Gulab Ram vs Vakta Ram And Others

Rekha Borana, J

The present revision petition has been preferred against the order dated 16.02.2022 passed by the Civil Judge, Jaitaran in Civil Suit No.127/2021 whereby the application under Order VII Rule 11 read with Section 11, CPC as preferred by defendant No.1 has been rejected.

The learned Court below, while rejecting the application, observed that prima facie it did not reflect that the suit was barred by res judicata and further that, if a pleading on the basis of facts has been made, the same cannot be decided at the initial stage without adjudication on merits.

In the opinion of this Court, the finding of the Court below does not deserve any interference in view of the latest judgment in the case of Keshav Sood vs. Kirti Pradeep Sood & Ors.; Civil Appeal No.5841 of 2023 decided on 12.09.2023. The Hon’ble Apex Court in the said matter held as under:

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.

Therefore, we agree with the final conclusion of the Division Bench of the High Court that the suit needs to be decided on merits with a modification that the issue of res judicata will remain open and the learned Single Judge will frame an issue on res judicata along with the other issues.

In view of the ratio as laid down by the Hon’ble Apex Court, the present revision petition is disposed of. The issue of res judicata is left open to be raised and decided on merits.

Stay petition and all pending applications, if any, also stand disposed of.