1. Appeal against dismissal of civil suit as barred by res judicata under Order VII Rule 11 CPC. (Para 02 , 03 , 04 , 05 )
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2026 Supreme(MP) 268
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
PAVAN KUMAR DWIVEDI, J.
Gordhan – Appellant
Versus
Ramchandra S/o Ganpat (Decd.) Thr. Lrs Arjun And Others- Respondents
First Appeal No. 830 Of 2014
Decided On : 17-07-2026
Important Points
IMPORTANT POINT
The principle of res judicata under Section 11 and the bar under Order II Rule 2 of the CPC cannot be the basis for rejecting a plaint under Order VII Rule 11, as such determinations require the recording of evidence and a full trial.
The principle of res judicata under Section 11 and the bar under Order II Rule 2 of the CPC cannot be the basis for rejecting a plaint under Order VII Rule 11, as such determinations require the recording of evidence and a full trial.
Subject
Civil Law - Civil Procedure Code
Act Referred
Headnote
(1) Civil P. C., 1908 -- S. 11, O. 2 R. 2 and O. 7 R. 11 -- stage at which principle of res judicata is to be applied -- issue of res judicata cannot be considered in application under O. 7 R. 11 -- it involves questions which can only be decided after recording evidence. 2026 SCC Online SC 603 followed. [Para 21
(2) Civil P. C., 1908 -- S. 11, O. 2 R. 2 and O. 7 R. 11 -- rejection of plaint on principle of res judicata -- earlier suit was only with respect to one survey number -- entire family property was not in issue -- in subsequent suit, partition of entire family property is sought along with cancellation of sale deeds out of parts of family property -- prima facie does not appear to be same as in earlier suit -- question of res judicata in terms of S. 11 and O. 2 R. 2 could not have been decided before recording evidence, at stage of consideration of application under O. 7 R. 11 -- rejection of plaint set aside -- civil suit restored. 2026 SCC Online SC 603 followed. (2005) 5 SCC 548, (2014) 3 SCC 595, (1977) 4 SCC 467 and Civil Revision No. 596 of 2022 decided on 25.1.2022 distinguished. (2010) 10 SCC 141, (2020) 12 SCC 809, (2021) 9 SCC 99, 2015(4) MPLJ 309 and 2026 (1) RN 192 (SC??) referred to. [Paras 13, 16, 21 & 22
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Legal Category Hierarchy
- practice and procedure
- property law
Advocates Appeared:
For the Appellant : Shri Rajendra Kumar Samdani, learned counsel appears through V.C. and Shri Sidharth Chhajed, learned counsel
For the Respondent: Shri Vishal Baheti, learned Senior Counsel assisted by Shri Harshit Sharma, learned counsel, Shri Anuj Bhargava, learned counsel
For the Appellant : Shri Rajendra Kumar Samdani, learned counsel appears through V.C. and Shri Sidharth Chhajed, learned counsel
For the Respondent: Shri Vishal Baheti, learned Senior Counsel assisted by Shri Harshit Sharma, learned counsel, Shri Anuj Bhargava, learned counsel
Table of Contents
2. Dispute over whether res judicata bar can be decided at Order VII Rule 11 stage without evidence. (Para 06 , 07 , 08 )
3. Appeal allowed; impugned order set aside; suit restored for fresh decision in accordance with law. (Para 22 )
4. Can the issue of res judicata be decided on an application under Order VII Rule 11 of the CPC before recording evidence?
No. The issue involves questions of fact that can only be decided after recording evidence, as held by the Supreme Court. (Para 09 , 21 , 22 )
5. Can the bar under Order II Rule 2 of the CPC be a ground for rejection of a plaint under Order VII Rule 11?
No. A plea under Order II Rule 2 cannot be the basis for rejection of a plaint under Order VII Rule 11(d). (Para 09 , 18 , 21 )
6. Is a mere description of property in a plaint sufficient to make it subject matter of a suit for res judicata purposes?
No. The actual dispute must be determined from cumulative pleadings and issues framed, not merely from property description. (Para 10 , 13 , 14 , 16 )
7. What is the proper approach for a court when analyzing plaints in former and subsequent suits for res judicata?
The court must compare the averments and issues in both suits without treating the second plaint as evidence, assessing if causes of action are distinct. (Para 18 , 21 )
ORDER :
PAVAN KUMAR DWIVEDI, J.
This is plaintiff's appeal being aggrieved by the order dated 07.05.2014 passed in Civil Suit No. 25-A/2013 whereby the suit of the appellant was dismissed on an application filed by the defendants under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short 'the CPC') even before recording evidence under Section 11 of the CPC by holding that it is barred by res judicata.
02. The facts relevant for the purposes of the present case are that the appellant filed a suit for declaration of title, permanent injunction as also the declaration of sale deed and gift deeds as null and void as well as for partition and for grant of mesne profit against defendants No. 1 to 16. Defendant No. 17 being the State of M.P. was only a formal party. Defendants No. 1 to 5 are the real brothers of the plaintiff and defendants No. 6 to 16 are the purchasers of the suit property.
03. The defendants No. 1 to 16 filed an application in the suit under Section 11 and Order VII Rule 11 of the CPC, thereby contending that the present suit is barred by res judicata in view of the judgement passed by the Competent Civil Court in Civil Suit No. 14-A/2006 between the plaintiff and defendants No. 1 to 5. It was contended that the earlier suit was based on same cause of action for same property and between the same parties. Once the previous suit was decided, fresh suit is barred by the principle of res judicata.
04. The appellant/plaintiff filed reply to this application and contended that the earlier suit was only with respect to land situated in survey No. 525 and that too with respect to restraining construction on the said survey number and also to restrain alienation on the part of that survey number whereas in the present suit all the survey numbers of the joint family property are involved. Apart from this, other property of the joint family situated at Tejaji Chowk and one other plot is also included in the present suit. It was also contended that the cause of action in the present suit is different.
05. The trial Court after considering the application filed under Order VII Rule 11 of CPC and and its reply, passed the impugned order on 07.05.2014 whereby the Court held that the defendants have produced in support of their application the judgment of the Civil Judge, Classs-II, Sanwer passed in earlier suit i.e. Suit No. 52A/2004 as well as copy of the plaint. It would be proper to note here that apparently, the trial Court incorrectly observed that these documents are filed by the defendants as from the record it is reflected that those were submitted along with plaint. The Court on perusal of the judgment in earlier suit and plaint observed that in earlier suit also relief of partition, declaration and permanent injunction was sought and in the present suit also, same relief has been sought along with mesne profit, thus, the Court concluded that the subsequent suit is barred by the principle of res judicata. Consequently, the suit was dismissed in terms of Section 11 of the CPC by the impugned order. Thus, being aggrieved by the same, the present appeal has been filed by the plaintiff.
06. Learned counsel for the appellant while criticizing the judgment of the trial Court submits that the Court completely ignored the pleadings in the earlier suit and the dispute involved. He submits that though in para-1 of the earlier plaint description of the total property was given, however, a perusal of the pleadings would show that entire property was not the subject matter of the dispute before the trial Court, rather the dispute was only with respect to construction and efforts to alienate the land situated in survey No. 525 and none else. He submits that the Court completely ignored that even issues on the question of partition of the entire family property were not framed and there was complete absence of any consideration in this respect. He then refers to the pleadings in the present suit and points out that in the prese
