- (1.) THE present writ petition has been filed for the quashing of the plaint dated 8. 5. 2006 in Original Suit No. 757 of 2006 and its entire proceedings. THE facts leading to the filing of the present petition is, that the petitioners and the contesting respondents have common ancestors and are in physical and cultivatory possession of their shares in pursuance of some alleged family settlement. It transpires that the predecessors of the petitioners filed suit No. 1463 of 1956 which was decreed by an order dated 2. 4. 1956 in terms of a compromise. It is alleged by the present petitioners that the said suit was filed collusively by the defendants in the name of the predecessors of the petitioners without their knowledge. When the petitioners came to know about this fraud and the collusive decree, they filed a suit for the cancellation of the decree which was dismissed, against which an appeal was filed, and during the pendency of the appeal, an application was filed by the petitioners for the withdrawal of the suit as well as of the appeal which was allowed by the lower appellate court. It is contended by the petitioners that the withdrawal was allowed with liberty to the petitioners to file afresh which fact is seriously disputed by the contesting respondent.
(2.) HOWEVER, notwithstanding the aforesaid, it transpires that the village was notified under Section 4 of the U. P. Consolidation of Holdings Act and, based on this notification, the petitioners filed their objections contending that they are entitled for a larger share and that the decree passed by the Civil Court was not only a collusive decree but a void order since the Civil Court had no jurisdiction to try the suit. This matter was contested by the answering respondents. The Consolidation Officer allowed the objection of the petitioners and, allocated a larger share and, in this process held that the decree passed by the Civil Court was a collusive decree and was liable to be ignored. The contesting respondents filed an appeal which was dismissed by an order dated 11. 9. 1991 and the revision was also dismissed by the Chief Revenue Officer/deputy Director Consolidation by an order dated 5. 6. 2000. The respondents being aggrieved by the said orders filed a Writ Petition No. 27061 of 2000, which was dismissed by a judgment dated 10. 7. 2005, against which, the defendants filed a Review Application which was also dismissed by an order dated 2. 5. 2005. The respondents thereafter filed a Special Leave Petition before the Supreme Court which was dismissed by a judgement dated 1. 8. 2005. The controversy with regard to the allocation of the shares finally came at rest and the dispute was settled once and for all. Notwithstanding the fact that the order of the Consolidation Officer had become final viz-a-viz the allocation of the shares between the petitioners and the respondents, the contesting respondents filed Suit No. 757 of 2006 praying that the order of the Chief Revenue Officer/deputy Director of Consolidation dated 5. 6. 2000 be declared void and unenforceable and that the judgment of the High Court should be ignored and the suit of the plaintiff/respondents should be decreed. The plaint allegation is, that the High Court committed an error in upholding the judgment of the Deputy Director of Consolidation and that the decree of the 1956 could not be held to be void by the Consolidation authorities. The petitioners, being aggrieved by the institution of the suit has filed the present writ petition, praying for the quashing of the proceedings of the plaint on the ground that not only the suit was barred by the principles of resjudicata but it is also a misuse of the process of the Court and that when the issue involved in the question had been finally settled at rest right upto the stage of the Supreme Court, the same could not be reopened on such grounds which are frivolous and contemptuous grounds.
(3.) HEARD Sri R. C. Singh, the learned counsel for the petitioners and Sri N. C. Rajvanshi, assisted by Sri M. K. Rajvanshi, the learned counsel for the contesting respondents. Sri Rajvanshi, the learned counsel for the contesting respondents submitted that the petitioners have a remedy of filing an application under Order VII Rule 11 of the C. P. C. for the rejection of the plaint and that the Civil Court had full power to reject the plaint and consequently, the Court should not interfere at this stage. In support of his submission, the learned counsel has placed reliance upon a decision of this Court in U. P. Avas Evam Vikas Parishad vs. State of U. P and others, 2001 (4) ALR 215, wherein it has been held that since the relief could be claimed under Order VII Rule 11 of the C. P. C. the remedy under Article 226 was not the appropriate remedy. The learned counsel also placed a decision in Aligarh Muslim University vs. VIIth Addl. C. J. M. (Addl. C. J.)Aligarh and another, 1999 (36)ALR 571, where the Court held that if the suit was barred under the provisions of the Stamp Act, the remedy available was to file an application under Order VII Rule 11 of the C. P. C. or get a preliminary issue framed on that issue.;