Order 7 Rule 11 CPC is not attracted and also the application has been filed at the belated stage and the application does not warrant any merits and the same was dismissed. As the suit is pending from the year 1994, the court below ordered to bear their respective costs. Challenging the same, the present Civil Revision Petition is filed.

4. Heard the learned counsel for both the parties and perused the materials available on record.

5. It is seen that the petition filed under Order 7 Rule 11 of Civil Procedure Code, which was dismissed by the learned Subordinate Judge, Sankari is challenged in this Revision Petition. The petitioner, who is the 8th defendant in O.S.No.2 of 1994, had purchased 8.20 acres of land by way of auction purchase covered in Survey No.301/1B of Nedunkulam village and claims to have taken possession and in enjoyment of the property and had made mutations to the entire 8.20 acres. The petitioner also further claims that he has sold 6 acres out of 8.20 acres, as early as 15.12.2003 and 05.01.2004.

6. It is further submitted by the learned counsel for the petitioner that having taken the property in court auction, the respondent/Rajalakshmi (since deceased, respondents were impleaded) has filed a petition as early as 06.10.1986 under Order 21 Rule 90 CPC seeking impeachment of the court auction sale that held on 02.01.1986, in which the revision petitioner was also contested and the petition was dismissed on m