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2024 DIGILAW 172 (RAJ)

Kachra S/o Lakshi Bhil v. Ayub S/o Ibrahim Sheikh

2024-01-25

MADAN GOPAL VYAS

body2024
JUDGMENT : The instant civil revision petition under Section 115 of the CPC has been filed by the petitioner-defendant no.1 against the order dated 23.09.2022 passed by learned Civil Judge, Sagwara, District Dungarpur (hereinafter referred to as the learned Trial Court) in Civil Original Suit No. 47/2022 whereby the learned Trial Court dismissed the application filed by the petitioner-defendant no. 1 under Section 11 read with Order 7 Rule 11 and read with Section 151 of the CPC. 2. Learned counsel for the petitioner submits that the learned Trial Court has erred in law while passing the impugned order. It is submitted that the suit is barred by res-judicata because a similar suit for permanent injunction based upon same facts was dismissed by the learned Trial Court vide judgment and decree dated 18.11.2005. The cause of action in both the suits is the same. It is further submitted that the former suit which was decided on 18.11.2005, was filed by the father of respondents-plaintiffs against the family members of the petitioner-defendant and was based on the same cause of action. Under the provisions of Section 11, CPC, a subsequent suit is barred if a former suit is decided between the same parties, or between parties under whom they or any of them claim litigating under the same title if the matter in issue is directly and substantially the same as in the former suit. In the present suit, the parties are legal heirs of the parties in the former suit and the subject matter of both the suits is same. Thus, the present suit is barred by res-judicata. Lastly, it is submitted that the learned Trial Court has erred in applying the provisions of Section 11 CPC in its correct perspective and thus the impugned order may be quashed and set aside. In support of his contentions, learned counsel relied upon the following judgments: (I) Ishwardas v. Satte of MP, reported in 1979 0 AIR (SC) 551. (II) Saroja v. Chinnusamy (Dead) by LRs, reported in 2007 0 Supreme (SC) 1108. 3. In support of his contentions, learned counsel relied upon the following judgments: (I) Ishwardas v. Satte of MP, reported in 1979 0 AIR (SC) 551. (II) Saroja v. Chinnusamy (Dead) by LRs, reported in 2007 0 Supreme (SC) 1108. 3. Thus, in view of the aforenoted legal submissions, it is prayed by the learned counsel that the present revision petition may be allowed and the impugned order dated 23.09.2022 passed by the learned Trial Court may be quashed and set aside and the application filed by the petitioner under Section 11 read with Order 7, Rule 11 and read with Section 151 CPC seeking rejection of the plaint may be allowed. 4. Heard learned counsel for the petitioner and perused the impugned order dated 23.9.2022, previous judgment and decree dated 18.11.2005 passed in Civil Case No. 72/2000 as well as the judgments relied upon by the learned counsel. 5. On a perusal of material available on record, it is apparent that the subject matter of both the suits is a residential plot situated at Jui Talai, Galiakot, District Dungarpur. In the previous suit being Civil Original Suit No.72/2000 Punja S/o Kuber, Hunka S/o Kuber, Kamla W/o Kachara, Kuku W/o Kachara, Gamiri W/o Punja and Smt. Rami W/o Huka were impleaded as defendants whereas in subsequent suit being Civil Original Case No. 47/2022, Kachara was impleaded as defendant. Thus, in the previous suit, said Kachara was not party, whereas his two wives namely Kamla and Kuku were impleaded as party-defendant. 6. However, while deciding an application under Order 7 Rule 11 of the CPC, a party cannot raise a plea that the suit is barred by res-judicata. It is a settled position of law that while deciding an application under Order 7 Rule 11 of the CPC, only the averments contained in the plaint are to be considered. The defense of the defendant is irrelevant at the stage of deciding such an application. 7. In Kamala & others v. KT Eshwara Sa reported in (2008) 12 SCC 661 wherein the Hon'ble Supreme Court dealt with the question whether res judicata can be the basis or ground for rejection of the plaint. The paras nos.21 and 22 reads thus: "21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. The paras nos.21 and 22 reads thus: "21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another. 22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision." (emphasis supplied) 8. Similarly, in Soumitra Kumar Sen v. Shyamal Kumar Sen reported in 4 (2018) 5 SCC 644 an application was moved under Order 7 Rule 11 of the CPC claiming rejection of the plaint on the ground that the suit was barred by res judicata. The Trial Judge dismissed the application and the judgment of the Trial Court was affirmed in revision by the High Court. In para no.9 the Hon'ble Supreme Court held as under: "9. In the first instance, it can be seen that insofar as relief of permanent and mandatory injunction is concerned that is based on a different cause of action. At the same time that kind of relief can be considered by the trial court only if the plaintiff is able to establish his locus standi to bring such a suit. In the first instance, it can be seen that insofar as relief of permanent and mandatory injunction is concerned that is based on a different cause of action. At the same time that kind of relief can be considered by the trial court only if the plaintiff is able to establish his locus standi to bring such a suit. If the averments made by the appellant in their written statement are correct, such a suit may not be maintainable inasmuch as, as per the appellant it has already been decided in the previous two suits that Respondent 1-plaintiff retired from the partnership firm much earlier, after taking his share and it is the appellant (or appellant and Respondent 2) who are entitled to manage the affairs of M/s Sen Industries. However, at this stage, as rightly pointed out by the High Court, the defense in the written statement cannot be gone into. One has to only look into the plaint for the purpose of deciding application under Order 7 Rule 11 CPC. It is possible that in a cleverly drafted plaint, the plaintiff has not given the details about Suit No. 268 of 2008 which has been decided against him. He has totally omitted to mention about Suit No. 103 of 1995, the judgment wherein has attained finality. In that sense, the plaintiff-Respondent 1 may be guilty of suppression and concealment, if the averments made by the appellant are ultimately found to be correct. However, as per the established principles of law, such a defense projected in the written statement cannot be looked into while deciding application under Order 7 Rule 11 CPC."(emphasis supplied) 9. In a recent judgment delivered in the case of Srihari Hanumandas Totala Vs. However, as per the established principles of law, such a defense projected in the written statement cannot be looked into while deciding application under Order 7 Rule 11 CPC."(emphasis supplied) 9. In a recent judgment delivered in the case of Srihari Hanumandas Totala Vs. Hemant Vithal Kamat & Ors reported in (2021) 9 SCC 99 , the Hon'ble Supreme Court while formulating guiding principles for deciding an application under Order 7 Rule 11(d) of the CPC has held that: "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: (i) *** **** **** ***** (ii) *** **** **** ***** (iii) *** **** **** ***** (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." 10. Therefore, in the facts and circumstances of the case, the bar of res-judicata is not applicable at the stage of deciding the application under Order 7 Rule 11 of the CPC. As far as the judgments relied upon by the learned counsel for the petitioner are concerned, they are of no help to the petitioner as the the same are distinguishable. 11. In view of the discussion made above, the learned trial court has not committed any illegality or material irregularity rejecting the application under Order 7 Rule 11 of the CPC. 12. The instant revision petition so also, the stay application stand dismissed. 13. No order as to costs.