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Santhanathammal and anr. Vs. Isaki Suppan Asari Minor by His Mother and Guardian Sounda Irathammal and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in60Ind.Cas.694
AppellantSanthanathammal and anr.
Respondentisaki Suppan Asari Minor by His Mother and Guardian Sounda Irathammal and anr.
Excerpt:
civil procedure code (act v 1908), section 11 order vii, rules 11, 13 - rejection of plaint finding on, question of law or fact given after a full trial on merits--subsequence suit for same subject-matter on same cause of action--res judicata. - - i do not think it can be argued that the decision on any point so heard and determined is not res judicata under section 11 and that the failure of the suit by the rejection of the plaint in consequence of findings on material questions of law is not a final disposal of the suit falling within the doctrine of res judicaia......matter of the two suits may be taken as identical. the lower appellate court has dismissed the suit as barred by res judicata, mr. muthiah mudaliar for the plaintiffs (appellants) son-tends, on the strength of the language of order vii, rule 13, that the rejection of the plaint by the lower appellate court in the former suit does not preclude the plaintiffs, from bringing a fresh plaint in respect of the same cause of action and that implies that the present suit is not barred by res judicata. order vii, rule 13, is carefully worded and says that the rejection of the plaint on any of the grounds mentioned in order vii, rule 11 shall not of its own force preclude the plaintiff from presenting a fresh plaint.' order. vii, rule 11, mentions four grounds on which the court is bound to.....
Judgment:

Sadasiva Aiyar, J.

1. The plaintiffs are the appellants. The plaintiffs and the defendants were bound under a razinamah to pay in equal shares two kottahs of paddy as maintenance to the second defendant. In default the second defendant was entitled to take possession of a certain land which had then come to belong the plaintiffs alone though it had a still earlier period belonged to the plaintiffs and first defendant jointly. The plaintiffs, in order to protest their interest in the land which was in danger of being taken one of their possession if the maintenance due to the second defendant was not paid in fall, paid the whole of the maintenance due to the second defendant for the year 1914 and 1915 and then brought the suit (Original Suit No. 9 of 1916) for recovery of half of the amount they paid from the first defendant. That suit was decreed in he Court of first in-stance but the Appellate Court, on the 25th January 1917, pronounced the judgment, Exhibit, in which it held that the plaintiffs had to legal right to recover the one half from the first defendant because the razinma finally and solely determined the rights of the parties and the ravzinama did not contain a term giving the right to the plaintiffs to sue the defendant for contribution when the first defendant did not pay his half of the maintenance to the second defendant. Having pronounced such a judgment the decrial portion of that judgment right to have been worded as one dismissing the suit. But the Aprellafe court said in that portion of the judgment: The appeal is allowed and the plaint rejected as disclosing no cause of action,' On gush a judgment either a decree dismissing the suit or a formal order rejecting the plaint (which order will have the force of a decree according to the definition of 'decree' in Section 2(2), Civil Procedure Code) ought to have been and must be presumed to have been made. The plaintiffs had the right to prefer an appeal from sash a decree or such an order (it an order was passed and not a decree Instead of doing so, they presented the plaint in the present suit on the 11th April 1917 in which the principal prayer was the some demand for contribution from the first defendant of half the main tenant} aquanaut paid by the plaintiffs for the years 1914 and 1915 for the second defendant,

2. In fast, the subject matter of the two suits may be taken as identical. The lower Appellate Court has dismissed the suit as barred by res judicata, Mr. Muthiah Mudaliar for the plaintiffs (appellants) son-tends, on the strength of the language of Order VII, Rule 13, that the rejection of the plaint by the lower Appellate Court in the former suit does not preclude the plaintiffs, from bringing a fresh plaint in respect of the same cause of action and that implies that the present suit is not barred by res judicata. Order VII, Rule 13, is carefully worded and says that the rejection of the plaint on any of the grounds mentioned in Order VII, Rule 11 shall not of its own force preclude the plaintiff from presenting a fresh plaint.' Order. VII, Rule 11, mentions four grounds on which the Court is bound to reject the plaint. Two of them, namely, Clauses (b) and (c) do not relate to the merits of the claim. Clause (a) it the case where the plaint does not disclose a cause of action and Clause (d) is where the suit appears from the statement in the plaint to be barred by any law Clause (d) evidently includes the case of a suit being barred by limitation. The prevailing practice is, if summons has been issued to the defendant and an issue has been settled on a question of limitation, to dismiss the suit if it is found to be barred by limitation and not merely to reject the plintiff The is rejected if it is found to be barred by limitation only in cases where the from itself discovers that it is barred by limitation before filing and registering it under Order IV, Rule 2. In such a face, the office brings the matter to the notice of the Judge, and if the Judge agrees with the ministerial officer he passes orders under Order VII, Rule 11 (i), rejecting it. Even if it is held that the rejection of the plaint can be made after it accepted and registered not only in cases falling under Clauses (6) and (c) of Order VII, Rule 11, (whish are intended to protest the Government Revenue from court but even when substantial questions of law attesting the rights of the parties in Clause (a) and (d) may not only after the plaint is registered as a suit but even after issues are settled and parties are heard on such issue. I do not think it can be argued that the decision on any point so heard and determined is not res judicata under Section 11 and that the failure of the suit by the rejection of the plaint in consequence of findings on material questions of law is not a final disposal of the suit falling within the doctrine of res judicaia. In this case there was a finding in the former suit that the plaintiffs on the construction of the razinamah between the parties had no right to sue the defendant for one half of the maintenance amount which the plaintiffs might have paid to the second defendant to protest their interests in the land above referred to Whether that finding is a finding on a question of fact or law, it is unnecessary to express a final opinion on, for the purpose of deciding this second appeal. But on that finding there was based the decision whish disposed of the subject-matter of that suit, namely, the claim for half the amount paid for the maintenance to the second defendant for the years 1914 and 1915. The present suit is for the same subject-matter as in the former suit and the finding is, therefore, res judicata, namely, that the plaintiffs have no right to recover that subject-matter from the first defendant. The second appeal, therefore, fails and is dismissed with costs.

Napier, J.

I agree.


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