Nursing Home, Ajmer (Raj.) v. Smt. Pushpa Mittal D/o Late Shri Gauri Shankar Mittal

Dr. Abha Mittal D/o Late Shri Suresh Chand, Aged About 61 Years, R/o 87/24, Beawar Raod, Near St. Francis Nursing Home, Ajmer (Raj.) ----Petitioners Versus

1. Smt. Pushpa Mittal D/o Late Shri Gauri Shankar Mittal W/o Shri Madan Murari Agarwal, R/o 563/104-A, Chitragupt Nagar, Alambagh, Lucknow- 226005 (U.p)

2. Shri Shishir Agarwal S/o Shri Madan Murari Agarwal, Power Of Attorney Of Smt. Pushpa Mittal W/o Shri Madan Murari Agarwal, R/o 563/104-A, Chitragupt Nagar, Alambagh, Lucknow-226005 (U.p) Mob. No. 7991678677

3. Avinash Mittal S/o Late Shri Anand Mittal Grand S/o Late Shri Guarishankar Mittal, R/o A-37, Janta Colony Jaipur-4, District Jaipur (Raj.)

4. Ajay Mittal S/o Late Shri Anand Mittal Grand S/o Late Shri Guarishankar Mittal, Aged About 62 Years, R/o A-37, Janta Colony Jaipur-4, District Jaipur (Raj.)

5. Pradeep Mittal S/o Late Shri Anand Mittal Grand S/o Late Shri Guarishankar Mittal, Aged About 61 Years, R/o A-37, Janta Colony Jaipur-4, District Jaipur (Raj.)

6. Manoj Mittal S/o Late Shri Anand Mittal Grand S/o Late Shri Guarishankar Mittal, Aged About 55 Years, R/o A-37, Janta Colony Jaipur-4, District Jaipur (Raj.)

7. Smt. Manorama Mittal Widow Of Late Shri Anand Mittal, Aged About 79 Years, R/o A-37, Janta Colony Jaipur-4, District Jaipur (Raj.)

8. Smt. Ashadevi D/o Late Smt. Sheela Mittal And Shri Ramswaroop Agarwal, Aged About 63 Years, R/o Mohanlal (2 of 4) [CR-4/2024] Antesh Kumar Fabric Shop, Balaji Raod Todabhim, District Karauli (Raj.)

9. Smt. Aneeta, D/o Late Smt. Sheela Mittal And D/o Shri Ramswaroop Agarwal, R/o A25 Viyeshwar Society Near Balaji Hospital Behind T.c.s Company, Subhashpura, Baroda, Gujarat

10. Smt. Nidhi Agrawal D/o Late Smt. Savitri Mittal W/o Shri Sudip Garg, Aged About 46 Years, R/o 240 Krishna Nagar, Bharatpur, District Bharatpur (Raj.)

11. Shilpi Rajan, D/o Late Smt. Sharda Mittal, Aged About 50 Years, R/o C-119, Shivgyan Enclave, Nirman Nagar, Jaipur District Jaipur (Raj.)

12. Smt. Sakshi Agarwal D/o Late Smt. Usha Mittal, Aged About 43 Years, R/o 51 Frogmore Avenue Hayes Middlesex London U B 48 Ap. (Frogmore Avenue Hayes Middlesex London U B 48 Ap)

13. Shri Vishwas Agarwal S/o Late Smt. Usha Mittal And Late Shri Sunil, R/o Kothi Near Shorawal Sarai, Itawa (U.p)

14. Vimladevi W/o Late Shri Ashok Kumar, Daughter In Law Of Late Smt. Sheela, Aged About 65 Years, R/o 35 Amritnagar-2, Opp. Pawan Dham Society Near Sahyog Garva Ground, Mazalpur Barodra, (Gujarat)

15. Rajesh S/o Late Shri Ashok Kumar, Grand Son Of Late Smt. Sheela, R/o 35 Amritnagar-2, Opp. Pawan Dham Society, Near Sahyog Garva Ground, Mazalpur Barodra, (Gujarat), 9898540388

16. Gopal S/o Late Shri Ashok Kumar, Grand Son Of Late Smt. Sheela, R/o 35 Amritnagar-2, Opp. Pawan Dham Society, Near Sahyog Garva Ground, Mazalpur Barodra, (Gujarat), 9898540388 ----Respondents For Petitioner(s) : Mr. J. P. Goyal, Senior Adv. assisted by Ms. Simran Bhatnagar, Adv. Ms. Yashika Vijayvargiya, Adv. Mr. Siddharth Singh, Adv. For Respondent(s) : Mr. Shreyansh Sharma, Adv. (3 of 4) [CR-4/2024] HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA 05/05/2025 Order The present revision petition has been filed by the petitioners-defendants (for short ‘the defendants’) under Section 115 CPC against the order dated 29.08.2023 passed by the District Judge, Bharatpur (for short ‘the trial court’) in Rent Appeal.42/2020, whereby the trial court dismissed the application filed by the defendants under Order 7 Rule 11(D) read with Order 2, Rule 2 read with Section 151 CPC. Learned senior counsel for the defendants submits the respondent Nos.1 and 2/plaintiffs (for short ‘the plaintiffs’) filed a suit for partition and permanent injunction against the defendants as well as other proforma defendants in which the plaintiffs filed an application under Order 7 Rule 11(D) read with Order 2, Rule 2 read with Section 151 CPC to the effect that prior to the suit, the plaintiffs filed a suit under Section 38 of Specific Relief Act against the defendants’ father-Late Shri Suresh Chand Mittal before the Civil Judge in which plaintiffs claimed 1/7th share of the disputed property. The said suit was dismissed by the trial court on

28.02.2020. The plaintiffs had not challenged the said order passed by the trial court by way of the appeal. So, judgment of the trial court became absolute. So, the suit filed by the plaintiffs was barred by Law as well as res-judicata but the trial court vide order dated 29.08.2023 wrongly dismissed the application filed by the defendants under Order 7 Rule 11(D) read with Order 2, Rule 2 read with Section 151 CPC. So, the petition filed by the defendants be allowed, the order dated 29.08.2023 passed by the (4 of 4) [CR-4/2024] trial court be set-aside and the suit filed by the plaintiffs be dismissed being hit by res-judicata and barred by law. Learned counsel for the plaintiffs has opposed the arguments advanced by learned counsel for the defendants and submitted that the trial court vide order dated 29.08.2023 rightly dismissed the application filed by the defendants. Whether the suit filed by the plaintiffs was barred by law or hit by res-judicata, would be decided after evidence of the parties. So, the present petition being devoid of merit, is liable to be dismissed. I have considered the arguments advanced by learned senior counsel for the defendants as well as learned counsel for the plaintiffs. It is an admitted position that the question of res-judicata can not be decided in the application under Order 7 Rule 11(D) read with Order 2, Rule 2 read with Section 151 CPC. The said question would be decided after the evidence of the parties. So, in my considered opinion, the trial court has not committed any error in dismissing the application filed by the defendants. So, the present petition being devoid of merit, is liable to be dismissed, which stands dismissed accordingly. Pending application(s), if any, also stand(s), dismissed. However, the defendants are liberty to take all the averments/objections as raised in the application filed by them under Order 7 Rule 11(D) read with Order 2, Rule 2 read with Section 151 CPC before the trial court in the written statement. Gourav/44 (NARENDRA SINGH DHADDHA),J