The plea of res judicata is a mixed question of law and fact, and cannot be determined without evidence. Order 7 Rule 11(d) CPC has limited application and cannot be invoked to determine the plea of res judicata without evidence.

JUDGMENT

Alka Sarin, J. - The present revision petition under Article 227 of the Constitution of India has been filed impugning the order dated 22.02.2021 passed by the Civil Judge (Junior Division), Hisar vide which the application filed by the defendant-petitioners under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') seeking rejection of the plaint has been dismissed.

2. Brief facts relevant to the present lis, as borne out from the plaint (Annexure P-3) are that the suit property was originally owned by one Shree Niwas who is stated to have died in the year 1934. He was survived by his children namely, Shyam Sunder, Kunj Bihari, Krishan Sarup, Brij Nandan, Mohan Lal, Nitya Nand and Vidyawati. Nitya Nand was bachelor and is stated to have died issueless. Vidyawati daughter of Shree Niwas filed Civil Suit No.636-CS of 1985 seeking a declaration therein that she was co-owner to the extent of 1/6th share of the suit property. On 18.11.1992 the said suit was decreed to the extent that the plaintiff therein i.e. Vidyawati was co-owner to the extent of 1/36th share of the suit property and a preliminary decree was passed to this effect.

3. On 25.04.2017 the sons of Kunj Bihari and the adopted son of Shyam Sunder filed the present suit for possession by way of partition. The defendant-petitioners herein moved an application under Order 7 Rule 11 CPC (Annexure P-4) for rejection of the plaint on the ground of the same being barred by principle of res judicata. The plaintiff-respondent Nos.1 to 6 filed a reply (Annexure P-5) to the said application and contested the same. Vide impugned order dated 22.02.2021 the Trial Court dismissed the application. Aggrieved by the said order, the present revision petition has been preferred.

4. Learned counsel for the defendant-petitioners would contend that the suit is barred inasmuch as the earlier suit filed by Vidyawati was qua the same subject matter and was amongst the same parties. It is further the contention of learned counsel for the defendant-petitioners that the fact of filing of the previous suit is evident from the plaint itself.

5. Per contra, learned counsel for the plaintiff-respondent Nos.1 to 6 has contended that Order 7 Rule 11 CPC has a limited scope and a suit which is said to be barred by res judicata cannot be dismissed on an application under Order 7 Rule 11 CPC since a finding on whether the suit is barred by res judicata can be arrived at only once the evidence has been led. In support of his arguments learned counsel for the plaintiff-respondent Nos.1 to 6 has relied upon the judgments of Hon'ble the Supreme Court in Kamala & Ors. Vs. K.T. Eshwara Sa & Ors. [2008(12) SCC 661] and Vaish Aggarwal Panchayat Vs. Inder Kumar & Ors. [2020(12) SCC 809] and judgment of this Court in S. S. Ahluwalia Vs. S. P. S. Ahluwalia & Ors. [2012(4) RCR (Civil) 50].

6. Heard.

7. In the present case the application under Order 7 Rule 11 CPC has been filed on the ground that since the earlier suit was filed by Vidyawati and a preliminary decree was passed therein, the present suit would be barred. Learned counsel for the defendant-petitioners has argued that the suit would be barred since the parties are the same and the subject matter is the same. However, it is contended that the argument is not that it is barred by res judicata and, hence, the application under Order 7 Rule 11 CPC ought to have been allowed.

8. The question whether the suit is barred by the principles of res judicata would be a mixed question of law and fact. Order 7 Rule 11 CPC reads as under :

"11. Rejection of plaint - The plaint shall be rejected in the following cases :-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returne