A litigant cannot benefit from concealing material facts; res-judicata applies when the same issue has been previously adjudicated, and suits barred by limitation are not maintainable.

JUDGMENT :

Deepak Gupta, J.

1. In civil suit N: 20 of 2014, an application under Order 7 Rule 11 CPC for rejection of the plaint, moved by the defendant No. 6 - Som Nath (appellant herein), was accepted by Ld. Civil Judge (Jr Divn), Ludhiana vide order dated 09.09.2016. However, the appeal (CA N: 88 of 2017) filed by plaintiff - Jaspal Kaur (respondent No. 1 herein), has been allowed by the Ld. Addl. District Judge, Ludhiana, by way of the impugned order dated 09.12.2021, thus, dismissing the application under Order 7 Rule 11 CPC. It is against this reversal that defendant N: 6 of the suit has approached this Court by filing the present second appeal against order.

2. The facts of the case in brief are as under:

2.1 In the suit filed by plaintiff – Jaspal Kaur (respondent No. 1), it was claimed that she was the owner in possession of the suit property detailed in head note of the plaint; that her father Gurdial Singh had purchased the property in dispute from defendant No. 1 Balwant Singh (respondent No. 2 herein) and had paid the entire sale consideration. However, her father had gone to Amarnath Yatra and did not return, due to which, defendant No. 1 through defendant No. 2 Harchand (respondent No. 3 herein) executed and got registered sale deed bearing Vasika No. 2369 dated 19.09.1995 of the property in question in favour of the plaintiff. However, inadvertently, the name of the vendee was mentioned as Makhan Singh son of Gurdial Singh, instead of Jaspal Kaur wife of Makhan Singh. Taking undue advantage of this wrong entry in the sale deed and in the revenue record, defendant No. 3 – Makhan Singh (respondent No. 4 herein) started threatening the plaintiff to dispose of the property to somebody else. Plaintiff requested the defendants No. 1 and 2 to get the sale deed corrected by incorporating her name but they refused. Plaintiff further pleaded that cause of action in her favour arose, when her name was wrongly not mentioned in the sale deed and also later on, when defendants refused to get corrected the sale deed to incorporate her name as vendee of the suit property. This suit was filed by the plaintiff on 15.07.2014 seeking necessary declaration.

2.2 Som Nath (present appellant), who was not impleaded as a defendant to the suit, moved an application under Order 1 Rule 10 CPC to implead him as a party. His application was allowed vide order dated 15.12.2014 (Annexure P5) and then he was impleaded as defendant N: 6.

2.3.1 He (Somnath) then moved an application under Order 7 Rule 11 CPC (Annexure P6) for rejecting the plaint, by pleading that suit had been filed in collusion with defendants No. 1 to 3 and by concealing the material facts from the Court. Defendant No. 3 – Makhan Singh was none else than the husband of the plaintiff, who being the owner in possession of the suit property, had entered into an agreement to sell dated 02.08.1997 with the applicant- defendant- Som Nath. As said Makhan Singh failed to perform his part of contract, Civil suit No. 270 of 1998 for possession by way of specific performance was filed by said applicant. After hotly contesting, the suit was decreed on 10.08.2009 vide judgment Annexure P1. In the execution filed by the applicant - decree holder of Civil Suit No. 270 of 1998, sale deed bearing Vasika No. 24945 dated 11.03. 2013 was executed and registered in his favour and warrant of possession was issued. Police help was ordered to be provided for delivering the possession, when the applicant along with other family members started creating hindrance in delivering the possession.

2.3.2 Applicant- defendant No. 6- Som Nath further pleaded that earlier plaintiff had filed a Civil Suit No. 308 dated 15.12.1998, against defendants No. 2 and 3 [Harchand Singh and Makhan Singh], in which, the present applicant was not impleaded as a party and, therefore, his application under Order 1 Rule 10 CPC to be impleaded as a party was accepted. In that suit filed in 1998 by plaintiff- Jaspal Kaur, defendant ap