Plea of res judicata cannot be decided under Order VII Rule 11 CPC, as it requires scrutiny of prior suits' pleadings and judgments beyond plaint averments alone.

JUDGMENT :

ABASAHEB D. SHINDE, J.

1. Rule. Rule is made returnable forthwith. With the consent of the parties, the petition is taken up for final hearing at the stage of admission.

2. The petitioner by this Writ Petition filed under Article 227 of the Constitution of India takes exception to the order dated 21.03.2024 passed by the Civil Judge Junior Division and Judicial Magistrate First Class, Georai, District Beed (for short ‘learned trial court’) below Exhibit-1 in Regular Civil Suit No.282 of 2017 by which the suit filed by the petitioner has been dismissed by the learned trial court holding that the same is barred by principle of res judicata under Section 11 of the Code of Civil Procedure, 1908 (for short ‘CPC’), pursuant to an application filed by the respondents under Rule 11 of Order VII of CPC.

3. Learned counsel for the petitioner submits that the petitioner who is original plaintiff has instituted Regular Civil Suit No.282 of 2017 on 25.09.2017 for partition and separate possession against the present respondents. He would further submit that the respondents who are original defendants have filed their written statement resisting the suit inter alia contending that the suit filed by the petitioner is barred by principle of res judicata on the ground of petitioner having filed earlier suits touching the subject matter of present suit. The learned trial court on 22.01.2020 on the basis of pleadings has framed issues below Exh.26 including the issue of res judicata. He would submit that it is thereafter that the respondents filed an application below Exh.30 under Rule 11 of Order VII of CPC contending that the plaint filed by the petitioner deserves to be rejected since the same is barred by principle of res judicata in view of filing of at least five suits earlier bearing R.C.S No.179 of 1998, R.C.S. No. 121 of 2004, R.C.S. No. 273 of 2005, R.C.S. No. 223 of 2010 and R.C.S. No. 221 of 2008 between the same parties.

4. Learned counsel for the petitioner further submits that the petitioner resisted the said application filed by the respondents. The learned Trial Court however, by the impugned order allowed the said application and dismissed the suit filed by the petitioner on the ground that the same is barred by principle of res judicata under Section 11 of CPC by virtue of filing earlier suits.

5. He would further submit that the reasoning adopted by the learned trial court is perverse and contrary to the scope of Rule 11 of Order VII of CPC. He would submit that the suit could not have been dismissed at least on the ground of principle of res judicata. In order to ascertain whether the suit is barred by principle of res judicata, the pleadings as well as the documents produced on record need to be considered during the trial and not while deciding an application under Rule 11 of Order VII of CPC. To buttress his submission, he has relied on the observations of the Hon’ble Apex Court in the case of Keshav Sood vs. Kirti Pradeep Sood and Ors. in Civil Appeal No. 5841 of 2023 (Arising out of SLP (C) No.35740 of 2017) decided on 12.09.2023.

6. Per contra, learned counsel appearing for the respondents/ original defendants would submit that the learned Trial Court has rightly passed the impugned order pursuant to the application filed by the respondents and dismissing the suit filed by petitioner on the ground that the same is barred by principle of res judicata. He would further submit that while passing the impugned order, the learned Trial Court has rightly considered the aspect of filing of earlier suits bet