1 - Smt. Pushpa Bai W/o Mangal Das Satnami Aged About 68 Years R/o v. 1
Case Details
1 2025:CGHC:37316 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 189 of 2025 1 - Smt. Pushpa Bai W/o Mangal Das Satnami Aged About 68 Years R/o Village- Akolikala, Tahsil- Arang, District- Raipur (C.G.) (Defendant No.1) ... Revisioner versus 1 - Smt. Digeshwari Verma W/o Ramesh Kumar Verma, R/o Parsada Sonth, Tahsil- Abhanpur, District- Raipur (C.G.) (Plaintiff) 2 - Avinash Kateliha S/o Ashok Kateliha, R/o B/6, Jindal Stop Colony, Jindal Steel And Tower Limited, National Highway, Mandir Hassaud, Tahsil- Arang, District- Raipur (C.G.) (Defendants) 3 - State Of Chhattisgarh Through The Collector, District- Raipur (C.G.) ... Respondent(s) For Revisioner For State : : Mr. Krishna Kumar Dewangan, Advocate Ms. M. Asha, Panel Lawyer (Hon'ble Shri Amitendra Kishore Prasad, Judge) Order on Board 30/07/2025
Facts
1. The revisioner / defendant has preferred the present revision petition under Section 115 of the Code of Civil Procedure, feeling aggrieved by the order dated 29.10.2021 passed by the learned trial Court, whereby the application filed by the defendant under Order 7 Rule 11 C.P.C., was dismissed. 2. Facts of the case, in a nutshell, are that the revisioner / defendant no. 1 initially instituted a civil suit seeking a declaration of title, permanent injunction, and a consequential relief that the sale deed dated 06.08.2010, executed by respondent no. 2 in favour of respondent no. 2 1 in respect of the land bearing Khasra No. 389, measuring approximately 0.99 hectares situated at Village Akoli, be declared null and void, and consequently held not binding upon the applicant. The revisioner asserted that he is the recorded owner of the said land (Khasra No. 389), and contended that respondent no. 2 had fraudulently obtained a power of attorney from the applicant. It was further submitted that on the basis of this forged or invalid power of attorney, respondent no. 2 executed the sale deed dated 06.08.2010 in favour of respondent no. 1. The aforesaid suit was registered as Civil Suit No. 166-A/2011 before the learned Eighth Additional District Judge, Raipur. After due adjudication, and following a detailed hearing of the parties, the learned trial Court delivered its judgment and decree on 16.04.2019, decreeing the suit in favour of the revisioner / defendant no. 1. The Court held that the sale deed dated 06.08.2010 was null and void and consequently not binding upon the applicant. It is pertinent to note that respondent no. 1, aggrieved by the said judgment and decree, preferred an appeal before this Court. The appeal was registered as First Appeal No. 292/2019 and is presently pending adjudication. During the pendency of the aforesaid appeal, respondent no. 1 instituted a fresh suit seeking declaration of title, permanent injunction, and a permanent prohibitory injunction in respect of the same property, i.e., the land bearing Khasra No. 389. Upon service of notice in the second suit, the revisioner / defendant no. 1 filed an application under Order 7 Rule 11(d) of the Code of Civil Procedure, contending that the subject matter of the second suit was already conclusively adjudicated in Civil Suit No. 166-A/2011 by the judgment and decree dated 16.04.2019 passed by the learned Eighth Additional 3 District Judge. The revisioner submitted that the subsequent suit filed by respondent no. 1 in respect of the same property was barred by the principle of res judicata, and accordingly prayed for dismissal of the suit. In response, the respondent no. 1 / plaintiff filed a detailed reply to the application, asserting that the subsequent suit was not barred by the principle of res judicata and therefore prayed that the application be rejected. After hearing the submissions of both parties, the learned trial Court, by the impugned order dated 29.10.2021, rejected the application filed under Order 7 Rule 11 CPC, holding that the suit was not barred by the principle of res judicata and was thus maintainable. 3. Learned counsel for the revisioner submits that the impugned order dated 29.10.2021 passed by the learned trial Court is bad in law, perverse, illegal, and erroneous. It suffers from grave non-application of mind and warrants interference by this Court. Consequently, the said order is liable to be set aside and quashed. The learned trial Court has manifestly failed to appreciate the settled legal position that the suit between the revisioner / defendant no. 1 and respondents no. 1 and 2 relating to the same suit land bearing Khasra No. 389 was already decided by the learned Eighth Additional District Judge by virtue of the judgment and decree dated 16.04.2019 in Civil Suit No. 168-A/2011. The subsequent suit instituted by respondent no. 1 in respect of the identical property is therefore barred by the well-established principle of
Legal Reasoning
Rule 11 of the Code of Civil Procedure. Prima facie, the civil suit filed by respondent no. 1 is barred by res judicata. The trial Court ought not to have entertained or dismissed the application filed by the applicant under Order 7 Rule 11 CPC, which sought dismissal of the suit on this very ground. The rejection of this application is contrary to settled legal principles and causes miscarriage of justice. The failure of learned trial court to apply the provisions of Order 7 Rule 11 of CPC and to recognize the bar of res judicata constitutes a clear error warranting interference by this Court. The suit is liable to be dismissed summarily at the threshold without burdening the parties or the Court with protracted litigation on an issue already decided. In view of the foregoing, it is prayed that this Court may be pleased to set aside and quash the impugned order dated 29.10.2021 passed by the learned trial Court and allow the application filed under Order 7 Rule 11 CPC by dismissing the suit filed by respondent no. 1. 4. At the outset, it is submitted by learned State Counsel that the impugned order dated 29.10.2021 passed by the learned trial court is a reasoned and well-considered order passed after due hearing of the 5 parties and careful examination of the facts and law. There is no perversity, illegality, or jurisdictional error in the said order warranting interference by this Court. The revision petition filed by the revisioner is therefore liable to be dismissed. The learned trial Court has correctly held that the issue of res judicata raised by the revisioner cannot be decided in a summary proceeding under Order 7 Rule 11 CPC, without a detailed examination of the pleadings, evidence, and documents, including the nature and cause of action of both the suits. The principle of res judicata is a mixed question of fact and law which requires a full trial, framing of issues, and appreciation of evidence, which cannot be done at the preliminary stage. It is submitted that although the earlier suit bearing Civil Suit No. 168-A/2011 was decreed in favor of the revisioner, the pendency of appeal against the said judgment and decree before this Court (First Appeal No. 292/2019) does not ipso facto bar the institution of a fresh suit if the cause of action or subject matter in the subsequent suit differs even slightly or if the plaintiff has a bona fide claim. The trial Court is best suited to examine the maintainability of the suit after detailed trial. The contention that the second suit is barred by lis pendens or the principle of res judicata is premature at this stage. The averments made by the parties in the plaint and written statements need to be thoroughly scrutinized to ascertain whether the parties, cause of action, and subject matter are indeed identical in both suits. The learned trial Court has rightly refused to decide this issue on the basis of preliminary submissions alone. The remedy under Order 7 Rule 11 CPC is to weed out only those suits which are clearly barred on the face of the plaint. In the present case, the suit filed by respondent no. 1 is not barred on the face of the plaint 6 as there exist genuine disputes regarding the validity of the sale deed and other related facts. Thus, the application for dismissal under Order 7 Rule 11 CPC was rightly rejected by the learned trial Court. It is also submitted that the suit filed by respondent no. 1 challenges the validity of the sale deed dated 06.08.2010 executed by respondent no. 2 in favor of respondent no. 1, which allegedly was obtained on the basis of a fraudulent power of attorney. These factual disputes and allegations of fraud cannot be adjudicated in a summary proceeding and require detailed evidence to be led. The approach of learned trial court is in consonance with the settled legal position that issues of res judicata and maintainability require adjudication after framing of issues and evidence, and cannot be decided by an outright dismissal at the threshold unless barred on the face of the plaint. This approach ensures that parties are not unjustly deprived of their day in Court. In view of the above, it is submitted that there is no infirmity or legal error in the impugned order, and the revision filed by the revisioner is devoid of merit and liable to be dismissed. 5. I have heard learned counsel for the parties and have also perused the documents appended along with the revision. 6. The primary issue involved in this revision petition under Section 115 of the Code of Civil Procedure is whether the learned trial Court committed an error in rejecting the application of defendant under Order 7 Rule 11(d) CPC, which sought dismissal of the suit on the grounds of res judicata and lis pendens. 7. At the outset, it is pertinent to recapitulate the well-settled legal position laid down by the Hon’ble Supreme Court in a series of decisions. In the 7 matter of Pandurangan vs. T. Jayarama Chettiar & Anr., reported in 2025 SCC OnLine SC 1425 has held that a plea of 'res judicata' cannot be decided in an application filed under Order VII Rule 11 of the Code of Civil Procedure for rejection of a plaint. The Court held that res judicata is an issue to be decided in trial and cannot be summarily decided in an application to reject the plaint. 8. Hon’ble Supreme Court in the matter of Keshav Sood vs. Kirti Pradeep Sood, reported in 2023 SCC OnLine SC 2459 has took a strong view against the plea of res judicata being raised in applications seeking rejection of plaint and held as follows : “5. As far as scope of Rule 11 of Order VII of CPC is concerned, the law is well settled. The Court can look into only the averments made in the plaint and at the highest, documents produced along with the plaint. The defence of a defendant and documents relied upon by him cannot be looked into while deciding such application. 6. Hence, in our view, the issue of res judicata could not have been decided on an application under Rule 11 of Order VII of CPC. The reason is that the adjudication on the issue involves consideration of the pleadings in the earlier suit, the judgment of the Trial Court and the judgment of the Appellate Courts. Therefore, we make it clear that neither the learned Single Judge nor the Division Bench at this stage could have decided the plea of res judicata raised by the appellant on merits.” 9. In the matter of Srihari Hanumandas Totala vs. Hemant Vithal Kamat & Ors., reported in (2021) 9 SCC 99, Hon’ble Supreme Court has held that the adjudication of the plea of res judicata is beyond the 8 scope of Order VII, Rule 11 of C.P.C., the Hon’ble Supreme Court has held as under : “25. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarised as follows: 25.1. 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. 25.2. The defence 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.” 10. These rulings establish beyond doubt that the scope of Order 7 Rule 11 CPC is limited to examining the plaint alone, along with the documents filed by the plaintiff. The defence taken by the defendant and the materials submitted by them cannot be considered while deciding such applications. Further, the question of whether a suit is barred by res 9 judicata is a mixed question of law and fact. Its determination requires a detailed comparison of the earlier and subsequent suits, including the pleadings, the framed issues, the cause of action, the identity of the parties, and whether the earlier judgment was rendered by a competent Court. These aspects cannot be conclusively determined solely on the basis of the plaint in the subsequent suit and therefore fall outside the purview of Order 7 Rule 11(d) CPC. 11. In the present case, the revisioner/defendant contends that the subsequent suit filed by the plaintiff (respondent no. 1) is barred by res judicata in view of the earlier judgment and decree dated 16.04.2019 passed in Civil Suit No. 166-A/2011, and that the pendency of the appeal in First Appeal No. 292/2019 attracts the bar of lis pendens. However, a perusal of the impugned order shows that the trial Court has rightly held that these issues require detailed examination and cannot be summarily adjudicated without trial. The learned trial Court correctly observed that the plea of res judicata cannot be conclusively decided without examining the pleadings, framing of issues, and leading of evidence. The allegations made in the subsequent suit, including those of fraud in the execution of the power of attorney and sale deed dated 06.08.2010, are factual in nature and require adjudication through a full-fledged trial. Such complex issues cannot be
Arguments
res judicata as enshrined under Section 11 of the Code of Civil Procedure. The failure of trial Court to dismiss the suit on this ground is legally untenable. It is further submitted that the appeal arising out of the judgment and decree dated 16.04.2019 is currently pending before this Court in First Appeal No. 292/2019. In light of the pendency of this 4 appeal, the second suit filed by respondent no. 1 is also not maintainable in law. The principle of lis pendens applies, barring the institution of a fresh suit involving the same parties and identical cause of action pending adjudication of the appeal. The learned trial Court has also failed to recognize that, admittedly and apparently, the suit is barred by the doctrine of res judicata. This bar is absolute and prohibits the filing and continuation of any subsequent suit involving the same cause of action and parties once a final decree has been passed. Therefore, the suit is not maintainable under the provisions of Order 7
Decision
disposed of at the threshold stage merely on the basis of a preliminary objection. This position is further fortified by the judgment of this Court dated 04.04.2024 in a comparable matter involving similar contentions. It was held therein that the plea of res judicata could not be decided under Order 7 Rule 11 CPC and required detailed scrutiny at trial. In that case as well, the Court emphasized that dismissal of suits at the 10 preliminary stage without fully appreciating the factual distinctions and legal contentions could result in injustice. 12. In view of the legal position crystallized by the Hon’ble Supreme Court and consistent approach by this Court, no infirmity or jurisdictional error is found in the order dated 29.10.2021 passed by the learned trial Court. The discretion exercised by the trial Court is legally sound and based on settled jurisprudence. There is no merit in the contention that the suit is barred on the face of the plaint. Accordingly, no interference is warranted in the exercise of revisional jurisdiction under Section 115 CPC. The revision petition, being devoid of merit, is liable to be dismissed. 13. In view of the foregoing discussion, the revision petition stands dismissed. The order dated 29.10.2021 passed by the learned trial Court is hereby affirmed. The trial Court is directed to proceed with the suit and decide all issues, including the question of res judicata, on merits after framing of issues and in accordance with law Digitally signed by SHAYNA KADRI Shayna Sd/- (Amitendra Kishore Prasad) JUDGE