JUDGMENT

U.C. Dhyani, J. (Oral)

By means of present writ petition, the petitioner seeks writ in the nature of certiorari quashing the impugned orders dated 26.10.2016 and 19.04.2017 (Annexures no. 13 and 15 to the writ petition), and also to allow the application dated 06.08.2016 filed by the petitioner under Order 7 Rule 11 C.P.C. (Annexure 11 to the writ petition).

2. Mehboob Islam Ansari, predecessor-in-interest of respondent nos. 1 to 4, filed a civil suit seeking permanent prohibitory injunction against the defendant petitioner in the court of civil Judge (Sr. Div.), Almora in the year 1997. The said suit was dismissed with costs, vide order dated 01.05.2000. Aggrieved against the order passed in O.S. no. 52 of 1997, the plaintiff filed a regular civil appeal, being civil appeal no. 09 of 2000, which was dismissed, vide order dated 28.09.2002. Aggrieved against the same, plaintiff-appellant filed a second appeal before the co-ordinate Bench of this Court in the year 2002, which was dismissed for want of prosecution, vide order dated 28.11.2007. When the plaintiff-appellant tried to restore the second appeal, another co-ordinate Bench of this Court, vide order dated 02.08.2014, refused to condone the delay and hold that there are concurrent findings of the trial court as well as the first appellate court based on sound reasoning. Thus, even if it be conceded for the sake of argument, that the second appellate court did not touch the second appeal on merits, the fact remains that first appeal was decided on merits against the plaintiff-appellants (respondent nos. 1 to 4). The dispute between the parties has, therefore, attained finality.

3. It is in respect of the same piece of land, which was subject matter of adjudication in O.S. no. 52 of 1997. The details of suit property have been mentioned at the foot of the plaint of O.S. no. 52 of 1997.

4. The same plaintiff, who is now represented by respondent nos. 1 to 4 in present writ petition, filed a civil suit between the same defendants for declaration and permanent prohibitory injunction in respect of the same land, i.e., Plot no. 825, situated in Mohalla Niyajganj, Patti Khas Praja, Tehsil and District Almora. The earlier suit was filed for injunction and the subsequent suit has been filed for declaration as well as for permanent prohibitory injunction in respect of the same land. It is between the same parties. It is the submission of learned counsel for respondent nos. 1 to 4 that earlier suit was in respect of 5 Mutthi of land and the subsequent suit was in respect of 20 Mutthi of land, but the fact remains that it is in respect of same land, being khasra no. 825.

5. The petitioner filed an application under Order 7 Rule 11 CPC for rejection of plaint, which did not find favour with the trial court. Aggrieved against the same, petitioner filed a civil revision, which too was dismissed.

6. Section 11 CPC provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

7. Order 7 Rule 11 CPC provides that the plaint shall be rejected in the cases enumerated in Rule 11 CPC. One of which is – where the suit appears from the statement in the plaint to be barred by any law.

8. In the instant case, the suit appears from the statement in the plaint to be barred by Section 11 CPC, inasmuch as the issue in the matter is directly and substantially an issue in a former suit between the parties under whom they claim, litigating under the same title, in a court competent to try such subsequent suit and has been heard and finally decided by such Court.

9. Learned counsel for respondent nos. 1 to 4 relied upon decis