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HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Revision Petition No. 29/2018

1.

Girdhari

2.

Babulal

3.

4.

Girdhari

Pooran

All are Sons Of Prabhu, Residents Of Bhuri Bharaj, Tehsil

Kotputli, District Jaipur.

----Petitioners/Defendants

Versus

1. Bimla Devi D/o Phoofiya @ Phulia

2. Mahadi Devi D/o Phoofiya @ Phulia

3. Phoofiya @ Phulia s/o Gopaldad through Mahadi Devi D/o

Phoofiya @ Phulia (Deleted)

All are R/o Bhuri Bharaj, Tehsil Kotputli District Jaipur

----Respondents/Plaintiffs

4. Tehsildar Tehsil Kotputli, District Jaipur

5. Sub-Registrar, Pawta, Tehsil Kotputli, District Jaipur

----Proforma Respondents/Defendants

For Petitioner(s)

:

Mr. Narpat Singh Shekhawat

For Respondent(s)

:

Mr. Rakesh Kumar Bhargava

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment / Order

11/10/2023

This civil revision petition is directed against the order dated

15.12.2017 passed by the learned Civil Judge, Kotputli, District

Jaipur (for brevity, “the learned trial Court”) in Civil Suit

No.2/2016

whereby,

an

application

filed

by

the

petitioners/defendants (for brevity, “the defendants”) under Order

7 Rule 11 CPC has been dismissed.

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The relevant facts in brief are that the respondents no.1 to

3/plaintiffs (for brevity, “the plaintiffs”) filed a suit for permanent

injunction against the defendants and the proforma respondents

no.4 & 5 wherein, the defendants filed an application under Order

7 Rule 11 CPC raising objection as to its maintainability in view of

Section 207 of the Rajasthan Tenancy Act, 1955. The application

has been dismissed by the learned trial Court vide order dated

15.12.2017, impugned herein.

Although, learned counsel for the petitioners assails the

order on its merit; but, he could not dispute that on an earlier

occasion also, the defendants have filed an application under

Order 7 Rule 11 CPC raising objection as to maintainability of the

suit which came to be dismissed by the learned trial Court vide

order dated 12.02.2016. It is trite law that principle of res judicata

as also constructive judicata is applicable at the subsequent stage

in the same proceedings.

In case of Munni Devi (Smt.) & Ors. Vs. Ramsahai

(Since Deceased) Thro’ LR & Ors.: 2023 (2) DNJ (Raj.) 730,

this Court held as under:-

“5. Indisputably, the petitioners have filed an earlier

application dated 16.04.2021 under Order 7 Rule 11 CPC

seeking rejection of the plaint alleging that without seeking

declaration as to his khatedari rights, the suit filed by the

plaintiff was not maintainable. The application came to be

dismissed by the learned trial Court vide its order dated

19.08.2021 which has attained finality. Thereafter, the

instant application filed by the petitioners raising similar

objection has been dismissed vide order dated 15.11.2022,

impugned herein. It is trite law that the principles of res

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[CR-29/2018]

judicata/constructive judicata are applicable in the

subsequent stages of same proceedings during pendency

of the suit. A co-ordinate Bench of this Court has, in case

of Sahina Vs. Returning Officer (Panchayat) Gram

Panchayat Jhiwana, Panchayat Samiti Tijara & Ors., S.B.

Civil Writ Petition No.6916/2017, vide order dated

10.05.2017 held as under:-

“6. Of importance in the case is the fact

of an earlier application under Order 7 Rule 11

CPC which was dismissed by the trial, court on

12-2-2016. The RC did not in the said

application set up a ground under Rule 81 of

the Rules of 1994 with regard to the election

petition not being presented by the election

petitioner or by one duly authorised by her in

writing. The RC at the stage of final arguments

then filed the second application under Order 7

Rule 11 CPC which has been dismissed by the

impugned order by the trial court. Section 141

CPC provides that the procedure p