Order on Board

22.03.2025

1. This Civil Revision has been filed against the order dated 10.01.2024 passed by the Civil Judge Class-2 Korba District Korba (Chhattisgarh) in Civil Suit No.18-A/2020 whereby, application preferred by the applicants/defendants under Section 11 of Code of Civil Procedure that the suit is barred by res-judicata was dismissed.

2. Facts of the case in brief are that Respondent No.1/plaintiff had earlier filed a civil suit bearing No.24-A/2014 before 1st Civil Judge Class-1 Korba, District Korba (Chhattisgarh) for declaration, partition and permanent injunction of the subject property i.e. Khasra No.204, admeasuring area 0.410 hectare situated at village Nakatikhar, Patwari Halka No.5, Tehsil and District Korba. The said civil suit was dismissed vide judgment dated 31.03.2015, against which, Respondent No.1/plaintiff preferred Civil Appeal bearing No.22-A/2015 before Additional District Judge (FTC) Korba, District Korba (C.G.) which was also dismissed vide judgment dated 15.07.2022, against which, Second Appeal bearing No.445/2022 was filed which is pending consideration.

3. Learned counsel for the applicants submits that during the pendency of the first appeal, Respondent No.1 again filed a subsequent Civil Suit bearing No.18-A/2020 for the same property seeking almost the same reliefs by changing the words in the prayer clause. Hence, in both the suits, the subject matter is directly and substantially the same, therefore, the principle of res-judicata attracts and filing of the subsequent civil suit is an abuse of process of Court. Lastly, he submits that the trial Court has wrongly dismissed the application filed by the applicants under Section 11 of the CPC and prays to allow this revision and the impugned order may be set aside.

4. On the other hand, learned counsel for Respondent No.1/plaintiff would submit that finality has not been attained as the second appeal is pending before this Court. Learned counsel further submits that in the matter of State of Andhra Pradesh And Others v. B. Ranga Reddy (DEAD) BY {(2020) 15 SCC 681} it has been LEGAL REPRESENTATIVES AND OTHERS categorically observed that when the findings are subject matter of the challenge in the appeals, principle of res-judicata would not attract and para 33 of the said judgment was referred, which read as under:-

33. Section 11 and Explanation I of the Code would be applicable in subsequent proceedings between the same parties or between the parties under whom they or any of them claimed under the same title. But the findings in the first and second suit will not operate as res judicata as such findings are subject matter of challenge in the appeals filed by the plaintiffs in their respective suits. All the three suits have been decided together and the three appeals pending against such judgment and decrees. Therefore, it cannot be said that the first and the second suits are the former suits as the decree passed therein has not attained finality. The findings recorded therein will not, therefore, operate as res judicata as the State is not obliged to challenge findings on Issue No.1 in the first and second suit even after the amendment of Order 41 Rule 22 of the Code.

5. Learned counsel for Respondent No.1 would further submit that the issue relating to the applicability of bar of res-judicata cannot be determined at the stage of rejection of plaint and the same can only be determined upon framing of the proper preliminary issues during trial of the suit as the averments only in the plaint itself may be considered at this stage. Learned counsel placed reliance in the matter of Srihari Hanumandas Totala vs. Hemant Vithal Kamat and Others [(2021) 9 SCC 99] and referred to para 17, 18, 25 and 28, which are reproduced hereunder:-

“17. Order 7 Rule 11(d) CPC provides that the plaint shall be rejected “where the suit appears from the statement in the plaint to be barred by any law”. Hence, in order to decide whether the suit is barred by any l