The first defendant in O.S.No.262 of 2006, on the file of the Principal District Munsif, Pudukkottai, is the revision petitioner.
2. The respondents 1 to 3 herein filed O.S.No.262 of 2006 on the file of the Principal District Munsif, Pudukkottai, for declaring that the first plaintiff is the tenant under the defendant based on the oral agreement for the vacant site and for injunction. The revision petitioner disputed the claim of the respondents herein stating that already R.C.O.P.No.25 of 2004 was filed by the revision petitioner against the father of the respondents herein for eviction of the suit property and eviction was already ordered in R.C.O.P.No.25 of 2004 and he also filed the Execution Application to evict the respondents and at that time, the suit is filed. The revision petitioner also filed I.A.No.139 of 2008 in O.S.No.262 of 2006 under Order 7 Rule 11 of the Civil Procedure Code to reject the plaint in O.S.No.262 of 2006 stating that the suit is barred by res judicata and estopel and against the father of the respondents, R.C.O.P.No.25 of 2004 was filed and it was ordered in favour of the revision petitioner and he also filed E.P.No.49 of 2006 to execute the eviction order passed in R.C.O.P.No.25 of 2004 and at that time, the suit was filed and therefore, the suit has to be rejected.
3. The respondents herein filed the written statement that the application filed under Order 7 Rule 11 of the Civil Procedure Code cannot be maintained and the trial of the suit has already commenced and the case was adjourned for the cross-examination of P.W.1 and at this stage, the application is not maintainable. It was further contended that there is no res judicata or estopel and the respondents are not parties in R.C.O.P.No.25 of 2004 and the order passed in R.C.O.P.No.25 of 2004 is not binding on them. The lower Court dismissed the application filed by the Revision Petitioner that question of res judicata cannot be gone into at that stage and the respondents/the plaintiffs in O.S.No.262 of 2006 are not parties in R.C.O.P.No.25 of 2004 and therefore, the petition is not maintainable. Aggrieved against the same, this Civil Revision Petition is filed.
4. Mr.N.Balakrishnan, learned Counsel for the revision petitioner submitted that under Order 21 Rule 97 and 99 of the Civil Procedure Code, the suit filed by the respondents herein is not maintainable and all questions relating to right title or interest in the property have to be determined only in the executive proceedings and the respondents herein also filed E.A.No.241 of 2006 in E.P.No.49 of 2006 in R.C.O.P.No.25 of 2004 under Order 21 and Rules 97, 101 of the Civil Procedure Code and therefore, having invoked the jurisdiction of the Court under Order 21, Rule 97 and 101 of the Civil Procedure Code, the suit filed by the plaintiffs, namely the respondents herein, is not maintainable and the same has to be rejected. He also relied upon the judgment of the Honourable Supreme Court reported in 1998-2-L.W.418 (SC) in Shreenath and another V Rajesh and Others, in support of his submission. He further relied upon the judgment reported in JT 2000(7) SC 502 in Prasanta Banerji Vs. Pushpa Ashoke Chandani and Others.
5. On the other hand, Mr.G.Sridharan, learned Counsel for the respondents submitted that the suit was filed in earlier point of time and in the application filed under Order 7, Rule 11, no such plea has been taken and the only plea taken by the revision petitioner is that the suit filed by the respondents is barred by res judicata and the question of res judicata is a mixed question of law and fact and the same cannot be gone into while deciding the issue under Order 7, Rule 11 of the Civil Procedure Code and the Court has rightly dismissed the application.
6. I have given my anxious consideration to the submissions made by the learned Counsel for both sides.
7. It is true that the suit in O.S.No. 262 of 2006 was filed in earlier point of time and in the application filed under Order 7, Rule 11 of the Civil Procedure Code, the revision petitioner did not state that having regard to the provisions of Order 21, Rule 87 of the Civil Procedure Code, the suit is not maintainable. The revision petitioner has only stated that the suit is barred by res judicata as the revision petitioner has already obtained the order of eviction in R.C.O.P.No.25 of 2004 which is binding on the plaintiffs. It is also not disputed that the respondent in R.C.O.P.No. 25 of 2004 is none other than the father of the plaintiffs in O.S.No.262 of 2006. Therefore, it was contended by the revision petitioner that the present suit in O.S.No.262 of 2006 is barred by res judicata.
8. According to me, as rightly pointed by Mr.G.Sridharan, learned Counsel for the respondents, that the question of res judicata is a mixed question of law and fact and that cannot be decided in an application under Order 7 and Rule 11 of the Civil Procedure Code. Nevertheless, having regard to the fact that the respondents herein filed E.A.No.241 of 2006 under Order 21, Rule 97, 101 of the Civil Procedure Code, as rightly contended by the learned Counsel for the revision petitioner, the suit cannot be maintained as the respondents herein have invoked the jurisdiction of the Execution Court by filing the application under Order 21, Rules 97, 101 of the Civil procedure code. As per Order 21, Rule 101 of the Civil Procedure Code, all questions including questions relating to right, title or interest in the property arising between the parties to the proceedings on an application under Order 21, Rule 97 or Rule 99 of the Civil Procedure Code, or the representatives to the adjudication of the application, shall be determined by the Court dealing with an application and not by a separate suit. In this case, the respondents herein are the legal representatives of the tenant in R.C.O.P.No.25 of 2004, against whom, the order of eviction was obtained. They have also filed the application under Order 21, Rule 97 of the Civil Procedure Code. Therefore, when the parties have invoked the provisions of Order 21, Rule 97, 101 of the Civil Procedure Code, irrespective of the fact that the suit filed by them at earlier point of time, the suit cannot be proceeded with and all the questions relating to right or title of the parties have to be decided only in the application filed under Order 21, Rule 97 of the Civil Procedure Code. This position has been made clear in the judgment reported in 1998-2-L.W. 418 in Shreenath and another Vs. Rajesh and Others. In the said judgment, the order of the Honourable Supreme Court quoting the passage in the judgment reported in 1995(1) SCC 242, in Noorduddin Vs. Dr.K.L.Anand, wherein it is held as follows: "Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21, Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution."
9. Therefore, following the judgment, the suit filed by the respondents in O.S.No.262 of 2006 is not maintainable and therefore, it is liable to the rejected. However, it is open to the respondents herein to raise all the pleas that are available to them in the E.A.No.241 of 2006.
10. Accordingly, the Civil Revision Petition is allowed. No costs. ssl To The Additional District Munsif, Madurai.