The dismissal of a prior suit for non-prosecution does not invoke res judicata against a subsequent suit; limitation and other defenses must be resolved during trial.

ORDER :

T.Vinod Kumar, J.

1. The present Civil Revision Petition is filed aggrieved by the order dated 10.02.2023 in I.A. No. 835 of 2022 in O.S.No. 222 of 2021) passed by the Principal Junior Civil Judge, Medchal-Malkajgiri, at Medchal.

2. Heard Sri. Vedula Srinivas, learned Senior Counsel appearing on behalf of M/s. Vedula Chitralekha, learned Counsel for the petitioners, Sri. Rakesh Sanghi learned Counsel for the respondent No. 1 and perused the record.

3. The Petitioners herein are the defendant No. 19 & 31 in the suit filed by the Respondent No.1 herein for partition and separate possession of the suit scheduled property.

4. While so, the petitioners herein filed the underlying interlocutory application seeking rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (for short ‘the Code’).

5. The Trial Court on hearing the parties, held that as the plaint clearly discloses cause of action and right to sue to file the suit; and that since the question of the claims being barred by limitation is mixed a question of fact and law, it has to be decided through trial. On the plea of suppression raised by the petitioners herein, the Court below held that whether the same was a material fact having a bearing on the merits of the respondent No.1’s case could only be decided through a trial. Holding so, the Court below dismissed the interlocutory application.

6. The present revision is preferred aggrieved by the same.

7. Learned senior counsel appearing for the petitioners herein submits that the respondent No.1 herein had initially instituted a suit registered as O.S.No. 78 of 2014 (Old O.S. No. 821 of 2009) on the file of the Senior Civil Judge, Medchal seeking partition of the suit scheduled property in the underlying suit. It is further submitted that the said suit was dismissed for non-prosecution vide order dated 30.06.2017.

8. Learned senior counsel contends that the Court below erred in dismissing the underlying application on two counts: Firstly, as the subject matter of the suit was directly in issue in O.S. No. 78 of 2014 which was dismissed for non-prosecution, the present suit was barred by law by virtue of res judicata. Secondly, the cause of action for instituting the underlying suit is shown as accruing in the month of January – February, 2021, whereas, the respondent No.1 herein in her previous suit i.e., O.S. No. 78 of 2014 had shown her cause of action as 01.03.2009. It is contended that different causes of action cannot be pleaded to seek partition of the very same suit scheduled property, and that limitation begins to run from the first date when right to sue accrued. Thus, it is contended that the suit is hopelessly barred by limitation.

9. In support of the petitioners contentions reliance is placed on the decision of the Hon’ble Supreme Court in Krishna Pillai Rajasekharan Nair (D) by L.Rs Vs. Padmanabha Pillai (D) by L.Rs & Ors., [ AIR 2004 SC 1206 ], and T. Arivandandam Vs. T. V. Satyapal & Anr, [ (1977) 4 SCC 467 ]

10. Per contra, learned counsel for the respondent No.1 herein while accepting that an earlier suit numbered as O.S.No. 78 of 2014 was instituted by the respondent No.1 herein, the same was only filed against the deceased father of the defendants No.1 to 3, deceased mother of defendant No. 4, deceased mother of Defendants No. 13 to 18, the defendant No. 5 in the underlying suit and against one Mr. M. Venugopal Reddy i.e., the predecessor in title of the petitioners herein. It is further submitted that though the said suit was dismissed for non-prosecution, the principle of res judicata would not operate as there was no adjudica