# Smt. Shiv Patti Devi (Since Deceased) & Ors Revisionists v. Yudhishthir Dhar Dubey

- **Citation:** (2016) 3 ILRA 545
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-29
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shiv-patti-devi-since-deceased-ors-revisionists-v-yudhishthir-dhar-dubey-43483
- **Pages:** 7

## Headnote

This Civil Revision was preferred against the order dated 08.12.2008 passed by the Civil Judge (Senior
Division), Gorakhpur in Original Suit No. 538 of 2003 (Yudhishthir Dhar Dubey v. Smt. Shiv Patti Devi
& Others), whereby the application 126-Ga filed by the defendants under Order VII Rule 11 of the
Code of Civil Procedure for rejection of the plaint was rejected. The revisionists, being aggrieved by
the said order, invoked the revisional jurisdiction of this Court under Section 115 CPC.

Procedure

The defendants in the original suit filed an application under Order VII Rule 11 CPC on the ground
that the suit was barred by the principle of res judicata in view of the earlier decision of the High
Court in Writ Petition No. 17599 of 1999, wherein the registered free-hold sale deed dated 11.01.1999
had already been cancelled. The trial court, after hearing both sides and considering the pleadings,
rejected the said application holding that the issue involved a mixed question of fact and law. Against
this interlocutory order, the present revision was filed. Arguments were heard from both sides and the
record was perused before dismissal of the revision.

Penal Sections
546 INDIAN LAW REPORTS ALLAHABAD SERIES

Not Applicable - This matter arises purely out of civil proceedings under the Code of Civil Procedure.

Case Law

Lal Chand v. Radha Krishna, AIR 1977 SC 789
State of Punjab v. Bua Das Kaushal, AIR 1971 SC 1676
Union of India v. Nanak Singh, AIR 1968 SC 1370

Head Notes

Order VII Rule 11 CPC - Rejection of Plaint - Res Judicata - Mixed Question of Fact and Law -
Where the plaintiff specifically pleads that the property involved in earlier writ proceedings is different
from the property in the civil suit, the plea of res judicata cannot be determined at the threshold
without recording evidence - Writ decision may operate as res judicata if identity of cause of action is
established - Revisional Jurisdiction under Section 115 CPC (U.P. Amendment) - Interference not
permissible unless the order causes failure of justice or irreparable injury - Revision not maintainable
against interlocutory order rejecting application under Order VII Rule 11 CPC.

Facts

The defendants' side had earlier filed Writ Petition No. 17599 of 1999 seeking cancellation of a
registered free-hold sale deed dated 11.01.1999.
The said writ petition was allowed by the High Court on 08.05.2003 and the sale deed was cancelled.
Thereafter, Original Suit No. 538 of 2003 was filed by the plaintiff before the Civil Judge (Senior
Division), Gorakhpur in respect of certain property, asserting that the disputed property was different
from the subject matter of the writ petition.
The suit sought a declaration that the High Court judgment in the writ petition related to different
property and sought injunction against interference and damage to construction.
The defendants filed application 126-Ga under Order VII Rule 11 CP

## Text

3 All. Smt. Shiv Patti Devi (Since Deceased) & Ors. Vs Yudhishthir Dhar Dubey
545
aside and the enquiry is to continue, the correct course of action is to take recourse to the
provisions of Rule 17 (4) (b) by directing that the appellant be placed under suspension from
the date of the original order of dismissal. The competent authority shall now take necessary
action in accordance with law, consistent with the aforesaid directions. The appellant would
be entitled to his subsistence allowance accordingly.

9. The order of the learned Single Judge dated 5 January 2016 is accordingly set aside.
The special appeal shall be governed by the aforesaid directions.

10. The special appeal is accordingly disposed of. There shall be no order as to costs.
--------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.02.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Civil Revision No.- 427 OF 2011

Smt. Shiv Patti Devi (Since Deceased) & Ors ...Revisionists
Versus
Yudhishthir Dhar Dubey ...Opposite Party

Counsel for the Revisionists:
Shri Yogesh Agarwal

Counsel for the Opposite Party:
Shri Manish Goyal

Proceedings

This Civil Revision was preferred against the order dated 08.12.2008 passed by the Civil Judge (Senior
Division), Gorakhpur in Original Suit No. 538 of 2003 (Yudhishthir Dhar Dubey v. Smt. Shiv Patti Devi
& Others), whereby the application 126-Ga filed by the defendants under Order VII Rule 11 of the
Code of Civil Procedure for rejection of the plaint was rejected. The revisionists, being aggrieved by
the said order, invoked the revisional jurisdiction of this Court under Section 115 CPC.

Procedure

The defendants in the original suit filed an application under Order VII Rule 11 CPC on the ground
that the suit was barred by the principle of res judicata in view of the earlier decision of the High
Court in Writ Petition No. 17599 of 1999, wherein the registered free-hold sale deed dated 11.01.1999
had already been cancelled. The trial court, after hearing both sides and considering the pleadings,
rejected the said application holding that the issue involved a mixed question of fact and law. Against
this interlocutory order, the present revision was filed. Arguments were heard from both sides and the
record was perused before dismissal of the revision.

Penal Sections
546 INDIAN LAW REPORTS ALLAHABAD SERIES

Not Applicable - This matter arises purely out of civil proceedings under the Code of Civil Procedure.

Case Law

Lal Chand v. Radha Krishna, AIR 1977 SC 789
State of Punjab v. Bua Das Kaushal, AIR 1971 SC 1676
Union of India v. Nanak Singh, AIR 1968 SC 1370

Head Notes

Order VII Rule 11 CPC - Rejection of Plaint - Res Judicata - Mixed Question of Fact and Law -
Where the plaintiff specifically pleads that the property involved in earlier writ proceedings is different
from the property in the civil suit, the plea of res judicata cannot be determined at the threshold
without recording evidence - Writ decision may operate as res judicata if identity of cause of action is
established - Revisional Jurisdiction under Section 115 CPC (U.P. Amendment) - Interference not
permissible unless the order causes failure of justice or irreparable injury - Revision not maintainable
against interlocutory order rejecting application under Order VII Rule 11 CPC.

Facts

The defendants' side had earlier filed Writ Petition No. 17599 of 1999 seeking cancellation of a
registered free-hold sale deed dated 11.01.1999.
The said writ petition was allowed by the High Court on 08.05.2003 and the sale deed was cancelled.
Thereafter, Original Suit No. 538 of 2003 was filed by the plaintiff before the Civil Judge (Senior
Division), Gorakhpur in respect of certain property, asserting that the disputed property was different
from the subject matter of the writ petition.
The suit sought a declaration that the High Court judgment in the writ petition related to different
property and sought injunction against interference and damage to construction.
The defendants filed application 126-Ga under Order VII Rule 11 CPC seeking rejection of the plaint
on the plea of res judicata.
The trial court rejected the application on 08.12.2008 holding that the issue involved a mixed question
of fact and law.
Aggrieved thereby, the defendants preferred the present civil revision.

Contentions

Revisionists (Defendants)

The disputed property in the writ petition and in the civil suit is the same.
The High Court judgment in Writ Petition No. 17599 of 1999 has finally determined the rights of the
parties.
The present suit is barred by the principle of res judicata under Section 11 CPC.
The plaint should have been rejected under Order VII Rule 11 CPC.

Opposite Party (Plaintiff)

The property in dispute in the writ petition and the civil suit is different.
From the statements in the plaint itself, the suit does not appear to be barred by any law.
Res judicata cannot be decided without evidence.
Plea of res judicata was not specifically taken in the written statement.
No jurisdictional error has been committed by the trial court.
3 All. Smt. Shiv Patti Devi (Since Deceased) & Ors. Vs Yudhishthir Dhar Dubey
547
Analysis

The power under Order VII Rule 11 CPC can be exercised only when, from the statements made in
the plaint itself, the suit appears to be barred by any law.

The plaintiff has specifically pleaded that the property involved in the writ proceedings and the present
civil suit are different.
Whether both properties are identical or not is a pure question of fact requiring evidence.
The plea of res judicata, though applicable even to writ proceedings as laid down in Lal Chand v.
Radha Krishna and State of Punjab v. Bua Das Kaushal, can be invoked only when identity of cause of
action and subject matter is clearly established.
At the preliminary stage, when the identity of property is disputed, rejection of plaint would result in
grave injustice to the plaintiff.
The trial court rightly held that the issue involved a mixed question of fact and law and could not be
decided without trial.
Under Section 115 CPC (U.P. Amendment), revisional interference is confined only to cases resulting in
final disposal of proceedings or causing failure of justice or irreparable injury.
The impugned order does not finally decide any right of the parties nor does it cause irreparable injury
to the revisionists.
The revisionists still retain the right to prove the plea of res judicata during trial.
The impugned order suffers from no legal, factual, or jurisdictional error warranting revisional
interference.

Conclusion

Upon a careful and exhaustive examination of the impugned order dated 08.12.2008 passed by the
Civil Judge (Senior Division), Gorakhpur, and on due consideration of the rival submissions advanced
by the learned counsel for the parties, this Court finds no factual, legal, or jurisdictional infirmity in the
rejection of application 126-Ga under Order VII Rule 11 CPC. The plea of res judicata, being
dependent upon determination of identity of the disputed properties in the writ proceedings and the
civil suit, has rightly been held to involve a mixed question of fact and law requiring evidence. The
provisions of Order VII Rule 11 CPC are not attracted at this preliminary stage. Further, in view of the
restricted scope of revisional jurisdiction under Section 115 CPC as amended in Uttar Pradesh, no case
of failure of justice or irreparable injury is made out. Accordingly, the Civil Revision being devoid of
merit, is hereby dismissed. No order as to costs.

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. Heard learned counsel for the parties.

2. This revision has been filed against the order dated 08.12.2008 passed by Civil Judge
(Senior Division), Gorakhpur, in Original Suit No. 538/2003 (Yudhishthir Dhar Dubey v.
Smt. Shiv Patti Devi & others) by which application 126-Ga of defendants under Order-VII,
Rule-11 CPC was rejected.

3. The fact relating to this revision are that defendant's side had filed a Writ Petition no.
17599/1999 for cancellation of registered free hold sale-deed dated 11.01.1999. This writ
petition was allowed and the sale-deed in question was cancelled by judgment dated
08.05.2003 of this High Court. Thereafter original suit no. 538/2003 (Yudhishthir Dhar
Dubey v. Smt. Shiv Patti Devi & others) was filed in the Court of Civil Judge (Senior
548 INDIAN LAW REPORTS ALLAHABAD SERIES
Division), Gorakhpur for certain property and it was pleaded that the disputed property is
different from that property which was subject matter of writ petition no. 17599/1999. The
plaintiff had sought relief in this suit for declaring that judgment of the High Court in Writ
Petition No. 17599/1999 relating to said free hold registered sale-deed was for different
property, other than one mention in the plaint, and defendants 1st set (Smt. Shiv Patti Devi
and Paras Nath Gupta) be restrained from interfering in possession of plaintiff or damaging
the construction of plaintiff present over this property in suit.

4. The defendants of original suit no. 538/2003 had moved application '126-Ga' dated
02.08.2008 under order-VII, Rule-11 CPC in which it was stated that relief sought in plaint
relates to the matter that has already been decided finally by High Court in Writ Petition No.
17599/1999, and special leave petition against said order has already been dismissed by
Hon'ble Apex Court; therefore, the present suit is abuse of process of Court. In other original
suit no. 530/1994, judgment dated 08.10.1998 passed, by which it was ordered the plaintiff
be not evicted from disputed land. After the death of Smt. Shiv Patti Devi, the Will executed
by her in favour of her husband has become effective, so plaintiff is estopped from filing the
suit against the defendants. Therefore for this reason, this suit should be dismissed.

5. The trial court had accepted the objection against the said application of plaintiff,
afforded opportunity of hearing and thereafter passed order dated 08.12.2008 by which
application 126-Ga under Order-VII, Rule-11 CPC was rejected. In this order, the trial court
had given finding that Writ Petition No. 17599/1999 was filed for cancellation of registered
free hold sale-deed dated 11.01.1994,which was cancelled by judgment of said writ petition.
The application for recalling the said order was dismissed and the S.L.P. preferred against
the said order was also dismissed on 04.08.2003; but this fact can be decided only after
receiving the evidences of the parties as to whether the property in dispute in the present suit
and in writ petition no. 17599/1999 are the same or different. Since it is a mixed question of
fact and law, so it is not possible to decide this matter at this stage. So application 126-Ga
cannot be allowed. Aggrieved by this impugned order dated 08.12.2008 of the trial court, the
defendants of original suit had preferred present revision.

6. Learned counsel for the revisionist contended that disputed property involved in writ
petition no. 17599/1999 and original suit no. 538/2003 are the same. He pleaded that since
the rights of the parties have been finally determined in the judgment dated 08.05.2003 of
this Court passed in writ petition no. 17599/1999, therefore the proceedings for the same
property between the same parties in original suit no. 538/2003 is barred by principles of
res-judicata under Section 11 CPC. He contended that being barred by Section 11 CPC, the
original suit should be dismissed under Order-VII, Rule-11 CPC.

7. Learned counsel for the respondent contended that plaint can be rejected under
Order-VII, Rule-11 CPC only when from the statements of the suit it appears that plaint is
barred by any law. He contended that from perusal of the plaint's averment only, the suit
does not appear to be barred by any law, therefore the proceedings of Order-VII, Rule-11
CPC are not applicable. He further contended that the cause of action of the original suit is
plaintiff's entitlement over disputed land, and that the defendant has no right or title over it.
3 All. Smt. Shiv Patti Devi (Since Deceased) & Ors. Vs Yudhishthir Dhar Dubey
549
In statement of plaint no incorrectness or irregularity is there, and the property in dispute of
aforesaid writ petition is different from that of original suit. So the question of res-judicata
in the present case can be decided after receiving the evidences only. In the circumstances,
there is no error or incorrectness in the impugned order. He also pointed out that plea of resjudicata was not specifically taken in the written statement by the revisionist. He contended
that there is no jurisdictional error in passing of the impugned order, therefore the revision
should be dismissed.

8. In the case of Lal Chand Versus Radha Krishna AIR 1977 SC 789, the Hon'ble
Apex Court has held as under:-

"The fact that section 11 of Code of Civil Procedure cannot apply on its terms, the
earlier proceeding before the competent authority not being a suit, is no answer to the
extension of the principle underlying that section to the instant case. Section 11, it is long
since settled, is not exhaustive and the principle which motivates that section can be
extended to cases which do not fall strictly within the letter of the law. The issues involved in
the two proceedings are identical those issues arise as between the same parties and thirdly,
the issue not sought to be raised was decided finally by a competent quasi-judical tribunal.
The principle of res-judicata is conceived in the larger public interest which requires that
all litigation must, sooner than later, come to an end. The principle is also founded on
equity, justice and good conscience which require that a party which has once succeeded on
an issue should not be permitted to be harassed by a multiplicity of proceedings involving
determination of the same issue."

9. In another case of State of Punjab Verus Bua Das Kaushal A.I.r 1971 S.C. 1676,
Hon'ble Apex Court has held as under:-

"The question whether the decision in a writ petition operates as res-judicata in a
subsequent suit filed on the same cause of action has been settled by this Court in Union of
India v. Nanak Singh (AIR 1968 SC 1370). It has been observed that there is no good reason
to preclude decisions on matters in controversy in writ proceedings under Article 226 or
Article 32 of the Constitution from operating as res-judicata in subsequent regular suits on
the same matters in controversy between the same parties and thus to give limited effect to
the principle of finality of decision after full contest."

10. Having gone through the decisions relied by revisionist's side as mentioned above,
this legal position is explicitly clear that doctrine of res-judicata will be applicable in those
cases when the matter between same parties relating to same cause of action has once being
decided on merit in the decision of writ petition under Article 226 of Constitution of India,
and the same matter is reagitated in civil suit before the civil court. But the matter to be
considered here is as to whether the principles of res-judicata is appllicable in present matter
or not. The plaintiff had filed original suit no. 538/2003 with specific averment that he
should not be evicted from the disputed property in compliance of the judgment passed in
the writ petition no. 17599/1999, because the property involved in writ petition and in the
present original suit are different. This point was considered by the trial court properly and
then learned Civil Judge had given finding to the effect that this question as to whether the
550 INDIAN LAW REPORTS ALLAHABAD SERIES
property in dispute in civil suit and writ petition are same or different, can be decided only
after receiving the evidences. The trial court had held that it is a mixed question of fact and
law that cannot be decided at preliminary stages without evidences. This finding is
apparently correct and just. When the plaintiff-respondent has specifically pleaded that
property in both the proceedings are different then it appears appropriate to afford him
opportunity to prove his averments. If the property in both the proceedings are different then
rejection of plaint without affording opportunity to plaintiff in that regard will amount to
gross injustice.

11. So far the arguments of learned counsel for the revisionist regarding plaint being
liable to be rejected under the Order-VII, Rule-11 (d) CPC is concerned, this provision reads
that 'the plaint shall be rejected where the suit appears from the statement in plaint to be
barred by any law. From perusal of the statement of the plaint, it does not appear to be
barred by any law; but if the plaint case is proved incorrect then law will permit the
dismissal of suit. This can happen only when plaintiff is afforded opportunity to prove his
case and fails. Whether the disputed property of writ petition no. 17599/1999 and original
suit no. 538/2003 are same or different, is question of fact that can only be decided on the
basis of evidences, therefore this findings of trial court is not erroneous that it is a mixed
question of fact and law, which cannot be decided at this preliminary stages.

12. Section 115 (3) CPC, as amended by 'The Code of Civil Procedure (Uttar Pradesh
Amendment) Act, 2003' (U.P. Act No. 14 of 2003) , reads as under:

"(3) the superior court shall not, under this section, vary or reverse any order
made except where-

(i) the order, if it had been made in favour of the party applying for revision,
would have finally disposed of the suit or other proceeding; or

(ii) the order, if allowed to stand, would occasion a failure of justice or cause
irreparable injury to the party against whom it was made."

13. In present case, if the impugned order is allowed to stand, it would neither
dispose off finally any suit or proceeding relating to any rights of revisionist, nor it
would occasion irreparable loss or any failure of justice to him, because in trial
defendants-revisionist will have right to disprove the plaintiff's case and get the matter
decided on its merits. The trial court had right to pass impugned order. By impugned
order no case or right of any party was decided. Therefore revision cagainst such order
is not maintainable.

14. Court below was perfectly within its jurisdiction to reject the application '126Ga'. No factual, legal or jurisdictional error appears to have been committed in passing
of the impugned order that may attract the interference of revisional power of this Court.
Therefore revision fails and is, hereby, dismissed.
-------
3 All. Siddhartha Pandey Vs State OF U.P. & Anr.
551

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2016

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.

Writ A No.- 6147 of 2016

Siddhartha Pandey ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for Petitioner:
Sri Satish Mandhyan

Counsel for Respondents:
C.S.C., Sri Ashish Mishra, Sri Manish Goyal

Proceedings

Heard counsel for the petitioner, learned standing counsel for respondent no.1, and Sri Ashish Mishra
for respondent no.2. The petitioner, while working as Sessions Clerk in the court of Additional District
Judge, Court No.7, Fatehpur, was placed under suspension by impugned order dated 1.01.2016
passed by the second respondent (Incharge District Judge, Fatehpur). The allegation against the
petitioner is that he had used unparliamentary language with the Incharge District Judge and
misbehaved with him, appearing to be in a state of intoxication. Consequently, he was sent for
medical examination at District Hospital, Fatehpur, which reported dilated pupils and presence of
alcoholic smell, though his blood pressure was normal. On the same date, the Incharge District Judge
passed the impugned suspension order. The Additional District and Sessions Judge, Court No.5, was
appointed as Inquiry Officer to frame and serve a charge sheet after approval from the second
respondent. Aggrieved thereby, the petitioner filed the instant writ petition.

Procedure

It is undisputed that the District Judge was absent on the date of the impugned order. Section 10 of
the Act empowers the senior-most Additional Judge or Subordinate Judge to assume charge of the
District Judge's office in his absence and exercise all powers of the District Judge. The petitioner's
service is governed by the Uttar Pradesh State District Court Service Rules, 2013. Rule 23(2)
empowers the Appointing Authority to place a person under suspension pending enquiry. In the
instant case, the second respondent, being the statutory in-charge and Disciplinary Authority, was
competent to initiate disciplinary proceedings and suspend the petitioner. Delegation by notification
dated 17.12.2015 related only to financial matters and did not affect administrative powers under
Section 10 of the Act.

Sections

None - service / disciplinary suspension matter.

LIST OF CASES CITED