Under Order 7 Rule 11 of the CPC, a court must consider only the plaint's averments and the plaintiff's documents. It cannot rely on the defendant's pleadings or documents to reject a plaint, especially when the cause of action involves mixed questions of law and fact.

ORDER :

Ashish Shroti, J.

The present petition has been filed by the petitioners challenging the order dated 13.09.2022 passed by the learned 5th Civil Judge, Junior Division, Morena in RCS-A No.45/2022, whereby their application under Order 7 Rule 11 of the Code of Civil Procedure has been rejected by the learned Trial Court.

2. Respondent No.1 to 6 (hereinafter referred to as the 'plaintiffs') have filed a civil suit seeking declaration of title and permanent injunction against the petitioners and respondent no.7 to 19 in respect of land bearing Survey No.415/2 situated at Village Hingona Khurd, Tehsil and District Morena.

3. Upon service of notice, the petitioners (Defendant No.14 to 18) appeared and filed an application under Order 7 Rule 11 CPC seeking rejection of plaint on the ground that an earlier suit for the same relief, based on the same cause of action, had already been dismissed as abated under Order 22 Rule 9 CPC. They, therefore, prayed for rejection of the plaint under clauses (a) & (d) of Order 7 Rule 11 CPC. The respondents filed reply opposing the application. It was contended that the earlier suit was not decided on merits and, therefore, the principle of res judicata is not attracted. It was further submitted that the issue of res judicata cannot be adjudicated at the stage of deciding an application under Order 7 Rule 11 CPC. The plaintiffs also contended that the present suit is based on a fresh cause of action.

4. The learned Trial Court, vide the impugned order dated 13.09.2022, accepted the contentions of the plaintiffs and rejected the application, holding that the issue of res judicata involves mixed questions of law and facts which should be decided as a preliminary issue. the learned Trial Court also observed in its order that from the order dated 18.08.2021, passed in previous suit, it is not clear as to whether it was in relation to same property or not. It was further observed that while deciding an application under Order 7 Rule 11 CPC, only the averments made in the plaint are to be considered. Aggrieved by the said order, the present petition has been filed.

5. Learned counsel for the petitioners challenged the impugned order on the ground that the plaintiffs had earlier filed a suit on identical grounds in respect of the same property. By referring to the plaint of the earlier suit as well as the present suit, it was submitted that the claim of the plaintiffs in both suits is based on adverse possession over the suit property. Referring to the order dated 18.08.2021, it was submitted that the earlier suit was dismissed as abated due to failure on the part of the plaintiffs to bring on record the legal heirs of plaintiff no.1 and defendant no.6. It was argued that in view of Order 22 Rule 9 CPC, the present suit is barred. It was further submitted that the cause of action in the present suit is essentially the same as in the earlier suit, and that by clever drafting, an attempt has been made to project it as a fresh cause of action. Accordingly, it was contended that the plaint is liable to be rejected as being barred under Order 22 Rule 9 CPC.

6 . Per contra, learned counsel for the plaintiffs submitted that the application under Order 7 Rule 11 CPC was filed invoking principle of res judicata. It is his submission that the issue of res judicata cannot be decided at the initial stage in the absence of evidence. It was further submitted that the plaintiffs have fairly disclosed the factum of filing and disposal of the earlier suit in the present plaint. It was contended that the present suit is based on a distinct and subsequent cause of action and, therefore, the plaint cannot be rejected. It was also argued that the application filed by defendants was not specifically based on Order 22 Rule 9 CPC, as has been contended by the petitioners. On these grounds, dismissal of the petition was prayed for.

7. Considered the arguments and perused the record.

8. The controversy involved in this case centers