Case Note & Summary
The present civil revision application arose from an order dated 18.11.2017 passed by the trial court in Regular Civil Suit No. 46/2016, dismissing the defendants' application under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908. The original plaintiffs filed a suit for eviction and recovery of possession of a suit property in Village Chorao, bearing Survey No. 4/24, known as SAUD, comprising a residential house and a well. The property originally belonged to late Maria Vaz e Sousa, mother of the original plaintiff, and was in the exclusive possession of the plaintiffs. The mother of defendant no.1 was engaged as a servant and was allowed to occupy a single room at the rear side of the house. After the death of Maria Vaz e Sousa and her sister Esilda, the original plaintiff appointed defendant no.1 as caretaker, allowing occupation of one room. A dispute arose when defendant no.1 claimed occupancy, leading to Suit No. 4/1966, which was disposed of by a consent decree dated 16.12.1966. Under that decree, defendant no.1 and his wife were allowed to occupy one compartment for two years, after which they needed fresh permission. Subsequently, the defendants filed an application under Section 8A of the Mundkars Act claiming Mundkar rights, but this claim was dismissed by the Joint Mamlatdar on 27.11.2006, confirmed by the Deputy Collector/SDO on 26.09.2007, and finally by the Administrative Tribunal on 29.06.2012. After these proceedings, the plaintiffs requested the defendants to vacate, granting them time until February 2014 on humanitarian grounds. The defendants failed to vacate, obstructed the plaintiffs, and refused to hand over possession. The plaintiffs then filed the suit for eviction. The defendants filed an application for rejection of plaint under Order 7 Rule 11(d) CPC, contending that the suit is barred by law because an earlier suit had been decreed by consent terms with the same reliefs, and the only remedy available was execution of the earlier decree. The trial court dismissed this application, holding that the question whether the suit is barred by Section 47 CPC is a mixed question of fact and law and requires leading evidence. The defendants challenged this order in the present civil revision application. The provided judgment text does not include the High Court's final order, but the trial court's reasoning is the focus of the challenge.
Headnote
A) Civil Procedure - Rejection of Plaint - Order 7 Rule 11(d) CPC - Bar of suit by earlier consent decree under Section 47 CPC - Mixed question of fact and law requiring evidence - The trial court dismissed the application for rejection of plaint, holding that the question whether the suit is barred by Section 47 CPC is a mixed question of fact and law and can only be decided by leading evidence. Held that such issue cannot be decided summarily in an application under Order 7 Rule 11 CPC (Paras 1, 9).
B) Civil Procedure - Execution vs Fresh Suit - Section 47 CPC - Effect of consent decree - Whether fresh suit for eviction is maintainable or only execution lies - The defendants contended that earlier suit was decreed by consent terms on 16.12.1966 wherein same reliefs were prayed, and only execution lies. The trial court observed this raises a mixed question requiring trial before deciding bar of suit (Paras 5, 9).
Issue of Consideration
Whether the trial court erred in dismissing the application under Order 7 Rule 11(d) CPC when defendants contended that the suit is barred by Section 47 CPC due to earlier consent decree.
Final Decision
The trial court dismissed the application under Order 7 Rule 11 CPC on 18.11.2017. The High Court's final order in the civil revision application is not provided in the text.
Law Points
- Order 7 Rule 11 CPC rejection of plaint
- Section 47 CPC bar of suit
- mixed question of fact and law
- consent decree
- execution of decree
- Mundkars Act Section 8A
- eviction suit
Case Details
2023 LawText (BOM) (01) 275
Civil Revision Application No. 10 of 2018
Mr. Sudesh Usgaonkar with Mr. Rui Gomes Pereira, Advocates for Petitioners; Mr. Rohit Bras De Sa with Mr. Pushkar Navti and Mr. Prataprao Naik, Advocates for Respondent No.1(b)
Pascoal Jose Vaz (since deceased), represented by his legal heirs Mrs. Maria Piedade Vaz, Mr. Lino Xavier Blasio Vaz, Mr. Frutoso Sebastiao Vaz
Arnaldo David Vaz e Sousa (since deceased), represented by his legal heirs Mrs. Maria Manuella Sousa and Mr. Antonio David Sousa
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Nature of Litigation
Civil revision application challenging trial court's order rejecting application under Order 7 Rule 11 CPC for rejection of plaint in a suit for eviction and recovery of possession.
Remedy Sought
Original defendants (petitioners) sought rejection of plaint under Order 7 Rule 11(d) CPC, contending the suit is barred by law due to earlier consent decree; the trial court dismissed the application, and the defendants filed the present civil revision application seeking to set aside that order.
Filing Reason
The plaintiffs filed a suit for eviction and recovery of possession of suit property, alleging defendants failed to vacate despite notices and time granted; defendants filed application for rejection of plaint claiming the suit is barred because an earlier suit was decreed by consent terms covering same reliefs.
Previous Decisions
Trial court dismissed the Order 7 Rule 11 application on 18.11.2017, holding the question whether the suit is barred by Section 47 CPC is a mixed question of fact and law requiring evidence. Earlier: Joint Mamlatdar dismissed defendants' claim under Section 8A of Mundkars Act on 27.11.2006; appeal dismissed by Deputy Collector/SDO on 26.09.2007; Mundkar Revision Application No.35/2007 dismissed by Administrative Tribunal on 29.06.2012; consent decree passed in Suit No.4/1966 on 16.12.1966.
Issues
Whether the trial court erred in dismissing the application under Order 7 Rule 11(d) CPC.
Whether the suit is barred by law under Section 47 CPC due to the earlier consent decree dated 16.12.1966.
Whether the question of bar of fresh suit is a mixed question of fact and law requiring evidence.
Submissions/Arguments
Petitioners/defendants argued that the fresh suit is barred by law as there existed an earlier suit which was decreed by consent terms on 16.12.1966 wherein same reliefs were prayed; the only remedy available to plaintiffs is execution of the earlier decree, and fresh suit is clearly barred.
Ratio Decidendi
The trial court held that the question whether the suit is barred by Section 47 CPC is a mixed question of fact and law and can only be decided by leading evidence, not in a summary application under Order 7 Rule 11 CPC.
Judgment Excerpts
By way of present revision application, the original defendants are challenging the impugned order dated 18.11.2017 in Regular Civil Suit No. 46/2016 by which an application at Exhibit 9 filed by the defendants for rejection of plaint under Order 7 Rule 11 CPC was dismissed.
The learned trial Court after hearing both the parties rejected such application on the ground that the question whether the suit is barred by Section 47 of CPC, is a mixed question of fact and law and can only be decided by leading evidence.
Procedural History
Suit No. 4/1966 was filed and disposed of by consent decree dated 16.12.1966. Defendants filed application under Section 8A of Mundkars Act in 1998; Joint Mamlatdar dismissed it on 27.11.2006. Appeal to Deputy Collector/SDO dismissed on 26.09.2007. Revision before Administrative Tribunal (Mundkar Revision Application No.35/2007) dismissed on 29.06.2012. Plaintiffs filed suit for eviction and recovery of possession in Regular Civil Suit No.46/2016. Defendants filed application under Order 7 Rule 11(d) CPC on 06.10.2016, which was dismissed by trial court on 18.11.2017. Defendants filed Civil Revision Application No.10 of 2018 before the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order 7 Rule 11, Section 47
- Mundkars Act: Section 8A
