Aftab Alam vs Chamaar Rai

Amitendra Kishore Prasad, J

The present civil revision under Section 115 of CPC has been filed being aggrieved by the impugned order dated 20.12.2022 passed by the learned Civil Judge Class-I, Patan, District Durg (C.G.) in Civil Suit No. 21-A/2021, whereby the Court below has illegally rejected the petitioner’s application under Order VII Rule 11 of the CPC. The Court has erroneously held that the principle of res judicata  is  inapplicable  on  the  premise  that  the  question  of ownership of the suit land bearing Khasra No. 968 was not finally adjudicated in the earlier civil suit, Suit No. 137-A/2011, and therefore the subsequent civil suit is not barred.

Following prayed has been made by way of this revision petition:-

“It is, therefore, prayed that this Hon'ble Court may kindly be pleased to allow this revision and pleased to set aside the impugned order dated 20.12.2022 passed by the Court of Civil Judge Class-I, Patan, District Durg (C.G.) in Civil Suit no. 21- A/2021 and further be pleased to declare the civil suit as bar and not tenable in the present form, in the interest of justice.”

Brief facts of the case are that the plaintiff/respondent No.1 filed Civil Suit No. 21-A/2021 before the Civil Judge Class-I, Patan, District Durg (C.G.) seeking declaration of title, possession and permanent injunction in respect of land bearing Khasra Nos. 281/1 (0.23 ha.) and 968 (0.46 ha.), situated at Village Sipkona, asserting that his name is recorded in the revenue records and that he had purchased Khasra No. 968 through a registered sale deed dated 23.03.1988 from Shyamkishore Agrawal, after which mutation was carried out and he remained in peaceful possession until the petitioner/defendant allegedly encroached upon the land, as revealed during fresh demarcation proceedings; his application under Section 250 of the Chhattisgarh Land Revenue Code was rejected, giving rise to the cause of action for filing the suit. During the pendency of the suit, the petitioner/defendant moved an application under Order VII Rule 11 CPC seeking rejection of the plaint on the ground that the suit is barred by res judicata in view of the earlier decision in Civil Suit No. 137-A/2011; however, the plaintiff filed objections and the trial Court, vide order dated 20.12.2022, rejected the petitioner’s application holding that ownership of Khasra No. 968 was not decided earlier and therefore res judicata was not applicable, which order is impugned as being illegal, erroneous and contrary to law.

Mr. Sameer Rigri, learned counsel appearing on behalf of the applicant/defendant No. 1 submits that the impugned order rejecting the application under Order VII Rule 11 CPC is illegal and contrary to law. The Trial Court erred in holding that the ownership of Khasra No. 968 was not decided in the earlier Suit No. 137-A/2011, despite the fact that respondent No. 1/plaintiff had filed a counter-claim regarding the same land, which was adjudicated on merits and rejected by both the Trial Court and the Appellate Court vide orders dated 31.10.2012 and 30.11.2016. Therefore, the present suit is clearly barred by res judicata and constructive res judicata. It is further submitted that the Trial Court committed an error in failing to consider the entire factual background, in not framing an issue on res judicata, and in rejecting the application without properly examining the earlier judgments. Since the subject matter of both suits is identical and the earlier dispute has already been finally decided, the application under Order VII Rule 11 CPC ought to have been allowed. The plaintiff has also admitted the institution of the prior suit, and therefore the present proceedings deserve to be dismissed.

Learned State Counsel submits that vide order dated 28.03.2023, while issuing notice to the respondents, the proceedings before the Court below were stayed, and thereafter the matter has been listed from time to time.

None appears for respondents No. 1 and 2, though duly served.

I have heard learned counsel for the parties and perused the record.

From the perusal of the order, it appears that an issue of res judicata was raised by defendant No. 1 before the Trial Court on an application under Order VII Rule 11 CPC, with a prayer that since the matter had already been adjudicated in a previous suit, the present suit deserved to be dismissed. The Trial Court, while deciding the application under Order VII Rule 11 CPC, held that the dispute regarding title had not been adjudicated in the earlier Civil Suit No. 137-A/2011 vide judgment dated 31.10.2012, and therefore the principles of res judicata were not applicable. The procedure adopted by the Trial Court is wholly misconceived. At the nascent stage of deciding an application under Order VII Rule 11 CPC, the Court committed an error of law in holding that the suit is not barred by Section 11 CPC.

The plea of res judicata cannot be adjudicated at the stage of an Order VII Rule 11 application; it requires a full-fledged consideration after framing of issues. Only after framing issues and examining the records and judgments of the previous suit, the trial Court can determine the applicability of res judicata.

Since no such adjudication was undertaken, the Trial Court has erroneously concluded that the suit is not barred by the principles of res judicata, which, in the opinion of this Court, is per se illegal. However, it is equally true that the issue of res judicata cannot be decided on an application under Order VII Rule 11 CPC. It requires complete adjudication at the stage of framing of issues, along with a conscious determination based on the documents produced by the parties and the evidence led on this aspect.

At the outset, it is pertinent to recapitulate the well-settled legal position laid down by the Hon’ble Supreme Court in a series of decisions. In the matter of Pandurangan vs. T. Jayarama Chettiar & Anr., reported in 2025 SCC OnLine SC 1425 has held that a plea of 'res judicata' cannot be decided in an application filed under Order VII Rule 11 of the Code of Civil Procedure for rejection of a plaint. The Court held that res judicata is an issue to be decided in trial and cannot be summarily decided in an application to reject the plaint.

Hon’ble Supreme Court in the matter of Keshav Sood vs. Kirti Pradeep Sood, reported in 2023 SCC OnLine SC 2459 has took a strong view against the plea of res judicata being raised in applications seeking rejection of plaint and held as follows :

“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.

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.”

In the matter of Srihari Hanumandas Totala vs. Hemant Vithal Kamat & Ors., reported in (2021) 9 SCC 99, Hon’bleSupreme Court has held that the adjudication of the plea of res judicata is beyond the scope of Order VII, Rule 11 of C.P.C., the Hon’ble Supreme Court has held as under :

“25. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarised as follows:

25.1. To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to.

25.2. The defence made by the defendant in the suit must not be considered while deciding the merits of the application.

25.3. To determine whether a suit is barred by res judicata, it is necessary that (i) the “previous suit” is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and

(iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit.

25.4. 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.”

Time and again, the Hon’ble Supreme Court has held that the issue of res judicata cannot be decided at the nascent stage on an application filed under Order VII Rule 11 CPC. A complete adjudication on the point of res judicata is required after framing of issues, considering the documents of the previous suit, and verifying whether the issues in the earlier and the subsequent suits are the same. Unless this procedure is followed, neither can it be held that the suit is barred by res judicata nor can it be conclusively determined that the principles of res judicata apply.

The Trial Court, therefore, committed an error of law in holding that the suit is not barred by the principles of res judicata. To this limited extent, the order of the trial Court whereby it held that the suit is not hit by res judicata is hereby set aside. However, the revision seeking dismissal of the suit on the basis of res judicata is also rejected.

The parties are directed to appear before the concerned trial Court. The trial Court is further directed to frame an issue on the question of res judicata and to decide the same after recording the evidence of the parties and considering the documents of the earlier suit. Accordingly, the revision, being devoid of merit, is hereby dismissed.