JUDGMENT :

Pankaj Jain, J. (Oral) 

1. Prayer is for setting aside order dated 10.07.2024 passed by learned Civil Judge (Junior Division), Patiala, whereby application under Order 7 Rule 11 CPC filed by the petitioner/defendant No.1 seeking rejection of the plaint has been dismissed.

2. Plaintiff filed a suit for declaration claiming that his father namely Som Nath Kaushal is missing since 11.10.2017. The General Power of Attorney dated 15.03.2011 executed by Som Nath Kaushal in favour of defendant No.1 and the sale deeds executed by defendant No.1 acting as Power of Attorney of Som Nath Kaushal are result of fraud and are forged documents. Further prayer was for grant of permanent injunction restraining the defendants from alienating and transferring the property as described under the head-note of the plaint. Further defendant No.1 filed an application under Order 7 Rule 11 CPC claiming that the suit was filed before the Court which has no jurisdiction to try and entertain the same as the properties are situated within the jurisdiction of Sub-Divisional Courts at Rajpura and at Ambala and thus, Court at Patiala has no jurisdiction to try the suit.

3. Further it was claimed that Som Nath Kaushal himself earlier filed a petition under the Maintenance and Welfare of Parents and Senior Citizenship Act, 2007, which already stands decided by a forum of competent jurisdiction vide order dated 27.04.2017 on the basis of compromise between the parties and thus, the present suit was barred by res judicata. Further ground pleaded in the application was with respect to deficiency in the Court fee. It was claimed that the plaintiff has challenged the sale deeds and has not affixed the ad volorem Court fee on the value of the property. Trial Court vide impugned order dismissed the application holding that the issue of jurisdiction cannot invoke the jurisdiction of claim. So far as the plea of res judicata is concerned, the same being pure question of fact, cannot be determined without there being evidence on the record. So far as deficiency in the Court fee is concerned, trial Court opined that Power of Attroney has been challenged on the ground of fraud. Plaintiff is not executant of the sale deed and has not claimed possession thus, he was not required to pay ad valorem Court fee.

4. Learned counsel for the petitioner while assailing the impugned order has drawn attention of this Court to the application dated 25.05.2022, placed on record as Annexure P-9, whereby the plaintiff himself admitted that the suit has been filed before the Court, which had no jurisdiction to try the same. Mr. Mathur further submits that from the reading of the plaint in its entirety, it is evident that plaintiff is seeking cancellation of the sale deeds and merely by clever drafting, he cannot be blamed to pay ad valorem Court fee. He further submits that in view of the fact that Som Nath Kaushal during his life time challenged the sale deeds and the Power of Attorney invoking provisions of Maintenance and Welfare of Parents and Senior Citizenship Act, 2007, before the competent authority and the matter having been compromised, the present suit would be barred by principle of res judicata.

5. I have heard learned counsel for the petitioner and carefully gone through the record.

6. So far as the plea with respect to the suit being barred by res judicata is concerned, I do not find any reason to interfere in the findings of the trial Court. It is that doctrine of res judicata is pure question of fact and the same cannot be ascertained at a later stage of the suit. It is only after both the parties have adduced their evidence, the Court can ascertain whether suit is barred by res judicata or not. Otherwise also, in order to decide an application under Order 7 Rule 11 CPC, the Court has to evaluate the plaint only. In whole of the plaint, there is no such averment from which it can be held that the suit is barred by res judicata. Reference can be made to Srihari Hanumanda