TMI Blog2018 (2) TMI 2098X X X X Extracts X X X X X X X X Extracts X X X X ..... AMALA 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 manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm with the Appellant, Respondent No. 1 and Respondent No. 2-Anjan Mallick (other partner proforma Respondent in these proceedings) as its partners. In the year 1994, a Memorandum of Understanding was entered into between the said partners wherein Respondent No. 1 agreed to retire from the said company/partnership firm in return for a payment of Rs. 2,00,000/- in lieu of his shares in the firm. Accordingly, the payment was duly made and Respondent No. 1 executed a deed of retirement. The said company continued under the reconstituted partnership between the Appellant and Respondent No. 2, until the latter's retirement after which Respondent No. 4 continued under the sole proprietorship of the Appellant. (B) Respondent No. 1 filed two separate suits prior to the title suit in question. The particulars of these two suits are as under: (i) Title Suit, being Suit No. 103/1995, was filed by Respondent No. 1 in the Court of Civil Judge (Junior Division), 1st Court at Durgapur, on May 25, 1995 against the Appellant and Respondent No. 2 praying for the following reliefs: a) a decree of declaration that Sen Industries is a sole proprietorship firm and the Plaintiff is the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty in question against the Appellant and Others with the following prayers: a) for a decree declaring the every leasehold right of the suit property of suit land of M/s. Sen Industries stands in the names of Sri Syamal Kumar Sen, Sri Soumitra Sen and Sri Anjan Mallick and for the purpose of building a factory for M.S. Fabrication Mechanical Jobwork; b) for a decree of permanent injunction against the Defendants from changing the nature and character and use of the suit land; c) for a decree of mandatory injunction with a direction upon the Defendant Nos. 1 and 2 to remove all the unauthorised articles, obstructions, shades, etc. from the suit property at their own cost within a time fixed by the learned court; 4. The Appellant as well as Respondent No. 2 have filed their respective written submissions in the aforesaid suit. Thereafter, the Appellant filed the application Under Order VII Rule 11 Code of Civil Procedure, on the averments noted in paragraph 2 above and submitted as under: (i) Petitioner herein is the exclusive owner of M/s. Sen Industries and is entitled to manage and administer the said property without being disturbed by the Respondent No. 1 here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Defendant Nos. 1 and 2 tried to invite the attention of the trial court that previous to the said suit there was another suit being Title Suit No. 103 of 1995 filed by the plain tiff against the 2 Defendant/Petitioner herein, which was ultimately dismissed by the trial court and an appeal was preferred against the said judgment and decree, which could not yield favourable result in favour of the Plaintiff/opposite party. It is further stated that the second suit was filed being Title Suit No. 268 of 2008 for declaration of dissolution of partnership ad accounts, which was against dismissed by the trial court and the said judgment and decree has been carried to the Appellant court, who is still in seisin thereof. Purely relying upon the aforesaid statement, the application for rejection of the plaint has been taken out. As indicated above, though there is a reflection of the second suit in the plaint of the said case but the court should not venture to look into the document surfaced for the first time at the behest of the Defendant for the purpose of nipping the plaint in bud Under Order VII Rule 11(d) of the Code. Furthermore, the court has to consider whether the subject dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar as the suit in question is concerned it is alleged that though the lease is given for doing M.S. Fabrication Mechanical Jobwork, contrary thereto, the Appellant as well as Respondent No. 2 are trying to set up a lime factory and plastic and PVC pipe factory which according to Respondent No. 1 is unlawful. On that basis, decree of permanent injunction is sought against the Defendant from changing the nature, character and use of the suit. Decree of mandatory injunction is also prayed for directing them to remove all the unauthorised articles, obstruction, sheds etc. of the suit premises. In addition to first relief, which is sought is the decree of declaration to the effect that M/s. Sen Industries stands in the names of the Appellant; Respondent No. 2 as well as Respondent No. 1, i.e., Plaintiff and for the purpose of building a factory for M.S. Fabrication Mechanical Jobworks. 9. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f, a clear finding to that effect must be arrived at. What would be relevant for invoking Clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another. It was further observed: For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision. 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. It is one thing to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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