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2025 DIGILAW 733 (JHR)

Rajkumar Gupta @ Raj Sahu v. Hira Lal Sahu, S/o Mahadev Lal Halwai

2025-03-04

SANJAY KUMAR DWIVEDI

body2025
JUDGMENT : SANJAY KUMAR DWIVEDI , J. Heard learned counsel appearing for the petitioners and learned counsel appearing for the opposite parties. 2. This petition has been filed under Article 227 of the Constitution of India for quashing of the order dated 16.02.2023 passed by learned Civil Judge (Senior Division)-I, Khunti in O.S. No.10 of 2020 whereby the learned Court has rejected the application under Order 7 Rule 11 (a) and (d) read with Section 151 of the CPC filed by the defendants/petitioners. 3. Mr. Sudhir Kumar Sharma, learned counsel appearing for the defendants/petitioners submits that one Mahadeo Halwai father of Plaintiff/Respondent No.1 instituted Partition Suit against Devendra Sahu (now deceased) and three others being Partition Suit No.53/13 of 1961-62 in the Court of Sub-Judge, Ranchi for partition of land of Khata No.48 and 84 of village-Khunti Tola, Khata No.103, 231 and 23 of village – Khunti, District Ranchi for the relief that a preliminary decree for partition be passed and a separate takhta of 8/- of the plaintiff by appointing a pleader commissioner be carved out from the proper and after making the decree final the plaintiff be put separate possession of the same. He submits that the suit was decided by judgment dated 27.09.1962 holding that the plaintiff is entitled for partition over Khata No.48 of Khunti Tola and 103 and 231 of village – Khunti. He further submits that the Pleader Commissioner was appointed who submitted his report on20.05.2008 and vide order dated 29.01.2008 final decree was prepared by learned Sub-Judge – I, Khunti in Partition Suit No.53/13 of 1961-62. He submits that the father of the defendant No.24/respondent No.2 herein instituted Execution Case No.5/2009 for execution of final decree dated 29.01.2010 passed by Sub Judge-I, Khunti. He further submits that in the year 2019 at the execution stage, the petition was filed for correcting the decree to the effect that Khata No.23 was made part of the final decree in light of Pleader Commissioner’s report. He further submits that in the year 2019 at the execution stage, the petition was filed for correcting the decree to the effect that Khata No.23 was made part of the final decree in light of Pleader Commissioner’s report. He submits that in the preliminary decree Khata No.23 was not the subject matter, there was no decree to that and in the Pleader Commissioner has wrongly entered Khata No.23 in the report and in view of that the petitioner was filed for correction and on the basis of the report the final decree was prepared and in view of that the petition was filed in the year 2019 to exclude Khata No.23 from the final decree which has been allowed by the order dated 19 th February, 2020, thereafter, the present suit being Original Suit No.10 of 2020 was instituted on 18.09.2020. Mr. Sharma, learned counsel appearing for the petitioners further submits that on receiving the summon, the petitioners/defendants appeared and filed the written statement as well as the petition under Order 7 Rule 11(a) and (d) stating that the suit is barred by res-judicata and in view of that the plaint may kindly be rejected. He submits that the learned Court has erroneously decided the said and rejected the said petition and in view of that the said order may kindly be set aside. He submits that in view of the admitted facts, the learned Court has wrongly passed the said order and according to him the said order is not in accordance with law and the same may kindly be set aside. 4. Mr. Vishal Kumar Rai, learned counsel appearing for the opposite parties opposes the prayer and submits that the learned Court has rightly held at this stage only the pleadings can be looked into and appreciating the documents, the said petition under Order 7 Rule 11 (a) and (d) is not required to be decided. He further submits that there are series of events taken place in between 1962 till execution of the present suit that can be a subject matter of trial only. He relied in the judgment of Hon’ble Supreme Court in the case of Keshav Sood versus Kirti Pradeep Sood and Ors. reported in (2023) LiveLaw (SC) 799, wherein at paragraph No.5 and 6 it has been held as under :- 5. He relied in the judgment of Hon’ble Supreme Court in the case of Keshav Sood versus Kirti Pradeep Sood and Ors. reported in (2023) LiveLaw (SC) 799, wherein at paragraph No.5 and 6 it has been held as under :- 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. 5. Relying on the above judgment, he submits that there is no illegality in the impugned order. 6. Based on the judgment and partition suit No.53/13-1961-62 the ground has been taken by the defendant/plaintiff by way of filing a petition under Order 7 Rule 11 (a) and (d) that the suit itself was barred by res judicata and the contention has been made that the suit property was already subject matter in the earlier suit. In the present suit, the opposite parties has not concealed the fact that the suit with regard to the Khata No.23 was earlier also instituted. It has been pointed out that in the meantime certain further development has taken place and in the year 2019 the correction in the final decree was sought with the effect that Khata No.23 be excluded from the final decree and pursuant to that it has been excluded. 7. Order VII Rule 11 of the CPC reads as follows :- 11. 7. Order VII Rule 11 of the CPC reads as follows :- 11. Rejection of plaint : — The plaint shall be rejected in the following cases:— (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9: [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.] 8. On perusal of the above, it transpires that Order VII Rule 11 (d) of 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 and at that stage the Court is only required to give due regard to the statements in the plaint whether the suit is barred by any law must be decided on the basis of the plaint itself and for that other material is not required to be appreciated at that stage. 9. Section 11 of the CPC defines res judicata which is as under:- 11. 9. Section 11 of the CPC defines res judicata which is as under:- 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. Explanation I.—The expression “former suit” shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto. Explanation II.—For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV.—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.—Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused. Explanation VI.—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. [Explanation VII. — The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII. Explanation VIII. — An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.] 10. The above section envisages the rule of res judicata to the effect that a Court shall not try any suit or issue on which the matter that is directly or indirectly heard or decided in a former suit and in view of that for the purpose of executing on the issue of res judicata it is necessary that the same issue has been decided in the former suit. 11. Hon’ble Supreme Court has decided the issue of res judicata in the case of V. Rajeshwari v. T.C. Saravanabava reported in (2004) 1 SCC 551 and held that it is necessary to refer to copies of the pleadings, issues and judgments of the former suit while executing on plea of res judicata at paragraph No.11 and 13 which is as under :- “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 Syed 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 operates as res judicata. 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 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 : ILR 16 Cal 173] 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) 12. Whether res judicata can be the basis or wrong allegation of regulation of the plaint was the subject matter in the case of Kamala v. K.T. Eshwara Sa reported in (2008) 12 SCC 661 wherein at paragraph No.21 and 22, it has been held as under :- “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. 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) 13. In the case of Kamala v. K.T. Eshwara Sa reported in (2008) 12 SCC 661 wherein at paragraph No.23, 24 and 25 it has been further held as under :- “23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a (2008) 12 SCC 661 preliminary issue or at the final hearing, but, the said question cannot be determined at that stage. 24. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law. 25. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. 25. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact or law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for rejection of plaint should be entertained.” (emphasis supplied) 14. The above view was further followed by Hon’ble Supreme Court in the case of Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust reported in (2012) 8 SCC 706 wherein at paragraph No.10 and 11, it has been held as under :- 10. Since the appellant herein, as the first defendant before the trial Judge, filed application under Order 7 Rule 11 of the Code for rejection of the plaint on the ground that it does not show any cause of action against him, at the foremost, it is useful to refer the relevant provision: Order 7 Rule 11 CPC “ 11. Since the appellant herein, as the first defendant before the trial Judge, filed application under Order 7 Rule 11 of the Code for rejection of the plaint on the ground that it does not show any cause of action against him, at the foremost, it is useful to refer the relevant provision: Order 7 Rule 11 CPC “ 11. Rejection of plaint .—The plaint shall be rejected in the following cases— (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of Rule 9: Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp paper shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp paper, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.” It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the court, insufficiently stamped and not rectified within the time fixed by the court, barred by any law, failed to enclose the required copies and the plaintiff fails to comply with the provisions of Rule 9, the court has no other option except to reject the same. A reading of the above provision also makes it clear that power under Order 7 Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial. 11. This position was explained by this Court in Saleem Bhai v. State of Maharashtra [ (2003) 1 SCC 557 ] , in which, while considering Order 7 Rule 11 of the Code, it was held as under: (SCC p. 560, para 9) “9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit—before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.” It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property [ (1998) 7 SCC 184 ] and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [(2006) 3 SCC100] . 15. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property [ (1998) 7 SCC 184 ] and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [(2006) 3 SCC100] . 15. In the case of Soumitra Kumar Sen versus Shyamal Kumar Sen reported in 2018 5 SCC 644 an application was moved under Order VII Rule 11 of CPC claiming rejection of the plaint on the ground that the suit was barred by res judicata wherein at paragraph No.9 it has been 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. 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 defence 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 defence projected in the written statement cannot be looked into while deciding application under Order 7 Rule 11 CPC. 16. 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 defence projected in the written statement cannot be looked into while deciding application under Order 7 Rule 11 CPC. 16. In view of the above judgments of Hon’ble the Supreme Court, it is crystal clear that to reject a prayer on the ground that it is barred by any law under Rule 11(d) of Order VII only the averments in the plaint is required to be referred and whether the suit is barred by res judicata, it was required to be looked into as to whether previous suit is decided the issue in the subsequent suit were directly or substantially in issue in the former suit. The former suit was between the same parties or parties through whom they claim litigating under the same title and these issues were adjudicated and finally decided by a court competent to try subsequent suit and for deciding all these issues on the point of res judicata consideration of pleadings, issues and decision in the previous suit are necessary and that will be beyond the scope of Order VII Rule 11(d) of the CPC as for deciding the said petition only statement in the plaint is required to be looked into. 17. On reading the plaint, it is crystal clear that the plaintiff/opposite party has not attempted to conceal the fact that the suit regarding the property was earlier instituted and in the year 2019 the Khata No.23 of a suit of 1961-62 was deleted from the final decree and in view of that without deciding all these issues on the petition under Order VII Rule 11(a) and (d) can’t be rejected on the principles of res judicata. 18. In view of the above, the Court finds that there is no illegality in the order of the learned trial court and accordingly this C.M.P. is dismissed, however, this Court clarify that this Court has not expressed its opinion on whether the subsequent suit is barred by principle of res judicata or not. This Court grant liberty to the petitioners/defendants to raise issue of maintainability of the suit before the learned Court. 19. For the above reasons, this petition is dismissed.