Code of Civil Procedure 1908:
Or. 7 r. 11 – Rejection of plaint – Application u/Or. 7 r. 11 – When permissible – On facts, matter pertaining to property dispute wherein property initially in the name of first respondent and his brother, later mortgaged to State Finance Corporation as security for repayment of loan – Auction of property for non-payment of loan amount and property purchased by the third respondent and thereafter, execution of sale deed of property in his favour – However, the first respondent and his brother did not hand over the possession of the suit property – Suit for possession by the third respondent and on the other hand suit by first respondent challenging execution of sale deed by the State Finance Corporation in favour of the third respondent – Held: On a reading of the plaint of the subsequent suit, it is evident that the first respondent did not make an attempt to conceal the fact that a suit regarding the property was pending before the civil court at that time – At the time of institution of the subsequent suit by the first respondent, no decree had been passed by the civil court in the earlier suit – Thus, the issues raised in the earlier suit, at the time, had not been adjudicated upon – Thus, the subsequent plaint on the face of it, did not disclose any fact that may lead to the conclusion that it deserves to be rejected on the ground that it is barred by principles of res judicata – High Court and the trial court justified in holding that to decide on the arguments raised by the appellant, successor of third respondent, the court would have to go beyond the averments in the plaint, and peruse the pleadings, and judgment and decree in the earlier suit – Application u/Or. 7 r. 11 to be decided within the four corners of the plaint – Trial court and High Court correct in rejecting the application u/Or. 7 r. 11(d) – Plaint was not liable to be rejected u/Or. 7 r. 11(d) – Order passed by the High Court upheld. Or. 7 r. 11 – Rejection of plaint – Application u/Or. 7 r. 11 – Guiding principles to decide – Stated.
s. 11 – Res judicata – Rule of res judicata – Held: Court shall not try any suit or issue in which the matter that is directly in issue has been directly or indirectly heard and decided in a ‘former suit’ – Thus, for adjudicating on the issue of res judicata it is necessary that the same issue (that is raised in the suit) has been adjudicated in the former suit.
Dismissing the appeal, the Court
HELD: 1.1 Order 7 Rule 11(d) of CPC provides that the plaint shall be rejected “where the suit appears from the statement in the plaint to be barred by any law”. Hence, in order to decide whether the suit is barred by any law, it is the statement in the plaint which will have to be construed. The Court while deciding such an application must have due regard only to the statements in the plaint. Whether the suit is barred by any law must be determined from the statements in the plaint and it is not open to decide the issue on the basis of any other material including the written statement in the case. [Para 16][399-A-C]
1.2 Section 11 of the CPC enunciates the rule of res judicata : a court shall not try any suit or issue in which the matter that is directly in issue has been directly or indirectly heard and decided in a ‘former suit’. Therefore, for the purpose of adjudicating on the issue of res judicata it is necessary that the same issue (that is raised in the suit) has been adjudicated in the former suit. It is necessary that the exercise taken up by this Court is referred to while adjudicating on res judicata, before referring to res judicata as a ground for rejection of the plaint under Order 7 Rule 11. [Para 17][399-D-F]
1.3 The guiding principles for deciding an application under Order 7 Rule 11(d) are that to reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to; that the defense made by the defendant in the suit must not be considered while deciding the merits of the application that to determine whether a suit is barred by res judicata, it is necessary that (i) the ‘previous suit’ is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and that since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused. [Para 20][405-G-H; 406-A-D]
2.1 In the instant case, a meaningful reading of the plaint makes it abundantly clear that when the first respondent instituted the subsequent suit, he had been impleaded as the second defendant to the earlier suit. The first respondent instituted the subsequent suit, though he had knowledge of the earlier suit. The plaint in the subsequent suit which was instituted by the first respondent indicates that the he was aware of the mortgage executed in favour of KSFC, that KSFC had executed its charge by selling the property for the recovery of its dues and that the property had been sold on 8 August 2006 in favour of the predecessor of the appellant. As a matter of fact, the plaint contains an averment that there was every possibility that the first respondent may suffer a decree for possession in earlier suit which “has forced” the first respondent to institute the suit for challenging the legality of the sale deed. Given the fact that an argument was raised in the previous suit regarding no challenge having been made to the auction and the subsequent sale deed executed by the KFSC, it is possible that the first respondent then decided to exercise his rights and filed the subsequent suit. Be that as it may, on a reading of the plaint, it is evident that the first respondent has not made an attempt to conceal the fact that a suit regarding the property was pending before the civil court at the time. It is also relevant to note that at the time of institution of the subsequent suit by the first respondent, no decree had been passed by the civil court in the earlier suit. Thus, the issues raised in the earlier suit, at the time, had not been adjudicated upon. Therefore, the plaint, on the face of it, does not disclose any fact that may lead to the conclusion that it deserves to be rejected on the ground that it is barred by principles of res judicata. The High Court and the trial court were correct in their approach in holding, that to decide on the arguments raised by the appellant, the court would have to go beyond the averments in the plaint, and peruse the pleadings, and judgment and decree in the earlier suit. An application under Order 7 Rule 11 must be decided within the four corners of the plaint. The trial court and High Court were correct in rejecting the application under order
7 Rule 11(d). [Para 21][406-D-H; 407-A-C]
2.2 The plaint was not liable to be rejected under Order 7 Rule 11(d) and the findings of the trial court and the High Court are upheld. However, no opinion is expressed on whether the subsequent suit is barred by the principles of res judicata. The liberty is granted to the appellant, who claims as an assignee of the bona fide purchaser of the suit property in an auction conducted by KSFC, to raise an issue of the maintainability of the suit before the Additional Civil Judge, who would consider whether a preliminary issue should be framed under Order XIV, and if so, decide it within period of raising the preliminary issue. In any event, the suit shall be finally adjudicated upon within the outer limit of 31 March 2022. [Para 22][407-C-E]
2.3 The impugned judgment and order of the High Court is upheld. The application under Order 7 Rule 11 CPC is dismissed. [Para 23][407-E-F]
Soumitra Kumar Sen v. Shyamal Kumar Sen (2018) 5 SCC 644; V. Rajeshwari v. T. C. Saravanabava (2004)
1 SCC 551 : [2003] 6 Suppl. SCR 927; Kamala & others v. KT Eshwara Sa (2008) 12 SCC 661 : [2008] 7 SCR 39; Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust (2012) 8 SCC 706 : [2012] 6 SCR 404; Shakti Bhog Food Industries Ltd. v. Central Bank of India and Another (2020) SCC OnLine SC 482; Saleem Bhai v. State of Maharashtra (2003) 1 SCC 557 : [2002] 5 Suppl. SCR491 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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