Research › Search › Judgment

Chhattisgarh High Court · body

2014 DIGILAW 122 (CHH)

BALLU RAM SAHU v. LATA SAHU

2014-03-13

SANJAY K.AGRAWAL

body2014
ORAL ORDER Heard on admission. 1. This is defendants' revision under Section 115 of the Code of Civil Procedure (for short 'the CPC') challenging the legality and propriety of the order dated 13.2.2014 passed by Civil Judge, Class-I, Bhilai-3, Distt. Durg in Civil Suit No.13-A/20 13, rejecting the defendants' application filed under Order 7 Rule 11 of the CPC. 2. The plaintiffs namely Smt. Lata Sahu & Smt. Khedia Bai filed a suit for declaration that plaintiff No.1-Lata Sahu has a title holder of the scheduled suit land on the basis of sale deed dated 24.10.2009. On being noticed, defendants have filed an application under Order 7 Rule 11 of the CPC stating inter alia that the matter in issue in the present suit has been directly and substantially issue in the former suit between the same parties and, therefore, the present suit is hit by principle of res judicata as provided under Section 11 of the Code of Civil Procedure. 3. The trial Court, by its impugned order, has rejected the application finding no merit in the plea of res judicata raised by the applicant. 4. It is well settled that the plea of res judicata is a mixed question of law and fact and it has to be decided by proper pleadings filed i.e. copies of plaint, written statement and copy of the judgment of the earlier suit and the issue has to be framed in this regard and then such plea has to be decided by competent Civil Court. 5. The plea of res judicata only bars investigation and decision on merits finally decided between parties earlier if the defendant omits to plead the plea of res judicata and prove the same and the Court investigates and decides matters on merits. Such a decision would not be bad for want of jurisdiction. Plea of res judicata is one which might and ought to have been raised as a defence and established in order to operate as a bar in exercise of jurisdiction to try and dispose of the matter subsequently otherwise the latter decision will prevail and plea of res judicata itself will be barred by constructive res judicata and latter decision overlooking the bar of res judicata alone will prevail. 6. In Madhukar D. Shende Vs. 6. In Madhukar D. Shende Vs. Tarabai Aba Shedage (2002) 2 SCC 85 , the Supreme Court held that res judicata is a mixed question of law and fact and if the plea has not been raised by filing pleadings and the issues have not been framed and plea has not been raised, such a plea cannot be permitted to be raised for the first time. The Supreme Court held as under: "14. ...... Res judicata is a mixed question of fact and law. We do not find the plea of res judicata having been raised in the plaint. Copies of pleadings and issues framed in the earlier suit have not been tendered in evidence and we do not find any issue on res judicata having been framed and tried between the parties in the present suit. No submission raising the plea of res judicata was made before any of the courts below or the High Court. We do not think such a plea can be permitted to be raised before this Court for the first time and at the hearing........." 7. Reverting back to the facts of the instant case, the defendants have to establish the plea of res judicata by raising appropriate pleadings and if pleadings are so raised, issue has to be framed in this regard and upon leading evidence, such plea has to be established before the competent civil Court; and plea of res judicata being mixed question of law and facts and it cannot be considered in the application under Order 7 Rule 11 of the CPC. 8. In view of aforesaid judgment of the Supreme Court in the above referred cases, I do not find any jurisdictional error in rejecting the defendants' application filed under Order 7 Rule 11 of the CPC and as such the revision is dismissed reserving liberty in favour of the applicants/defendants to raise the plea and to establish the same during the course of trial. 9. No order as to costs. Revision Dismissed.