Afr High Court
Case Details
1 Digitally signed by GOPAL SINGH Date: 2025.06.26 19:07:21 +0530 2025:CGHC:27028 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 109 of 2025 1 - Yakub Mohmmad S/o Late Shri Tar Mohmmad Aged About 58 Years R/o. Muslman Para Simga, Tah. Simga, Distt.- Balodabazar-Bhatapara (C.G.) 2 - Mohmmad Ikbal Kureshi S/o Shri Mohmmad Yakub Aged About 32 Years R/o. Muslman Para Simga, Tah. Simga, Distt.- Balodabazar-Bhatapara (C.G.)
Legal Reasoning
31. This Court in Soumitra Kumar Sen v. Shyamal Kumar Sen, (2018) 5 SCC 644 was examining a case where the defendant had moved an application before the trial court under Order 7 Rule 11 of CPC requesting the court to reject the plaint on the ground of res judicata. The Courts below had rejected such a prayer upon which the defendant had approached this Court. This Court, referring to its various judgments on the point, upheld such orders observing that if the averments made by the appellant in the written statement are correct, the suit may not be maintainable. However, at this stage, as rightly held by this Court, the defence in the written statement cannot be gone into. One has to look into the plaint for the purpose of deciding application under Order 7 Rule 11 CPC. 32. While holding that "recourse to Order 7 Rule 11" by the appellant was not appropriate, this Court observed that the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decided them in the first instance. The Court held that this course of action would help the appellant avoid lengthy proceedings. 33. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) CPC can be summarised as follows: (i) 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; 5 (ii) The defence made by the defendant in the suit must not be considered while deciding the merits of the application; (iii) To determine whether a suit is barred by res judicata, it is necessary that (a) the "previous suit" is decided, (b) the issues in the subsequent suit were directly and substantially in issue in the former suit; (c) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (d) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and (iv) 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. (See: Srihari Hanumandas Totala v. Hemant Vithal Kamat (2021) 9 SCC 99) 35. In the present case, before examining the defendants' ground of res judicata to oppose the eviction petition, several aspects may have to be looked into. Whether such an issue was substantively at issue in the previous suit and similar such other questions may crop up. Powers under Order 7 Rule 11 of CPC under such circumstances would not be available. The High Court therefore, committed an error in rejecting the plaint.” 6. In light of settled proposition of law and the aforesaid dictum of the Hon’ble Supreme Court it is quite vivid that the application filed under Order 7 Rule 11 CPC for dismissal of the plaint cannot be allowed holding the suit to be barred by res judicata as per defence raised by the defendants. For deciding such an application under Order 7 Rule 11(d) CPC 6 only plaint averments are required to be seen and the issue of res judicata can only be decided in the trial after framing issues and after perusal of the earlier plaint, documents and the judgment of the earlier suit while going through the reliefs as sought in the present matter. It cannot be decided on mere filing of an application under Order 7 Rule 11 CPC. 7. Facing this situation, learned counsel for the applicants submits that the concerned Trial Court may kindly be directed to consider the same and frame an issue in this respect if such an objection is raised by the applicants in their written statement. No such direction is required to be issued if the applicants will file their written statement raising this issue or they have already filed their written statement raising this issue. Certainly the Trial Court will frame an issue in respect of res judicata and will decide the same in accordance with law. 8. Accordingly, the revision being sans of merit is liable to be dismissed and is accordingly dismissed. However, it is expected from the Trial Court to do the needful at appropriate time if such an objection is raised. 9.
Arguments
3 - Mohammad Akram Kureshi S/o Shri Mohmmad Yakub Aged About 21 Years R/o. Muslman Para Simga, Tah. Simga, Distt.- Balodabazar-Bhatapara (C.G.) 4 - Mohmmad Arshad Kureshi S/o Shri Mohmmad Yakub Aged About 26 Years R/o. Muslman Para Simga, Tah. Simga, Distt.- Balodabazar-Bhatapara (C.G.) versus ... Applicants 1 - Peer Mohmmad S/o Late Shri Tar Mohmmad Aged About 61 Years By Power Of Attorney Praveen Bano And Imran Kureshi, R/o. Muslman Para Simga, Tah. Simga, Distt.- Balodabazar-Bhatapara (C.G.) 2 - State Of Chhattisgarh Through- Collector, Balodabazar Bhatapara, Distt.- Balodabazar- Bhatapara (C.G.) For Applicants For State : : ... Respondents Shri Ravindra Sharma, Advocate Ms. M. Asha, Panel Lawyer Hon’ble Shri Justice Amitendra Kishore Prasad Order on Board 23/06/2025 2 1. The applicants/defendants No.1 to 4 have filed this revision under Section 115 CPC challenging the impugned order dated 22.3.2025 passed by the Civil Judge Senior Division, Simga, District Baloda Bazar – Bhatapara in Civil Suit No.27-A/2023 by which the application filed by the present applicants/defendants under Order 7 Rule 11 CPC for rejection of plaint on the ground of suit being barred by res judicata has not been considered under Order 7 Rule 11(d) CPC. According to learned counsel for the applicants, there is apparent evidence on the face of it that the suit as filed by the plaintiff/respondent No.1 is hit by principle of res judicata and as such it is required to be dismissed at the threshold. However, the same has not been considered by the Trial Court, as such this revision has been filed. 2. I have heard learned counsel for the applicants. 3. The law in this respect is already settled. The principle of res judicata applicable in the case cannot be decided under Order 7 Rule 11 CPC. The Hon’ble Supreme Court has clarified that Order 7 Rule 11 CPC which deals with rejection of plaint is limited what apparent from the plaint itself and the documents accompanied it. Res judicata on the other hand requires an examination of previous suit(s), pleading(s), issue(s) and judgment(s) which comes beyond the scope of Order 7 Rule 11 CPC. It is not a pure question of law, but a 3 mixed question of fact and law requiring evidence beyond the plaint. Therefore, it cannot be decided at the initial stage of considering an application filed under Order 7 Rule 11 CPC. 4. Time and again the Hon’ble Supreme Court has explicitly held that res judicata cannot be basis for rejecting a plaint under Order 7 Rule 11(d) CPC. 5. The issue in respect of dismissal of the plaint on the ground of res judicata has been dealt by the Hon’ble Supreme Court on several occasions. In a recent case, in the matter of Prem Kishore and others v. Brahm Prakash and others, (2023) 19 SCC 244, the Hon’ble Supreme Court has held as under: “24. Before proceeding to refer to precedents on the interpretation of Order 7 Rule 11(d) CPC, we find it imperative to refer to Section 11 of CPC which defines res judicata: "11. Res judicata. - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." 25. Section 11 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 4 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 we refer to the exercise taken up by this Court while adjudicating on res judicata, before referring to res judicata as a ground for rejection of the plaint under Order 7 Rule 11.
Decision
No order as to costs. Gopal Singh Sd/- (Amitendra Kishore Prasad) JUDGE