IMPORTANT POINT
A subsequent suit is maintainable despite a prior dismissal if the pleadings support it, and the court must consider the plaint's averments alone under Order 7 Rule 11 CPC.

JUDGMENT :

Mrs. Ritu Tagore, J.

This revision is directed against the order dated 16.05.2019 (Annexure P-8), whereby an application (Annexure P-6), moved by the petitioner/defendant No.1, seeking rejection of the plaint in the case (Annexure P-5) titled ‘Satnam Singh vs. Kamalpreet Singh and others’, filed by respondent No.1, has been dismissed.

2. Learned counsel for the petitioner submits that learned trial Court wrongly dismissed the application(Annexure P-6) moved by the petitioner, without considering the settled position of law that subsequent suit on same cause of action is not maintainable after dismissal of the earlier suit under Order 9 Rule 8 CPC being barred by the provisions of Order 9 Rule 9 CPC.

3. Learned counsel contends that respondent No.1/plaintiff had earlier filed a civil suit (Annexure P-1), seeking a declaration that the suit property detailed therein was a joint Hindu coparcenary property between the parties and gift deed dated 12.05.1959, Will dated 16.03.1959 made in favour of Ajaib Singh, and gift deed dated 11.04.2000, and subsequent entries in revenue record based on these documents as null and void. It is stated that the aforesaid case was fixed for cross-examination of the witnesses of the plaintiff, when it was dismissed in default under Order 9 Rule 8 CPC vide order dated 08.09.2005 (Annexure P-4). It is stated that the said suit was never revived thereafter, and the order dated 08.09.2005 (Annexure P-4) attained finality. Learned counsel submits that, according to the settled provisions of law, subsequent suit on same cause of action, once dismissed for non-prosecution under Order 9 Rule 8 CPC, is barred under the provisions of under Order 9 Rule 9 CPC, which clearly falls under Order 7 Rule 11 (d) CPC. It is stated that the learned trial Court wrongly relied upon the judgment titled ‘Rajpal Kaur alias Kamalpreet Kaur vs. Jagsir Singh and another’ 2014 (82) R.C.R. (Civil) 249, which is clearly distinguishable from the facts of the present case. Therefore, it is urged that the impugned order is indefensible in the eyes of law and is liable to be set aside. It is further stated that respondent No.1/plaintiff did not disclose the outcome of the earlier suit and on the account also, suit is not maintainable for concealment of material facts. To support his arguments, he referred to the authorities ‘Smt. Parkash Kumari vs. Balwant Singh and others’ 2005 (2) CivCC 299, ‘Krishan Kumar and others vs. Smt. Sheela and others’ 2016 (2) CivCC 71 and ‘Tahira Begum vs. Devi Singh’ 2010 (3) CivCC 542.

4. I have heard the learned counsel for the petitioner and have gone through the paper book and is of the considered view that present revision petition deserves to be dismissed for the reasons stated below.

5. Firstly, the petitioner failed to give any cogent reason for the delay in filing the present revision petition under Article 226/227 of the Constitution of India, on 15.07.2024, against the impugned order dated 16.05.2019, except for pleading that petitioner was abroad and, thereafter, because of Covid-19 Pandemic, could not pursue the litigation properly. However, in paragraph No.10 of the paper book, also pleaded that he had filed a revision petition No.2324 of 2021 against the order dated 06.09.2021, passed in the suit. Furthermore, he admits that after completion of the evidence of the respondent No.1/plaintiff on 17.05.2024, he filed the instant revision, after discussing the matter with his counsel. Considering all these aspects, this revision petition needs to be dismissed on account of latches and further lacking a proper and valid explanation.

6. Secondly, it is well established position of law that while deciding an application under Order 7 Rule 11 CPC, the averments of the plaint alone are to be considered and not the defence of the defendant. In this regard, reference can be placed on the judgment of Hon’ble the Supreme Court in ‘Bhau Ram vs. Janak Singh and others’ 2012 (4) R.C.R (Civil) 571, whe