Res judicata cannot be a ground for rejecting a plaint under Order 7 Rule 11 CPC; it must be decided after framing issues in trial.

Order on Board

23/06/2025

1. The applicants/defendants No.1 to 4 have filed this revision under Section 11 5 CPC challenging the impugned order dated 22.3.2025 passed by the Civil Judge Senior Division, Simga, District Baloda Bazar – Bhatapara in Civil Suit No.27-A/2023 by which the application filed by the present applicants/defendants under Order 7 Rule 11 CPC for rejection of plaint on the ground of suit being barred by res judicata has not been considered under Order 7 Rule 11(d) CPC. According to learned counsel for the applicants, there is apparent evidence on the face of it that the suit as filed by the plaintiff/respondent No.1 is hit by principle of res judicata and as such it is required to be dismissed at the threshold. However, the same has not been considered by the Trial Court, as such this revision has been filed.

2. I have heard learned counsel for the applicants.

3. The law in this respect is already settled. The principle of res judicata applicable in the case cannot be decided under Order 7 Rule 11 CPC. The Hon’ble Supreme Court has clarified that Order 7 Rule 11 CPC which deals with rejection of plaint is limited what apparent from the plaint itself and the documents accompanied it. Res judicata on the other hand requires an examination of previous suit(s), pleading(s), issue(s) and judgment(s) which comes beyond the scope of Order 7 Rule 11 CPC. It is not a pure question of law, but a mixed question of fact and law requiring evidence beyond the plaint. Therefore, it cannot be decided at the initial stage of considering an application filed under Order 7 Rule 11 CPC.

4. Time and again the Hon’ble Supreme Court has explicitly held that res judicata cannot be basis for rejecting a plaint under Order 7 Rule 11(d) CPC.

5. The issue in respect of dismissal of the plaint on the ground of res judicata has been dealt by the Hon’ble Supreme Court on several occasions. In a recent case, in the matter of Prem Kishore and others v. Brahm Prakash and others , (2023) 19 SCC 244, the Hon’ble Supreme Court has held as under:

“24. Before proceeding to refer to precedents on the interpretation of Order 7 Rule 11(d) CPC, we find it imperative to refer to Section 11 of CPC which defines res judicata:

"11. Res judicata. - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

25. Section 11 CPC enunciates the rule of res judicata: a court shall not try any suit or issue in which the matter that is directly in issue has been directly or indirectly heard and decided in a "former suit". Therefore, for the purpose of adjudicating on the issue of res judicata it is necessary that the same issue (that is raised in the suit) has been adjudicated in the former suit. It is necessary that we refer to the exercise taken up by this Court while adjudicating on res judicata, before referring to res judicata as a ground for rejection of the plaint under Order 7 Rule 11.

31. This Court in Soumitra Kumar Sen v. Shyamal Kumar Sen , (2018) 5 SCC 644 was examining a case where the defendant had moved an application before the trial court under Order 7 Rule 11 of CPC requesting the court to reject the plaint on the ground of res judicata. The Courts below had rejected such a prayer upon which the defendant had approached this Court. This Court, referring to its various judgments on the point, upheld such orders observing that if the averments made by the appellant in the written statement are correct, the suit may not be maintainable. However, at this stage, as rightly held by this Court, the defence in the written statement cannot be gone into. One has to look into the plaint