MAHESHWARI, J. - (1.) THIS revision petition is directed against the order dated 6. 10. 1999 passed by the Civil Judge (Sr. Division), Jodhpur in Civil Suit No. 62/98 whereby the learned Civil Judge rejected the application under Order 7 Rule 11 read with Section 11 of the Code of Civil Procedure (CPC) filed by the defendant petitioner.
(2.) THE civil suit for recovery of an amount of Rs. 50,000/- of damages has been filed by the plaintiff-non-petitioner with the averments in the plaint, inter alia, that the plaintiff was residing in a house at Gancha Gali, Mirchi Bazar, Jodhpur since the time of her birth and was sole heir of the parents and residing in the house as exclusive owner. According to the plaintiff, she was intentionally got entangled in the litigation by the defendant in respect of the said house by alleging herself to be a tenant and further falsely imputed taking of a loan of Rs. 300/- by her father. THE notice dated 16. 5. 1995 got served by the defendant was adequately replied on 23. 5. 1995 and damages for serving a false notice to the tune of Rs. 10,000/- were claimed. According to the plaintiff, despite receiving reply to the notice and despite being aware of the correct facts, the defendant filed a suit on 3. 8. 1995 before the District Judge, Jodhpur for recovery of possession of the house. Summons for appearance in the suit were received by her from the Court of Addl. District Judge No. 3, Jodhpur which caused her mental and physical agony. She was under serious tension on reading the averments in the plaint. A baseless application seeking temporary injunction was also filed without any reasonable cause. In order to continue to pressurize her, application for appointment of Commissioner was also made and when she was making preparations for the marriage of her son and the house was being repaired and renovated, the work was got stayed by obtaining injunction. THE written statement to the aforesaid false, malafide and baseless suit was filed and damages were claimed to the tune of Rs. 30,000/ -. THE plaintiff non-petitioner has averred that the false suit filed by the defendant (petitioner) was ultimately dismissed on 12. 5. 1997 on account of counsel for the present defendant (plaintiff in the said suit) pleading no instructions. THE plaintiff has claimed damages for defending the baseless suit and for mental agony. It appears that in this suit for damages filed by the plaintiff-non-petitioner, the defendant put in appearance on 24. 7. 1998 and after taking six adjournments for filing written statement, an application was filed on 15. 5. 1999 on behalf of the petitioner by his counsel contending that the compensation was claimed by the present plaintiff in the earlier suit and injunction application filed by the present defendant. According to the petitioner, in those cases, despite demand by the present plaintiff, the court has not passed any direction for awarding any compensation and this amounts to refusal of the relief in terms of Explanation-V of Section 11 CPC. The petitioner has contended that those decisions have not been challenged in any court and the same have attained finality, and therefore , present suit was barred by law under Sec. 11 CPC. On these contentions, the plaint was prayed to be rejected. In the reply to the said application, it has been submitted, inter alia, that the claim of compensation was never disallowed by the court and the same was to be decided at the time of final decision of the suit but the same was got dismissed on the counsel for the defendant (plaintiff in the said suit) pleading no instructions. The dismissal of suit could not have been challenged by the present plaintiff and her right of compensation remains intact. It was not in dispute that the claimed compensation in the earlier suit and a separate issue was framed but the same was never decided. The learned Civil Judge after hearing the parties has rejected the application by the impugned order dated 6. 10. 1999 and agreed with the submissions of learned counsel for the plaintiff that Section 11 CPC could be applied only when the rights between the parties are finally decided by the court. It was not so in the present case as the earlier suit was dismissed for no instructions. The applications was therefore, dismissed with costs. Learned counsel for the petitioner has vehemently contended with reference to the plattings in the written statement filed in the earlier suit that compensatory costs were claimed by the present plaintiff and even compensation was claimed in the application for temporary injunction which was also not granted. A specific Issue No. 7 was framed in the earlier suit on the question of compensatory costs but the same was never decided in favour of present plaintiff. Learned counsel has contended with reference to Explanation-V of Section 11 CPC that when the compensation was specifically claimed and was not granted the prayer would be deemed to have been refused and the present suit was not maintainable for the same relief. Learned counsel has also referred to provisions of Order 2 Rule 2 CPC and has relied on the decisions in the case of Mohamed Amin vs. Jogendra Kumar Bannerjee and Others (1); Bhupendra Nath Chatterjee and Others vs. Smt. Trinayani Devi (2); Lala Bhatwati Deen vs. Mohd. Ismail (3) and Ramdas vs. Mohammed Faqir Per contra, learned counsel for the non-petitioner has defended the impugned order and has submitted that the earlier suit was dismissed for no instructions on the part of plaintiff therein and the question of damages cannot be deemed to have been heard and finally decided within the meaning of Section 11 CPC.
(3.) HAVING heard learned counsel for the parties and having perused the record of the case, this court is clearly of the opinion that present revision is devoid of substance and deserves to be dismissed. The learned Civil Judge has dealt with the question involved in the application filed by the non-petitioner and has come to the conclusion that so far the subject matter of present case is concerned, the rights of parties regarding claim of damages cannot be deemed to have been heard and finally decided so as to attract the provisions of Sec. 11 CPC. It is required to be noted in the first place that the principles of res judicata in an abstract manner and form cannot be invoked for the purposes of Order 7 Rule 11 (d) of the Code of Civil Procedure so as to suggest that the suit itself is "barred by law". The Hon'ble Apex Court has explained the rule of res judicata in V. Rajeshwari vs. T. C. Saravanabava (5), thus:- " 11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause. " ;