The main legal point established in the judgment is that for considering the application under Order 7 Rule 11 CPC, only the plaint had to be seen, and the contents of the application or the written statement could not be considered. The court also emphasized that the suit was not barred by res judicata or Order 23 Rule 3A CPC as the plaintiff-respondent Nos.1 and 2 were not party to the previous litigation and the application lacked merit.

JUDGMENT :

ALKA SARIN, J.

1. The present civil revision petition under Article 227 of the Constitution of India has been filed challenging the impugned order dated 20.10.2015 dismissing the application filed by the defendant Nos.1 and 2-petitioners for rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (CPC).

2. The suit was filed by plaintiff-respondent Nos.1 and 2 for declaration challenging the gift deed dated 22.10.1992, judgment and decree dated 03.02.1995, sale deed dated 25.06.2001 and Will dated 24.11.1976. The plaintiff-respondent Nos.1 and 2 filed the suit challenging the said alienation on the ground that the alienated property was a part of the joint Hindu family property and hence the alienation is bad in law. The defendant Nos.1 and 2-petitioners filed a written statement as well as an application for dismissal of the suit on the ground of res judicata. It was averred in the application that an identical suit was filed by Parkash Singh and others. It was further averred that the plaintiff-respondent Nos.1 and 2 are the grandsons of Parkash Singh (defendant No. 3 in the suit) and earlier defendant Nos.3 and 4 had filed one civil suit for declaration challenging the same gift deed, judgment and decree and sale deed. The said suit was compromised and was dismissed as withdrawn on 04.04.2008. Thereafter defendant Nos.3 and 4 in the present suit once again filed an identical suit regarding the suit property on the same very ground and the same was dismissed on 04.08.2012 being not maintainable. It was averred that the present suit has been filed in collusion with defendant Nos.3 and 4. The application for dismissal of the suit was dismissed vide the impugned order dated 20.10.2015. Hence, the present civil revision petition.

3. Learned counsel for the defendant Nos.1 and 2-petitioners has vehemently contended that the present suit was barred by the principles of res judicata in view of the dismissal of the earlier suit filed by defendant Nos.3 and 4 as well as the suit prior to that in which the compromise had been entered into. It is further the contention of the learned counsel that the suit is barred under Order 23 Rule 3A CPC as no independent suit can be filed challenging a compromise decree. In support of his contentions, the learned counsel has relied upon the judgment of the Hon’ble Supreme Court in the case of M/s Sree Surya Developers and Promoters vs. N. Sailesh Prasad and Others, 2022 (5) SCC 736.

4. Per contra, the learned counsel for the plaintiff-respondent Nos.1 to 4 has contended that the Hon’ble Supreme Court in the case of Srihari Hanumandas Totala vs. Hemant Vithal Kamat and Others, 2021 (3) RCR (Civil) 768 has held that where a plaint does not disclose any fact that may lead to the conclusion that it deserves to be rejected on the ground that it is barred by principles of res judicata, a plaint cannot be rejected under Order 7 Rule 11D CPC.

5. Heard.

6. In the present case the plaintiff-respondent Nos.1 and 2 had filed the present suit claiming themselves to be having a share in the joint Hindu family property. Both the plaintiff-respondent Nos.1 and 2 were not parties to the previous litigation.

7. The Hon’ble Supreme Court in the case of Chhotanben and Another vs. Kiritbhai Jalkrushnabhai Thakkar and Others, 2018 (5) RCR (Civil) 163 has held as under :

“12. What is relevant for answering the matter in issue in the context of the application under Order VII Rule 11(d), is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order VII Rule 11(d). Only the averments in the plaint are germane. It is common ground that the registered sale deed is dated 18th October, 1996. The limitation to challenge the registered sale deed ordinarily would start running from the date on