Pramod Kumar Srivastava, J. - (1.) This revision has been preferred against the order dated 08.04.2005, passed by the Court of Civil Judge (Senior Division), Kanpur Nagar, in Original Suit No. 2187/2014 (Smt. Rekha Mishra & others v. Shiv Prasad Srivastava & others), by which Application 33-C moved by the defendants under Order 7, Rule 11 CPC, was rejected.
(2.) Admitted facts of the case are that in one earlier Original Suit No. 107/2014 - Rekha Mishra & Ors. v. Shiv Prasad Srivastava & Ors. , was filed by the plaintiffs in which they claimed themselves to be in possession of disputed house, and sought relief that they be declared sole owner of disputed premises no. 117/193, L-Block, Naveen Nagar, Kanpur Nagar, and defendants be retrained by permanent injunction from dispossessing the plaintiffs from the said disputed property. In the said suit the defendants had moved application under Order 7, Rule 11 CPC with the averments that plaintiffs had filed a suit for declaration and permanent injunction, and it appears from the plaint that they are not in possession of the whole of the house, and they had not sought any relief for possession, therefore, their suit is barred by Section-34 of the Specific Relief Act, so the plaint should be rejected under Order-VII, Rule-11 CPC. After affording an opportunity to the parties, the Additional Civil Judge, (Senior Division), Court No. 1, Kanpur Nagar, had allowed the said application under Order 7, Rule 11 and rejected the plaint of O.S. no. 107/2014.
(3.) Against the said order dated 02.08.2014 of rejection of the plaint in O.S. no. 107/2014, the plaintiffs had preferred First Appeal no. 447/2014 before this Court, which was heard and dismissed by the judgment of this Court dated 05.09.2014, with the following observations:- "The appellants are not remedy-less. It is open to them to file a fresh suit, as provided under Order 7, Rule 11 of the CPC. In view of what has been discussed above, in the result, the Appeal, being devoid of merits, fails and is dismissed.";