The principle of res judicata cannot serve as a basis for rejecting a plaint under Order VII Rule 11 of the CPC; it must be framed as a preliminary issue in trial.

JUDGMENT

Prathiba M. Singh, J. (Oral)--This hearing has been done in physical Court. Hybrid mode is permitted in cases where permission is being sought from the Court.

CM APPL.44257/2021 (for exemption)

2. Allowed, subject to all just exceptions. Application is disposed of.

C.R.P.92/2021 & CM APPL.44256/2021 (for stay)

3. The present petition challenges the impugned order dated 30th June, 2021 passed by the Ld. ADJ, Karkardooma Courts, Delhi (hereinafter "Trial Court") in CS No.2581/16 titled Ajay Pal Singh & Ors. v. Rajinder Singh & Ors. Vide this common order, the Trial Court allowed the application of the Plaintiffs/Respondent Nos.1-6 (hereinafter "Plaintiffs") under Order VI Rule 17 CIVIL PROCEDURE CODE , 1908 (hereinafter "CPC") and rejected the application under Order VII Rule 11(d) CPC read with Section 11 CPC filed by the Defendants/Petitioner & Respondent Nos.7-54 (hereinafter "Defendant").

4. The present petition only relates to the application under Order VII Rule 11 read with Section 11 CPC. The question that has arisen in this case is as to whether the issue of a suit being barred by the principle of res judicata under Section 11 CPC can be a ground of rejection of the plaint under Order VII Rule 11 CPC. The case of the Defendant is that there was an earlier suit being CS No.188/2007 titled Raj Pal Singh & Ors. v. Ranjit Singh & Ors., in which a judgement dated 26th August, 2016 was passed, which would have non-suited the Plaintiffs in the present suit. The Trial Court has held that since the settled position of law is that under Order VII Rule 11 CPC, the Court can only go by the plaint and not by the written statement or the defence, Section 11 CPC cannot be considered as a part of the said application. However, while doing so, the Court has also come to the conclusion that under Order XIV Rule 2(2) CPC all the issues have to be adjudicated comprehensively together qua the earlier suit.

5. Mr. Ankit Jain, ld. counsel for the Defendant, submits that irrespective of whether the ground of res judicata could have been considered as part of the application under Order VII Rule 11 CPC or not, the Court could have actually considered the judgment passed in the earlier suit, which was an admitted document and a part of judicial record, and proceeded under Order XII Rule 6 CPC.

6. Mr. Gangania, ld. counsel appearing for the Plaintiff, submits that he has received the copy of the petition only yesterday.

7. This Court is of the opinion that the objection of res judicata ought to be heard after framing the same as an issue. The same can even be taken up as a preliminary issue. However, the objection of res judicata cannot be a ground for an order under Order VII Rule 11 CPC. A recent judgment of the Supreme Court in Srihari Hanumandas Totala v. Hemant Vithal Kamat & Ors. [Civil Appeal No.4665/2021, decided on 9th August, 2021] also holds that the principle of res judicata, which has been raised under Section 7 CPC may not be a ground for rejection of the plaint under Order VII Rule 11 CPC. The observations of the Supreme Court in this regard are extracted herein below:

"17. Section 11 of the CPC enunciates the rule of res judicata: a court shall not try any suit or issue in which the matter that is directly in issue has been directly or indirectly heard and decided in a `former suit'. Therefore, for the purpose of adjudicating on the issue of res judicata it is necessary that the same issue (that is raised in the suit) has been adjudicated in the former suit. It is necessary that we refer to the exercise taken up by this Court while adjudicating on res judicata, before referring to res judicata as a ground