11.07.2025 Mishro Dev ro Devi and others v. Ajay Gupta Gupta and others
Case Details
1 (O&M) CR-6706-2023 (O&M [112] IN THE HIGH COURT OF PU AT CHANDIGAR IGARH OF PUNJAB AND HARYANA CR-6706- Date of De -2023 (O&M) of Decision : 11.07.2025 Mishro Dev ro Devi and others …Petitioners versus Ajay Gupta Gupta and others ….Respondents Coram : HON’BLE MR. JUSTICE PA PANKAJ JAIN Present: Mr. P.R. Yadav, Advocate for Mr. Amandeep Joshi, DAG, H Mr. Ajay Jain, Advocate for re te for the petitioners. AG, Haryana. for respondent Nos.1 to 8. **** PANKAJ J KAJ JAIN, J. (ORAL) [1] The present revision petition etition is directed against order date r dated 06.07.2023 .2023 and that dated 18.09.2023 pass 3 passed by the Additional Civil Judg il Judge (Senior Div ior Division), Narnaul. Vide order d rder dated 06.07.2023, the applicatio lication filed by the by the defendants under Order VII Rule 11 CPC was partly allowe allowed. The groun grounds on which the defendants dants sought dismissal of plaint, i.e. principle of iple of res judicata and bar under Ord Order 2 Rule 2 CPC, was rejected b ected by the Trial C rial Court, whereas plea with respect spect to affixation of ad volerum Cou Court fee was acc as accepted and the plaintiff was direc s directed to affix the ad volerum Cou Court fee. The p The plaintiff thereafter affixed the C the Court fee. Again objection wa ion was raised, whic d, which was decided vide order dated dated 18.09.2023, observing as under: under:- “The objection regarding the the affixing of inadequate court f rt fee
Legal Reasoning
stamp moved by the defendant dants No.1 to 4 shall be decided at th at the time of final decision of the pre e present case.”
Legal Reasoning
Mr. Yadav, counsel for the p r the petitioners, has assailed both th oth the [2] RAJNEESH SHARMA 2025.08.06 15:57 I attest to the accuracy and integrity of this document (O&M) CR-6706-2023 (O&M 2 orders. A . At the stage of preliminary hearing earing, this Court on 26.11.2024, whi 4, while issuing noti ng notice of motion, passed the followi ollowing order:- “ Counsel for the petition itioners while assailing the impugn ugned order has raised two-fold subm submissions. He submits that the prese resent suit could be barred by princ rinciple of res judicata, as the righ rights between the parties including ing the substantial issue raised in t in the present case already stands deci s decided in the earlier suit i.e. Civil Su il Suit No.100 RT of 2007, which was was dismissed vide judgment and decr decree dated 22.09.2015 and affirmed b ed by the learned Appellate Court dat t dated 07.09.2021, which was a title su tle suit claiming possession. He furth further submits that the present suit suit has been filed seeking decree ree of possession including decree of d of declaration and permanent injunctio nction and thus the plaintiff was requir equired to affix ad valorem Court fee fee in terms of Section 7 of the Court F rt Fee Act. After hearing counsel sel for the petitioners and careful refully perusing the records of the case case, this Court finds that so far as t as the first plea raised by Mr. Yad Yadav, counsel for the petitioners ers is concerned, the same sans merit. erit. The subsequent suit is between t en the same parties or the parties claim claiming under the parties in the earli earlier suit and the issues were also sa so same. However, the same were nev never decided on the merits for the the reason, suit for possession w n was dismissed as the land stood acq acquired by the State Government a nt and there was no assertion with respe respect to identify/area of land left. However, counsel for th r the petitioners seems to be right ght in contending that in terms of S of Section 7 of the Court Fee Act Act as interpreted by the Supreme Cou Court in the case of ‘Suhrid Singh ngh @ Sardool Singh versus Randhir dhir Singh and others’, 2010 AIR (SC (SC) 2807, once the plaintiffs claime imed possession, they were required ired to pay ad valorem Court fee. Notice of motion for 27.02 7.02.2025. ” [3] SLP No.5569 of 2025 was p was preferred against the said orde d order, which stand h stands decided vide order dated 21.0 d 21.02.2025, observing as under:- “1. RAJNEESH SHARMA 2025.08.06 15:57 I attest to the accuracy and integrity of this document The petitioners challenge enge the final judgment and order dat dated 26-11-2024 in CR No.670 .6706/2023 (O&M) passed by the Hig High (O&M) CR-6706-2023 (O&M 2. 3. 3 Court of Punjab & Harya aryana at Chandigarh. We have heard learned co ed counsel for the petitioner(s). Having considered the co e contentions made across the Bar, w ar, we do not find any reason to son to grant Special Leave to Appeal, eal, as the order is interim in in nature and the matter is alrea lready pending before the High igh Court. However, we clarify that Pa t Para No.2 of the impugned or order shall not be treated as havin having decided the issue on merit erits. The parties are at liberty to agi agitate the same in the matter pendin ending before the High Court. 4. As such, the present Speci pecial Leave Petition is dismissed. 5. Needless to add, it shall b all be open for the petitioners to pray f ray for interim relief in accordan dance with the law. 6. Pending application(s), if
Decision
s), if any, shall stand disposed of.” [4] Mr. Yadav, counsel for the pe the petitioners, has re-agitated the issu he issue with respec respect to res judicata. He refers to th rs to the averments made in the plaint plaint in the present resent suit, wherein reference has bee as been made to the earlier suit bearin bearing Civil Suit Suit No.100RT of 2007/2012 titled 2 titled as ‘Prem Nath and anothe another versus Mis s Mishro Devi and others’ and sub nd submits that once the document ha ent has been referr referred to in the plaint, the Court at urt at the stage of deciding applicatio lication under Orde r Order VII Rule 11 CPC is not pre ot precluded from looking at the sa the said documents ments and testing the application on on on the touch stone of the same. I me. In order to ha hammerforth his contentions, he r s, he relies upon ratio of law laid dow id down by the Supr e Supreme Court in the case of ‘K. A K. Akbar Ali versus K. Umar Kha Khan and others others’, reported as 2021(2) RCR ( CR (Civil) 287. Further reliance ha nce has been place placed upon ‘Popat and Kotecha echa Property versus State Bank o nk of India Staff Staff Association’, reported as 200 as 2005(4) RCR (Civil) 334 to subm submit that it is it is a duty of the Court to reject the ect the plaint when the same is hit b s hit by infirmities ities as enumerated under Order VII VII Rule 11 CPC and ‘Foreshore C ore Co- RAJNEESH SHARMA 2025.08.06 15:57 I attest to the accuracy and integrity of this document (O&M) CR-6706-2023 (O&M 4 operative ative Housing Society Limited ver ed versus Praveen D. Desai (Dead (Dead) through L ugh LRs and others’, reported as as 2015 AIR (SC) 2006, wherein th rein the mandate as ate as provided under Order 7 Rule 11 ule 11 CPC has been reiterated. [5] Mr. Yadav, counsel for the p the petitioners thus, submits that onc at once the plaintif laintiffs have unsuccessfully sought p ught possession of the same property perty in the earlier arlier suit, the present suit merely by ely by adding official defendants in in the array of th of the parties shall not be maintain aintainable and deserves to be rejecte rejected invoking O king Order VII Rule 11 CPC. [6] Per contra, Mr. Jain, counsel f unsel for respondent Nos.1 to 8, submi submits that as per s s per settled proposition of law, plea o , plea of res judicata is a mixed questio question of fact and ct and law and the same cannot be ot be adjudicated at the nascent sta stage without the out there being any evidence on recor record. He further submits that in in the earlier suit, er suit, there was no finding recorded orded with respect to title as is evide evident from Para N Para No.30 of the judgment, wherein erein reference was made to acquisitio uisition of the land e land. He submits that until and unle d unless it is proved as to under whic which khasra num number the land falls, the aforesa foresaid findings cannot be held to b ld to be icata. res judicata [7] I have heard counsel for the or the parties and have carefully gon lly gone through rec gh record of the case. [8] In order to appreciate the riv he rival contentions, it will be apt apt to peruse bare se bare provisions as contained under S under Section 11 and Order VII Rule 1 Rule 11 CPC, which , which reads as under:- “11. Res judicata.—No Court sh rt shall try any suit or issue in which t ich the matter directly and substantial ntially in issue has been directly an ly and substantially in issue in a forme ormer suit between the same parties, ies, or between parties under whom th m they or any of them claim, litigatin gating under the same title, in a Court c urt competent to try such subsequent su nt suit RAJNEESH SHARMA 2025.08.06 15:57 I attest to the accuracy and integrity of this document (O&M) CR-6706-2023 (O&M 5 or the suit in which such issue ha sue has been subsequently raised, and h nd has been heard and finally decided b ed by such Court. Explanation I.—The expression sion “former suit” shall denote a su a suit which has been decided prior to r to the suit in question whether or not r not it was instituted prior thereto. Explanation II.—For the purpose rposes of this section, the competence nce of a Court shall be determined irr d irrespective of any provisions as to s to a right of appeal from the decision ision of such Court. Explanation III.—The matter ab r above referred to must in the form former suit have been alleged by one p ne party and either denied or admitte mitted, expressly or impliedly, by the oth e other. Explanation IV.—Any matter w r which might and ought to have be been made ground of defence or at r attack in such former suit shall all be deemed to have been a matter d ter directly and substantially in issue sue in such suit. Explanation V.—Any relief cla f claimed in the plaint, which is n is not expressly granted by the decre decree, shall, for the purposes of th of this section, be deemed to have been een refused. Explanation VI.—Where person rsons litigate bona fide in respect of t of a public right or of a private righ right claimed in common for themselv selves and others, all persons intere nterested in such right shall, for t r the purposes of this section, be dee deemed to claim under the persons sons so litigating. Explanation VII.—The provisio visions of this section shall apply to y to a proceeding for the execution o on of a decree and references in th in this section to any suit, issue or or former suit shall be construed ed as references, respectively, to a p a proceeding for the execution of t of the decree, question arising in such such proceeding and a former proceedin eeding ree. for the execution of that decree. Explanation VIII.—An issue hea heard and finally decided by a court ourt of limited jurisdiction, competent ent to decide such issue, shall opera perate RAJNEESH SHARMA 2025.08.06 15:57 I attest to the accuracy and integrity of this document as res judicata in a subsequent su ent suit, notwithstanding that such cou court (O&M) CR-6706-2023 (O&M 6 of limited jurisdiction was not co ot competent to try such subsequent su nt suit or the suit in which such issue ha e has been subsequently raised. Order VII Rule 11. Rejection of n of plaint.—The plaint shall be reject jected in the following cases:— (a) where it does not disclose a c se a cause of action; (b) where the relief claimed is d is undervalued, and the plaintiff, o iff, on being required by the Court to c to correct the valuation within a time time to be fixed by the Court, fails to do do so; (c) where the relief claimed is d is properly valued but the plaint aint is written upon paper insufficiently ently stamped, and the plaintiff, on bein being required by the Court to supply pply the requisite stamp-paper within ithin a time to be fixed by the Court, fail , fails to do so; (d) where the suit appears from s from the statement in the plaint to to be barred by any law; (e) where it is not filed in duplica plicate; (f) where the plaintiff fails to com e 9]; comply with the provisions of Rule 9]; Provided that the time fixed by d by the Court for the correction of t of the valuation or supplying of the r the requisite stamp-papers shall not not be extended unless the Court, for for reasons to be recorded, is satisfi tisfied that the plaintiff was prevente ented by any cause of an exception tional nature from correcting the va e valuation or supplying the requisi quisite stamp-papers, as the case may b ay be, within the time fixed by the Cou Court and that refusal to extend such such time would cause grave injustice stice to the plaintiff. ” [9] There can’t be any quarrel uarrel with the proposition that th that the documents ments appended to the plaint form form part of the plaint and can b can be considered idered while adjudicating upon appli application under Order VII Rule 1 Rule 11 CPC. Refe Reference can be made to Order rder VII Rule 14 CPC, which provide provides that the doc the documents appended to the plaint f plaint form part of plaint. However, th ver, the question be tion before this Court is:- ‘Whether merely by referring ring to the plaint in the earlier suit suit a RAJNEESH SHARMA 2025.08.06 15:57 I attest to the accuracy and integrity of this document finding can be recorded that that subsequent suit is barred by r by res (O&M) CR-6706-2023 (O&M judicata.’ 7 [10] The issue arose before the Su the Supreme Court in a case, where wherein while deali dealing with the issue of the plaint be laint being barred by the principle of le of res judicata, ta, Supreme Court in ‘Keshav Sood v od versus Kirti Pradeep Sood’, 2023( 023(4) CCC 487 he held that:- 4. After having heard the the learned counsel appearing for t or the parties, we find that the plea o ea of res judicata could not have be e been gone into on an application ma n made by the appellant under Rule 1 ule 11 of Order VII of CPC. Apart f rt from pleadings in the earlier su r suit, several other documents which ich were relied upon by the appellant lant in his application under Rule 11 of 1 of Order VII of CPC were required ired to be gone into for deciding the issu issue of res judicata. 5. As far as scope of Rule 11 le 11 of Order VII of CPC is concerne erned, the law is well settled. The Cou Court can look into only the avermen rments made in the plaint and at the the highest, documents produced alon along with the plaint. The defence of e of a defendant and documents reli relied upon by him cannot be looked in tion. d into while deciding such application 6. Hence, in our view, the i the issue of res judicata could not ha t have been decided on an application tion under Rule 11 of Order VII of CP f CPC. The reason is that the adj adjudication on the issue involv volves consideration of the pleadings in gs in the earlier suit, the judgment of t of the Trial Court and the judgment of nt of the Appellate Courts. Therefore, w re, we make it clear that neither the lea e learned Single Judge nor the Divisio ivision Bench at this stage could have de ve decided the plea of res judicata raise raised by the appellant on merits. Similar observations were ma re made in ‘Prem Kishore v. Brah Brahm Prakash (SC)’ 2023(1) RCR RCR (rent) 398: 34. The general principle of of res judicata under Section 11 of t of the CPC contain rules of conclusi nclusiveness of judgment, but for r or res judicata to apply, the matter dire directly and substantially in issue in t in the subsequent suit must be the sa e same matter which was directly an ly and [11] RAJNEESH SHARMA 2025.08.06 15:57 I attest to the accuracy and integrity of this document (O&M) CR-6706-2023 (O&M 8 substantially in issue in the form former suit. Further, the suit should ha d have been decided on merits and nd the decision should have attain ttained finality. Where the former suit is it is dismissed by the trial court for wa r want of jurisdiction, or for default of t of the plaintiff’s appearance, or on t on the ground of non-joinder or mis-jo joinder of parties or multifariousnes sness, or on the ground that the suit wa it was badly framed, or on the ground und of a technical mistake, or for fail failure on the part of the plaintiff ff to produce probate or letter of adm administration or succession certifica tificate when the same is required by la y law to entitle the plaintiff to a decre ecree, or for failure to furnish secur security for costs, or on the ground und of improper valuation, or for failu failure to pay additional court fee on e on a plaint which was undervalued, o ed, or for want of cause of action, or o , or on the ground that it is premature ture and the dismissal is confirmed ed in appeal (if any), the decision, no , not being on the merits, would not not be suit. res judicata in a subsequent suit. 35. In the present case, befor efore examining the defendants’ groun round of res judicata to oppose the ev e eviction petition, several aspects m ts may have to be looked into. Whether ether such an issue was substantively vely at issue in the previous suit and sim d similar such other questions may cro y crop up. Powers under Order 7 Rule 1 ule 11 of CPC under such circumstanc stances would not be available. The H e High Court therefore, committed a ted an error in rejecting the plaint. 36. The seminal question tha that we need to decide in the prese resent appeal is whether the first suit suit i.e. the Eviction Petition No. 149 149 of 1996 filed by late Samey Singh w gh was dismissed on merits. To put it ut it in other words, whether the findin inding recorded by the Rent Controll troller while dismissing the Eviction ion Petition No. 149 of 1996 that t at the eviction petition deserves to b to be dismissed as the plaintiff Sam Samey Singh had failed to establish t sh the relation of landlord and tena tenant between the parties could be sai said to be on merits so as to render er the second Eviction Petition No. 13 o. 136 of 2001 not maintainable on t on the principles of res judicata. The same view was echoed in oed in ‘Eldeco Housing and Industri dustries Limited v. Ashok Vidyarthi arthi’, (SC) 2023 INSC 1043: [12] RAJNEESH SHARMA 2025.08.06 15:57 I attest to the accuracy and integrity of this document 9 26. However, the fact remain mains that all the aforesaid documen ments, referred to by the respondent in nt in support of his plea for rejection tion of the plaint, cannot be considered ered at this stage as these are not part part of the record with the Court filed al ed along with the plaint. This is the stan stand taken by the respondent-def defendant in the application filed fil under Order VII Rule 11 C.P.C .P.C. As noticed above, no amount unt of evidence or merits of the controv troversy can be examined at the stage tage of decision of the application under nder Order VII Rule 11 C.P.C. Trite it is that the issue with with respect to res judicata has to b as to be (O&M) CR-6706-2023 (O&M [13] adjudicated icated after appreciating the evidence idence on record regarding parties to th es to the suit, findin findings recorded in the earlier suit r suit and the evidence and the pray e prayer made in th in the subsequent suit. This Court Court finds that at the initial stage, th age, the plaint cann t cannot be rejected, claiming the same e same to be barred by res judicata as as it is not pos t possible to record findings to th to this respect without appreciatin eciating evidence in in subsequent suit in light of findi f findings in earlier suit. [14] In view of the above, finding inding no merits in the present revisio revision petition. T ion. The same is ordered to be dismi ismissed. [15] At this stage, Mr. Yadav, cou v, counsel for the petitioners, refers refers to Section 7(5 on 7(5) to submit that if the Court f ourt fee is deficient, the issue be ke be kept open. The . The contention being raised is wit is without even reading the impugne pugned order. Pre recisely, this is what the Trial Co rial Court has ordered. The issue ha ssue has been kept o kept open vide impugned order dated dated 18.09.2023. [16] All pending miscellaneous neous application(s), if any, stand stands disposed of ed off. .2025 11.07.2025 ‘R. Sharma' RAJNEESH SHARMA 2025.08.06 15:57 I attest to the accuracy and integrity of this document (PANKAJ JAIN) JUDGE Whether speaking/ reasoned Whether reportable : : Yes/No Yes/No