BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 07.07.2023 Delivered on : 01.08.2023 CORAM:

THE HONOURABLE MR.JUSTICE C.KUMARAPPAN C.R.P.(MD)No.49 of 2019 and C.M.P.(MD)No.435 of 2022 K.P.John ... Petitioner / Petitioner / 1^st Defendant Vs.

1.The President, Solavanthan Nainar Tholugai Pallivasal Jamath Committee, Solavanthan Village, Vadipatti Taluk, Madurai District.

2.The Secretary, Solavanthan Nainar Tholugai Pallivasal Jamath Committee, Solavanthan Village,Vadipatti Taluk, Madurai District. ... Respondents / Respondents /Plaintiffs Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order passed in I.A.No.289 of 2015, in W.O.P.No.2 of 2012, dated 16.08.2018, on the file of the Court of the Principal Sub Court, Madurai.

For Petitioner : Mr.M.Venkatesan For Respondents : Mr.P.T.S.Narendravasan

ORDER

The instant Civil Revision Petition has been filed against the order passed in I.A.No.289 of 2015, in W.O.P.No.2 of 2012, dated

16.08.2018, on the file of the Principal Sub Court, Madurai.

2. The revision petitioner is the first defendant and the respondents are the plaintiffs before the trial Court. The revision petitioner filed an application under Order 7 Rule 11 C.P.C for rejection of the W.O.P.No.2 of 2012.

3. For the sake of convenience, the parties are referred according to their litigative status before the trial Court.

4. The brief facts which gives rise to filing of the instant Civil Revision Petition is that, the petitioner has filed an application for rejection of plaint. It appears that the respondents have filed a petition in W.O.P.No.

2 of 2012, for recovery of possession and for declaration. They took a defence that, the Solavanthan Nainar Tholugai Pallivasal, belongs to Wakf Board, and that the petitioner herein should hand over the possession to them. It appears that the second defendant to the W.O.P.No.2 of 2012 filed a suit in O.S.No.283 of 1968 against the father of the petitioner before the District Munsif, Tirumangalam, in respect of the same suit property. The said suit was ultimately dismissed by the District Munsif Court, Tirumangalam.

5. Against which, an appeal was filed by the Tamil Nadu Wakf Board in A.S.No.39 of 1991 and the said first appeal was also dismissed on 06.07.1981. It is also the submission of the petitioner that no second appeal has been filed against the decree and judgment of A.S.No.39 of 1991, and thereby, it reached the finality. It is the submission of the petitioner that, when the earlier suit for the very same relief of recovery of possession in O.S.No.283 of 1968, was dismissed, the present W.O.P.No.2 of 2012 is hit by the principles of res judicata. Therefore, prayed to reject the plaint.

6. However, the respondent filed a counter statement denying the allegations made by the petitioners. According to the respondent, the very principle of res judicata will not be applicable to the instant case as the cause of actions of the two proceedings were different, and it is also the submissions of the respondent that the earlier suit, namely, in O.S.No.283 of 1968 was only in respect of two cents of property, whereas, the instant petition is in respect of 11 cents. Therefore, contended that the present petition is no way hit by res judicata.

7. The learned counsel for the respondent would also submit that, while considering the application under Order 7 Rule 11, the pleadings and the plaint documents alone are to be considered, and that no other document could be considered. Therefore, it is the submission of the petitioner that from reading of the plaint and from the plaint documents, no res judicata could be visualised, and therefore, prayed to dismiss this application.

8. The learned trial Judge after hearing either party, passed an order by dismissing the application, on the finding that the very ground urged by the petitioner does not come within the four corners of Order 7 Rule 11 C.P.C, and has ultimately dismissed this application