1 - Shakun Paleriya W/o Late Promod Paleriya (Wrongly Mention As D/o) Aged About v. 1 - Suresh Kumar
Case Details
1 AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.03.24 16:45:37 +0530 2025:CGHC:13798 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 135 of 2024 1 - Shakun Paleriya W/o Late Promod Paleriya (Wrongly Mention As D/o) Aged About 66 Years. 2 - Navnit Paleriya S/o Late Promod Paleriya, Aged About 43 Years. 3 - Lalit Paleriya S/o Late Promod Paleriya, Aged About 42 Years. 4 - Ranu @ Amit Paleriya S/o Late Promod Paleriya, Aged About 38 Years. All are R/o 15, Block Korba, Block, Tahsil And Taluka-Korba, District- Korba (C.G.) -----(Defendants). ...Applicants. versus 1 - Suresh Kumar Paleriya S/o Late Devendra Kumar Paleriya, Aged About 64 Years R/o Prem Nagar, Rajgamar, Tahsil - Korba, District- Korba (CG). 2 - The State of Chhattisgarh Through Collector, District- Korba (C.G.) 3 - Sub Divisional OfÏcer (Revenue), OfÏce Sub Divisional OfÏcer, Revenue Korba, District- Korba (C.G.). 4 - Tahsildar, Tahsil OfÏce, Tahsil Korba, District Korba (C.G.). ... Respondent(s) 2 For Applicants For Respondent No.1 : Shri Abhijeet Mishra, Advocate. For State : Shri Parag Kotecha, Advocate. : Shri Dilman Rati Minj, Govt. Advocate.
Legal Reasoning
support from a decision of this Court in National Institute of Mental Health & Neuro Sciences vrs. C.Parameshwara, (2005) 2 SCC 256 in which it has been held as follows: "8. The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is 11 identical. The key words in Section 10 are “the matter in issue is directly and substantially in issue” in the previous instituted suit. The words “directly and substantially in issue” are used in contradistinction to the words “incidentally or collaterally in issue”. Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject-matter in both the proceedings is identical." 13.For the foregoing discussion, this Court deems it appropriate to dispose of this revision reserving liberty in favour of applicants to move application under Section 10 of the CPC before the concerned trial Court. On such application being moved, the concerned trial Court shall consider and decide the same in accordance with law. Ordered accordingly. Till such adjudication, it is directed that further proceedings of the trial Court shall remain stayed.
Arguments
Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board 22.03.2025 1. This Civil Revision has been filed against the order dated 10.01.2024 passed by the Civil Judge Class-2 Korba District Korba (Chhattisgarh) in Civil Suit No.18-A/2020 whereby, application preferred by the applicants/defendants under Section 11 of Code of Civil Procedure that the suit is barred by res-judicata was dismissed. 2. Facts of the case in brief are that Respondent No.1/plaintiff had earlier filed a civil suit bearing No.24-A/2014 before 1st Civil Judge Class-1 Korba, District Korba (Chhattisgarh) for declaration, partition and permanent injunction of the subject property i.e. Khasra No.204, admeasuring area 0.410 hectare situated at village Nakatikhar, Patwari Halka No.5, Tehsil and District Korba. The said civil suit was dismissed vide judgment dated 31.03.2015, against which, Respondent No.1/plaintiff preferred Civil Appeal bearing No.22-A/2015 before Additional District Judge (FTC) Korba, District Korba (C.G.) which was also dismissed vide judgment dated 15.07.2022, against which, Second Appeal bearing No.445/2022 was filed which is pending consideration. 3. Learned counsel for the applicants submits that during the pendency of the first appeal, Respondent No.1 again filed a subsequent Civil Suit bearing No.18-A/2020 for the same property seeking almost the same reliefs by changing the words in the prayer clause. Hence, in both the suits, the 3 subject matter is directly and substantially the same, therefore, the principle of res-judicata attracts and filing of the subsequent civil suit is an abuse of process of Court. Lastly, he submits that the trial Court has wrongly dismissed the application filed by the applicants under Section 11 of the CPC and prays to allow this revision and the impugned order may be set aside. 4. On the other hand, learned counsel for Respondent No.1/plaintiff would submit that finality has not been attained as the second appeal is pending before this Court. Learned counsel further submits that in the matter of State of Andhra Pradesh And Others v. B. Ranga Reddy (DEAD) BY LEGAL REPRESENTATIVES AND OTHERS {(2020) 15 SCC 681} it has been categorically observed that when the findings are subject matter of the challenge in the appeals, principle of res-judicata would not attract and para 33 of the said judgment was referred, which read as under:- 33. Section 11 and Explanation I of the Code would be applicable in subsequent proceedings between the same parties or between the parties under whom they or any of them claimed under the same title. But the findings in the first and second suit will not operate as res judicata as such findings are subject matter of challenge in the appeals filed by the plaintiffs in their respective suits. All the three suits have been decided together and the three appeals pending against such judgment and decrees. Therefore, it cannot be said that the first and the second suits are the former suits as the decree passed therein has not attained finality. The findings recorded therein will not, therefore, operate as res judicata as the State is not obliged to challenge findings on Issue No.1 in the first and second suit even after the amendment of Order 41 Rule 22 of the Code. 4 5. Learned counsel for Respondent No.1 would further submit that the issue relating to the applicability of bar of res-judicata cannot be determined at the stage of rejection of plaint and the same can only be determined upon framing of the proper preliminary issues during trial of the suit as the averments only in the plaint itself may be considered at this stage. Learned counsel placed reliance in the matter of Srihari Hanumandas Totala vs. Hemant Vithal Kamat and Others [(2021) 9 SCC 99] and referred to para 17, 18, 25 and 28, which are reproduced hereunder:- “17. Order 7 Rule 11(d) 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. 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 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.” 18. Section 11 CPC enunciates the rule of res 5 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 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. R.C. Lahoti, J. (as the learned Chief Justice then was), speaking for a two-Judge Bench in V. Rajeshwari v. T.C. Saravanabava[(2004) 1 SCC 551] discussed the plea of res judicata and the particulars that would be required to prove the plea. The Court held that it is necessary to refer to the copies of the pleadings, issues and the judgment of the “former suit” while adjudicating on the plea of res judicata: (SCC pp. 556-57, paras 11 and 13) “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. 13. Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. Maybe, in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780] the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which 6 operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh v. Bhooralal [AIR 1964 SC 1810 : (1964) 7 SCR 831] placing on a par the plea of res judicata and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council [(1887-88) 15 IA 186] pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.” (emphasis supplied) 25. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarized as follows: 25.1. To reject a plaint on the ground that the 7 suit is barred by any law, only the averments in the plaint will have to be referred to. 25.2. The defense made by the defendant in the suit must not be considered while deciding the merits of the application. 25.3. 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. 25.4. 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. 28. For the above reasons, we hold that the plaint was not liable to be rejected under Order 7 Rule 11(d) and afÏrm the findings of the trial court and the High Court. We clarify however, that we have expressed no opinion on whether the subsequent suit is barred by the principles of res judicata. We grant liberty 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, Belgaum in OS No. 138/2008. The Additional Civil Judge, Belgaum shall consider whether a preliminary issue should be framed under Order 14, and if so, decide it within a period of 3 months of raising the preliminary issue. In any event, the 8 suit shall be finally adjudicated upon within the outer limit of 31-3-2022.” 6. Learned counsel for Respondent No.1 submits that when the issue in both the suits is similar, Section 10 of the CPC would apply and on such score, this revision being bereft of merit and substance deserves to be dismissed. 7. I have heard learned counsel for the parties and perused the material placed in the revision carefully. 8. Having considered the principles laid down in the matter of Srihari Hanumandas Totala (supra), it is vivid that applicability of bar of res- judicata cannot be decided at the stage of Order 7 Rule 11 (d) of CPC which has limited application. Such a conclusion must be drawn from the averments made in the plaint. It must be shown that the suit is barred under any law. If the defense sets up a case that the principle of res- judicata applies, it is necessarily requires consideration of the pleadings, issues and decisions in the previous suit, such a plea would be beyond the scope of Order 7 Rule 11 (d) CPC. Further, finality has not been attained as the second appeal arose out of the previous suit is pending. 9. In the matter of Sheodan Singh v. Darvao Kanwar {1966 AIR 1332} it is well settled that where a decree on the merits is appealed from, the decision of the trial court loses its character of finality and what was once res-judicata again becomes res subjudice and it is the decree of the appellate court which will then be res judicata. 10.Reverting back to the facts of the present case, admittedly, Respondent No.1/plaintiff had earlier filed a civil suit bearing No.24-A/2014 for the subject land Khasra No.204 for declaration of title, partition and permanent injunction and the present civil suit has been filed for 9 declaration and permanent injunction for the same subject land, as per the averments made at para 9 of the plaint regarding old Khasra No.329 and new Khasra No.204 and relief has been sought in the prayer clause at para 15 for the said subject land. Though, the trial Court, while considering the application filed by the applicants herein, has made an observation that the parties and subject matter are identical but only on the ground that reliefs sought are different, dismissed the application. 11.When finality has not been attained in respect of the earlier civil suit, in such circumstances, the principle of Section 10 of the CPC res-subjudice would attract, wherein the matter in issue is directly and substantially the same in both the suits. 12.In the matter of Dr. Manish Rastogi v. Preetam Singh Kirar {2022 SCC OnLine MP 558} passed in Misc. Petition No.2377/2021, the High Court of Madhya Pradesh has made observation as regards Section 10 in Para 15, which reads as under:- "15. It would be apposite to reiterate the guidance of Apex Court as given in the case of Aspi Jal and Anr. Vs. Khushroo Rustom Dadyburjor, AIR 2013 SC 1712: “11. From a plain reading of the aforesaid provision, it is evident that where a suit is instituted in a Court to which provisions of the Code apply, it shall not proceed with the trial of another suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. For application of the provisions of Section 10 of the Code, it is further required that the Court in which the previous suit is pending is competent to grant the relief claimed. The use of negative expression in Section 10, i.e. “no court shall proceed with the trial of any suit” makes the 10 provision mandatory and the Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the Code are satisfied. The basic purpose and the underlying object of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceeding. The view which we have taken finds
Decision
14.With the aforesaid observation/direction, this Revision is disposed of. Sd/- (Deepak Kumar Tiwari) Judge Avinash