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SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, M.R. SHAH, JJ.
SRIHARI HANUMANDAS TOTALA - APPELLANT
VERSUS
HEMANT VITHAL KAMAT & ORS - RESPONDENTS
CIVIL APPEAL NO 4665 2021(ARISING OUT OF SLP (C) NO.3899 OF 2021)
DECIDED ON : 09-08-2021
(A) Civil Procedure Code, 1908 – Order 7 Rule 11 – Rejection of plaint – Suit challenging sale-deed – Plaint shall be rejected where suit appears from statement in plaint to be barred by any law – In order to decide whether suit is barred by any law, it is statement in plaint which will have to be construed – Court while deciding such an application must have due regard only to statements in plaint – Defence made by defendant in suit must not be considered while deciding merits of application – Whether suit is barred by any law must be determined from statements in plaint and it is not open to decide the issue on the basis of any other material including written statement in the case. (Paras 16 and 20)
(B) Civil Procedure Code, 1908 – Section 11 – Res Judicata – For the purpose of adjudicating on issue of res judicata it is necessary that same issue (that is raised in suit) has been adjudicated in former suit – Rule of res judicata does not strike at root of jurisdiction of court trying subsequent suit – It is a rule of estoppel by judgment based on public policy that there should be a finality to litigation and no one should be vexed twice for same cause – Since an adjudication of plea of res judicata requires consideration of pleadings, issues and decision in previous suit, such a plea will be beyond scope of Order 7 Rule 11 (d), where only statements in plaint will have to be perused. (Paras 17 and 20)
Facts of the case:
Present appeal arises from a judgment dated 18 January 2021 of a Single Judge at the Dharwad Bench of the High Court of Karnataka. The revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure 1908 was invoked for challenging an order dated 1 July 2019 of the II Additional Senior Civil Judge and Chief Judicial Magistrate, Belgaum on an application under Order 7 Rule 11 of the CPC.
Findings of Court:
First respondent has not made an attempt to conceal the fact that a suit regarding the property was pending before the civil court at the time. It is also relevant to note that at the time of institution of the suit (OS No. 138/2008) by the first respondent, no decree had been passed by the civil court in OS No. 103/2007. Thus, issues raised in OS No. 103/2007, at the time, had not been adjudicated upon. Therefore, the plaint, on the face of it, does not disclose any fact that may lead us to the conclusion that it deserves to be rejected on the ground that it is barred by principles of res judicata.
Result : Appeal dismissed.
JUDGMENT :
DR. JUSTICE DHANANJAYA Y. CHANDRACHUD, J.
1. Leave granted.
2. This appeal arises from a judgment dated 18 January 2021 of a Single Judge at the Dharwad Bench of the High Court of Karnataka. The revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure 1908 (“CPC”) was invoked for challenging an order dated 1st July 2019 of the IInd Additional Senior Civil Judge and Chief Judicial Magistrate, Belgaum on an application1[IA No. VII in OS 138/2008.] under Order 7 Rule 11 of the CPC.
3. Ms. Leela Vithal Kamat was the title holder of the suit property. On her death on 16 May 1996, the property was mutated in the names of her legal heirs – the first respondent and his brother. The first respondent and his brother took a loan from the Karnataka State Finance Corporation (“KSFC”) and mortgaged the suit property as security for repayment of the loan. Since the loan was not repaid, KSFC auctioned the property. The third respondent, who is the predecessor-in-interest of the appellant, furnished the highest bid of Rs. 15,00,000. A sale deed of the suit property was executed in favour of the third respondent on 8 August 2006. Despite the execution of the sale deed, the first respondent and his brother failed to handover the possession of the suit property and as a consequence a suit for possession was filed by the third respondent on 13 March 2007. On 20 December 2007, the first respondent, who was impleaded as the second defendant to the suit filed his written statement raising inter alia the following defences:
(i) KSFC had no authority to put the suit property on sale;
(ii) The second defendant (first respondent herein) had not taken any loan from KSFC nor had any transaction with it. He had not executed any documents offering the suit property as security; and
(iii) The second defendant had no concern with the borrower.
Issues were framed in the suit, among them being the following:
“4. Whether defendant No.2 KSFC had no authority to put the suit property for sale?”
4. On 12 November 2008, the first respondent instituted a suit being OS No. 138/2008 challenging the sale deed dated 8 August 2006 executed by KSFC in favour of the third respondent primarily on the ground that KSFC had no authority to put the suit property for sale. He sought a partition of the suit property and possession of his share. The first respondent made the following averments in the plaint:
(i) The suit property was owned by the mother of the first respondent. After her death, the suit property was inherited by the first respondent and his brother and the first respondent has been in possession of this property from 1998 till the filing of the suit;
(ii) The brother of the first respondent mortgaged the suit property with KFSC without his consent and KFSC without investigating the title of the suit property and verifying the underlying title documents, accepted the suit property as security;
(iii) In 2004, the daughters of the first respondent’s brother had filed a suit for partition and separate possession of the said suit property, where the first respondent was a party. There was no mention made of a loan being sanctioned by KFSC against the suit property;
(iv) The first respondent did not consent to the mortgage of the suit property to KFSC and executed no documents for this purpose; and
(v) The first respondent received knowledge of the sale deed executed by KFSC in favour of the third respondent only when he appeared in the suit filed by the third respondent-that is OS No. 103/2007. There is a possibility that the first respondent could suffer a decree for possession in OS No. 103/2007. Thus, the first respondent filed this suit for partition and possession to challenge the validity of the sale deed and to claim his share in the suit property.
5. The following issues were framed by the Trial Court:
“1. Whether the description of suit property is correct
2. Whether plaintiff proves that he has purchased suit property and he
In order to decide whether suit is barred by any law, it is statement in plaint which will have to be construed. Defence made by defendant in suit must not be considered while deciding merits of appl....
The proviso of Order 7, Rule 11 evidently covers the cases falling within the ambit of clauses (b) and (c) and has no application to a rejection of a plaint under Order 7 Rule 11(d).
A litigant cannot benefit from concealing material facts; res-judicata applies when the same issue has been previously adjudicated, and suits barred by limitation are not maintainable.
The principle of res judicata bars re-litigation of matters already decided, confirming that the earlier judgment is binding and the current suit is not maintainable.
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