Mintu Karar and another. vs Laxmi Kanta Senapati

Soumen Sen, J. - The petitioner was a plaintiff in Title Suit No. 94 of 2007. The plaintiff filed a suit against the opposite parties for eviction of licensee. The plaintiffs treated the defendant as licensee and the plaintiff in the said suit contended that by reason of revocation of licence, the opposite parties have no right to hold on to the property. The said suit was decreed on July 27, 2012 and an appeal preferred by the opposite parties was also dismissed and the appellate Court by a judgment and order dated November 29, 2013 affirmed the order passed by the Trial Court on July 27, 2012. The said decree has attained finality.

Subsequently, the opposite parties filed a suit for permanent injunction. The said suit was registered as TS 4079 of 2014. At the time of institution of the suit the earlier suit was decreed. In the written-statement the defendant has taken a plea of res judicata. The same plea was reiterated in the additional written-statement filed by the petitioner.

During the pendency of the appeal, the petitioner filed an application under Order 7, Rule 11 (d) of the Code of Civil Procedure. In the suit filed by the opposite party for permanent injunction, the opposite party alleged that he is the bona fide occupier in respect of the schedule property, which belongs to the proforma defendant i.e. elder sister of the plaintiff. The plaintiff was permitted to reside in the said property. The proforma defendant offered the opposite party to purchase the suit property and a �Bainanama� was prepared in pursuance whereof the opposite party paid a sum of Rs.2,00,000/- (Rs. Two lacs only). The opposite party further contended that the defendant nos. 1 and 2 namely the plaintiffs in the other suit claiming to be the owners of the suit property and tried to grab the property in question by ousting the plaintiff.

During the course of trial, the petitioner filed an application under Order 7, Rule 11 (d) of the Code contending that the said suit is barred by law as according to the plaintiff the judgment and order passed in the earlier Title Suit which is binding upon the same parties, the issues raised in subsequent suit are gone into, adjudicated upon and conclusively decided.

The plea of res judicata is a mixed question of law and fact. The Court would be required to consider the pleadings of the respective suits as well as the issues raised and decided in the earlier suit. The same cannot be summarily decided. This is off course not to say that if it is manifest from the pleadings and the judgments of the earlier suit that the later suit is not maintainable and is barred by principles of res judicata, the Court would not still then exercise its jurisdiction to nip the suit in the bud as continuation of such suit would be vexatious and an abuse of process of law.

However, having regard to the pleadings, it cannot be said that the Court without considering the evidence-on-record, would be able to decide the issue of res judicata simply on the basis of what has been stated in the application under Order 7, Rule 11 (d) of the Code.

The learned Counsel appearing on behalf of the petitioner has relied upon two decision of this Court in the case of Hari Mohan Malik v. Madan Mohan Malik and Ors. reported in 2014 (4) WBLR 874 (Cal) and Bijoy Nagar Tea Company Ltd. v. Narsing Dasgupta and Ors. reported in 2008 (1) CHN 98 and submits that a learned single Judge of this Court in interpreting Order 7, Rule 11 (d) of the Code, held that the suit can be dismissed on the ground of res judicata.There cannot be any dispute that a plea of res judicata may non-suit a party. However, the question remains at what stage? As mentioned earlier, if it is manifest that the continuation of the later suit would be an abuse of process and no further examination is called for save and except the pleadings and the judgment of an earlier suit, the Court may at any stage of the proceeding, dismiss the suit after taking into consideration such facts.

This aspect of the matter was considered in Bijoy Nagar Tea Company Ltd. (supra) in paragraph 38 to 40 which reads:-

While considering an application for rejection of plaint under Order 7, Rule 11 of the Code of Civil Procedure, the Court is required to confine itself within the plaint. Not a casual approach or a formal reading, but a meaningful reading of he plaint is the demand of the statute.

The Court cannot be necessarily burdened with luxury litigation. It has statutory obligation to search, screen and then, eliminate vexatious or mala fide, litigation. It cannot be afford to remain a passive onlooker while coming across a case which is filed in order to harass the opponent and in the process to derive undue advantage � without having any �cause of action� in the true sense.

Borrowing expression from Lord Denning, it can be said that the Court must act as �bold spirit� and not as �timorous soul�.

Mr. Hiranmoy Bhattacharya, the learned Advocate appearing on behalf of the opposite party, has relied upon the judgment of the Hon�ble Supreme Court in the case of Food Corporation of India v. S.N. Nagarkar reported in (2002) 2 SCC 475 and in the case of Syed Mohd. Salie Labbai (Dead) by L. Rs and Ors. v. Mohd. Hanifa (Dead) by L. Rs and Ors. reported in AIR 1976 SC 1569 and submits that the essential conditions that are required to be proved in order to succeed in a plea of res judicata in the instant case, cannot be decided simply on the basis of what is stated in the petition without holding any examination and/or comparing the pleadings of the two suits as well as the evidence tendered.

Although the learned Advocate representing the parties could not submit definitely whether the issues has been framed with regard to res judicata but it appears from the pleadings that the petitioner has raised a plea of res judicata and the said plea is required to be decided irrespective of the fact whether the application filed by the plaintiff under Order 7, Rule 11 (d) of the Code was rejected.

The plea of res judicata is mixed question of fact and law as held by the Hon�ble Supreme Court. In order to succeed in a plea of res judicata, copies of pleadings and issues framed in the earlier suit is required to be tendered in evidence. Although the Court has declined to exercise its jurisdiction to dismiss the suit, under Order 7, Rule 11 (d) of the Code, however, cannot be ignored that the same set of parties are litigating in the earlier proceeding and the petitioner has succeed in his suit and a decree for eviction was passed in favour of the petitioner.

However, it is to be seen whether the plea of the defendant that they entered into a �Bainapatra� with the proforma defendant, was raised in the said suit and how much relevancy was attached to such fact in the earlier suit, if at all such plea was raised. The facts and findings recorded in the previous judgment might be relevant in deciding the present suit but the said issues required to be gone into at the trial it cannot be said that it is such a open and shut case which does not call for any further evidence.

The dismissal of the aforesaid application may not preclude the petitioner from raising the same plea provided the petitioner is able to establish on the basis of the existing materials, the relevancy of the earlier judgment and of any evidence of undoubted veracity. However, to succeed in a plea of res judicata without having the rigmarole of a protracted litigation. But the Trial Court is not precluded from entertaining a subsequent application on a plea of res judicata if it is apparent from the record that the decisions on issues covered in the earlier suit would completely non-suit the defendant/opposite party in the latest suit and the Court should not indulge a luxury litigation.

The revisional application accordingly disposed of. No order as to costs.