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2025 DIGILAW 835 (SC)

G. Sankarabushanam v. E. Dhavamani

2025-03-25

B.V.NAGARATHNA, SATISH CHANDRA SHARMA

body2025
ORDER : 1. Leave granted. 2. Briefly stated, the facts of the case are that appellants herein filed the Civil Suit No. 326 of 2021 before the High Court of Madras seeking the following prayers: "a) to declare that the 1st Plaintiffs is the absolute owner of Suit B Schedule Property; b) to declare the Plaintiffs are the absolute owners of Suit C Schedule Property and direct the Defendants 7,9,10,11 & 16 to hand over and deliver vacant possession of the Suit C Schedule Property to the plaintiffs; c) to declare the Decree passed in O.S.No.4747 of 1977 on 12.09.2007 by the VI Assistant City Civil Court, Chennai, does not pertain and bind to the Properties comprised in T.S.No.71/1, morefully described in the Schedule A comprised of B & C hereunder; d) for permanent injunction restraining the defendant/s, their men, agents, servants representatives or any one claiming through him/her/them or in trust for him/her/them, from in any manner distributing plaintiff's peaceful possession and enjoyment over the Suit Schedule B & C Property; e) for the costs of the suit; and f) to pass such further or other orders as this Hon'ble Court may deem fit and proper, in the circumstances of the case and thus render justice.' 3. The respondents herein filed an Application No. 4115 of 2021 in C.S. No.326 of 2021 seeking rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 ('CPC') on the ground that the issues involved are already decided in earlier rounds of litigation and the suit is therefore barred by res judicata. By order dated 23.03.2022, the learned Single Judge dismissed the said application filed by the respondents on the ground that under Order VII Rule 11 of the CPC, the Court has to only look into the averments in the plaint and not the defence taken by the defendants. The High Court observed that since the plaint discloses a cause of action, it dismissed the application under Order VII Rule 11 of the CPC. 4. Being aggrieved, the respondents preferred an appeal before the Division Bench of the High Court by filing OSA No.230 of 2022. By impugned order dated 28.09.2022, the Division Bench of the High Court allowed the appeal preferred by the respondents and set aside the order passed by the learned Single Judge. 4. Being aggrieved, the respondents preferred an appeal before the Division Bench of the High Court by filing OSA No.230 of 2022. By impugned order dated 28.09.2022, the Division Bench of the High Court allowed the appeal preferred by the respondents and set aside the order passed by the learned Single Judge. Thereby, the application under Order VII Rule 11 of the CPC was allowed, on the ground that the property claimed by the appellants was already decided in earlier rounds of litigation and the decree obtained in the earlier round of litigation had attained finality. Hence, the appellants have preferred the instant appeal. 5. We have heard the learned counsel for the appellants and the learned counsel for the respondents and perused the material on record. 6. Learned counsel for the appellant(s) submitted that the Division Bench of the High Court was not justified in setting aside the order dated 23.03.2022 passed by learned Single Judge in Application No.4115/2021 in CS No.326/2021. 7. She submitted that the application filed by the defendant(s) for seeking rejection of the plaint was rightly dismissed by the learned Single Judge. However, in the original side appeal, the Division Bench of the High Court has set aside the said order and consequently, the plaint filed by the appellant(s) herein has been rejected on that ground that it is barred by law under Order VII Rule 11(d) of the CPC for the reason that the plaint is hit by the principle of res judicata. 8. Learned counsel for the appellant contended that if the principle of res judicata was to apply to the plaint and consequently, the suit was not maintainable, then it was necessary that evidence be let in on that aspect of the matter. In support of her submission, she placed reliance on the judgment of this Court in the case of Srihari Hanumandas Totala vs. Hemant Vithal Kamat, (2021) 9 SCC 99 and order dated 12.09.2023 passed in the case of Keshav Sood vs. Kirti Pradeep Sood & Ors., Civil Appeal No.5841 of 2023. 9. In support of her submission, she placed reliance on the judgment of this Court in the case of Srihari Hanumandas Totala vs. Hemant Vithal Kamat, (2021) 9 SCC 99 and order dated 12.09.2023 passed in the case of Keshav Sood vs. Kirti Pradeep Sood & Ors., Civil Appeal No.5841 of 2023. 9. Per contra, learned counsel appearing for the respondent(s) submitted that the Division Bench of the High Court was right to infer the fact that the latest suit filed by the appellant(s) herein was not maintainable and barred by law inasmuch as the earlier proceedings between the parties had concluded the matter and there was no further dispute which could have been raised by the appellant herein. She therefore, submitted that Order VII Rule 11(d) of the CPC squarely applies to the facts of the present case and hence there is no merit in this appeal. 10. By way of reply, learned counsel for the appellant(s) submitted that the earlier suit and proceedings were in respect of Survey Nos.71/2 and 71/3 whereas the present suit is in respect of Survey Nos.71/1, 71/16 and 71/17. Although, the parties may be the same, the subject matter of the present suit is distinct from the subject matter of the previous suits. Hence, the appeal may be allowed. 11. We have considered the arguments advanced at the Bar in light of material on record and the impugned order passed by the Division Bench of the High Court as well as the learned Single Judge, who has passed the order rejecting the application in the suit. 12. We find that having regard to the fact that the defendants were seeking rejection of the plaint on the basis of the principle of res judicata and had invoked Order VII Rule 11(d) of the CPC, it was just and proper that the said objection raised by the defendants-respondents herein ought to have been considered at least as a preliminary issue by letting in evidence on the said issue. 13. In the circumstances, we set aside the order of the Division Bench of the High Court and restore the order of the learned Single Judge in the suit. Consequently, C.S. No.326 of 2021 stands restored on the file of the High Court and Application No. 4115 of 2021 is dismissed. 14. 13. In the circumstances, we set aside the order of the Division Bench of the High Court and restore the order of the learned Single Judge in the suit. Consequently, C.S. No.326 of 2021 stands restored on the file of the High Court and Application No. 4115 of 2021 is dismissed. 14. The learned Single Judge, who is now seized of the suit is at liberty to raise a preliminary issue on the maintainability of the suit in the context of Order XIV Rule 2 of the CPC and after recording evidence on the said preliminary issue and giving a finding thereon, dispose of the suit in accordance with law. 15. Since, all parties to the suit are represented by their respective counsel, they are directed to appear before the learned Single Judge in the suit on 28.04.2025 without expecting any separate notices from the said Court. This appeal is disposed of in the aforesaid terms. No costs. Pending application(s), if any, shall stand disposed of.