The plea of res judicata under Section 11 of the CPC is a mixed question of law and fact that cannot be determined solely on an application under Order 7 Rule 11; further, a compromise decree, not being a decision on merits, does not operate as res judicata.

Judgment on Board

28.11.2025

1. The instant First Appeal under Section 96 of Code of Civil Procedure has been filed by the appellant/plaintiff against the order dated 08.07.2013 passed by the Additional District Judge, Link Court, Dongargarh, District Rajnandgaon in Civil Suit No.21-A/2009 whereby the plaint has been rejected as the same was barred by principle of res judicata under Order 7 Rule 11 of CPC which has the effect of decree as provided under Section 2 (2) of CPC.

2. The plaintiff filed a civil suit against the defendants before the trial court for declaration that he is the sole title holder of late Girdhari Ambade and his departmental as per will deed dated 12.11.1997 and also for declaring that the order dated 19.11.2008 passed in Succession Case No.4/2004 by the Civil Judge Class-I Dongargarh, is not binding upon him and also for permanent injunction that the defendants shall be restrained from plaintiff’s right to obtain the departmental dues of late Girdhari Ambade in his ownership. The claim of the plaintiff was that late Girdhari Ambade was his father and defendant No.1 is his mother and defendants No.2 to 4 are his sisters. Late Girdhari Ambade died on 11.10.2002. The first wife of Girdhari Ambade died on 10.02.1997 and his second wife is defendant No.1 and defendants No.2 to 4 are children of second wife. The plaintiff born from the wedlock of Girdhari Ambade and his first wife Munni Bai. On 12.11.1997 Girdhari Ambade executed a registered will in his favour. Girdhari Ambade was an employee of IOW Department of South East Central Railway, Nagpur Zone and during his service tenure he died. He left his departmental dues of Rs.2,31,544/- and by the will he made the plaintiff entitled to receive the said amount. The defendant No.1 is receiving his family pension and defendant No.2 to 4 are married and residing at their matrimonial houses. It is also pleaded that the defendants have obtained a compromise order in succession case No.04/2004 from Civil Judge, Class-I Dongargarh vide its order dated 19.11.2008 keeping the plaintiff in their influence with respect to succession of the estate of the deceased. When the plaintiff approached to the authorities to obtain the departmental dues of the deceased on the basis of the said Will, he was being informed that the plaintiff is not entitled for any part of the departmental dues as per the order dated 19.11.2008 then he filed the civil suit before the trial court.

3. When the notices were issued to the defendants, they made their appearance and on 12.08.2010 the defendants No.3 & 4 had filed an application under Order 7 Rule 11 CPC for rejection of the plaint on the ground that earlier the defendants have filed an application under Section 372 of Indian Succession Act, 1925 (in short, the Act, 1925) before the Civil Judge Class-I Dongargarh which was registered as Succession Case No.04/2004 in which an order has been passed on 19.11.2008 based on the compromise between the parties. The will executed in favour of plaintiff was also considered at the time when the order dated 19.11.2008 was passed and dispute between the parties have been settled and the plaintiff again raising dispute by filing civil suit which is barred by res judicata and his plaint is liable to be rejected.

4. The application filed by the defendants No.3&4 was replied by the plaintiff on 08.09.2010 and submitted that the order dated 19.11.2008 was obtained by the defendants keeping the plaintiff in influence and there is no consideration on the will executed in favour of plaintiff while passing the order dated 19.11.2008. The