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2018 (2) TMI 2098 - SC - Indian LawsApplication Under Order VII Rule 11 of the Code of Civil Procedure, 1908 claiming rejection of the plaint - rejection on the ground that the suit filed by Respondent No. 1 was barred by res judicata and also Under Section 69 of the Indian Partnership Act, 1932 - HELD THAT:- In the first instance, it can be seen that insofar as relief of permanent and mandatory injunction is concerned that is based on a different cause of action. At the same time that kind of relief can be considered by the trial court only if the Plaintiff is able to establish his locus standi to bring such a suit. If the averments made by the Appellant in their written statement are correct, such a suit may not be maintainable inasmuch as, as per the Appellant it has already been decided in the previous two suits that Respondent No. 1/Plaintiff retired from the partnership firm much earlier, after taking his share and it is the Appellant (or Appellant and Respondent No. 2) who are entitled to manage the affairs of M/s. Sen Industries. Reference made to the judgment of this Court in KAMALA AND ORS. VERSUS K.T. ESHWARA SA AND ORS. [2008 (4) TMI 800 - SUPREME COURT]. That was a case wherein the trial judge allowed an application for rejection of the plaint in a suit for partition of family properties and the same was affirmed by the High Court as well. An appeal against the order of the High Court was filed before this Court. While examining the scope, ambit and exercise of power Under Order VII Rule 11 of Code of Civil Procedure, this Court held The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage. In a case like this, though recourse to Order VII Rule 11 Code of Civil Procedure by the Appellant was not appropriate, at the same time, the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decide the same in the first instance. In this manner the Appellant, or for that matter the parties, can be absolved of unnecessary agony of prolonged proceedings, in case the Appellant is ultimately found to be correct in his submissions. Appeal dismissed.
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