The High Court of Madhya Pradesh Bench at Gwalior CR-412-2021 [Gajendra Singh & Anr. Vs. Dara Singh & Ors.]

Gwalior, Dated:07/01/ 2022 Shri Upendra Yadav, learned counsel for the petitioners.

Shri Bhagwan Das Mahor, learned counsel for the respondents No. 1 to 04.

1. This revision petition has been filed against the order dated 26.07.2021 passed by 3^rd Civil Judge Class-II, Ashoknagar (M.P.) in Civil Suit No.R.C.S.A 99/2019, whereby the application filed by petitioners (defendants) under Order 7 Rule 11 CPC seeking dismissal of the suit on basis of res judiciata has been dismissed

2. Brief facts are that the respondents No.01 & 2 herein have filed a civil suit for declaration and injunction against the petitioner- defendant Gajendra Singh and their mother Bhagwati Devi. Interestingly, the sisters of the plaintiffs have been impleaded as proforma defendants. The plaintiffs have sought relief not only for them but also in favour of their mother i.e. defendant in the suit and the sisters who have been impleaded as proforma respondents. The contesting defendant- petitioner herein has filed an application under Order 7 Rule 11 CPC seeking dismissal of the suit with the assertion that earlier he filed a civil suit on 1.11.1999 against the mother & uncle of the plaintiffs for the same subject matter which was decreed in his favour. The decree has attained finality up to second appeal in the High Court. He has obtained the possession of the suit property in execution of the decree in the former suit. This subsequent suit has been filed by the sons of the defendant Bhagwatibai who had already lost the case in former suit. Thus, the suit is hit by res judicata and deserves to be dismissed. The application of the petitioner has been dismissed by the trial court with the finding that issue relates to mixed question of facts and law which shall be decided after recording the evidence. Being aggrieved of the order of the trial court, this petition has been filed.

3. Heard learned counsel for both the sides and perused the material available on record.

4. Learned counsel for petitioner while reiterating the facts of the application has submitted that undisputedly, the subject matter in former suit and this subsequent suit is the same. Former suit was contested by the mother of the plaintiffs up to High Court. The plaintiffs were/are well aware of the former litigation proceedings. The possession has been taken by the petitioner in execution of the decree in former suit. On the panchnama of handing over the possession, the plaintiff Dara Singh has put his signatures with the assurance that he shall not interfere in the possession of present petitioner. The decree in former suit is binding upon the plaintiffs and the proforma respondents. The plaintiffs have sought relief in favour of their mother who has been mischievously made defendant in the suit. This shows the collusion of the parties only to frustrate the earlier judgement and decree. All factual aspects are very much clear and undisputed in view of the copies of the pleadings and judgements of former suit still the learned trial court has illegally dismissed the application. The impugned order deserves to be quashed and set aside.

5. Learned counsel for the respondents-plaintiffs has contended that present plaintiffs and proforma respondents were not the party in the former suit, hence, the decree in former suit is not binding upon them. The present suit may be dismissed with regard to the defendant No.02., i.e. mother of the plaintiffs who was party in the former suit, but whole suit cannot be dismissed on the basis of res judicata. The petitioner filed former suit against the mother of the plaintiffs and elder brother of their deceased father Halkuram, but during the pendency of the suit, Halkuram died but his legal representatives were not taken on record. Learned trial court has rightly dismissed the application of the petitioners. The petition sans merits and deserves to be dismissed.

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