Res-judicata cannot be a ground for rejection of a plaint under Order 7 Rule 11; only the plaint's averments are relevant at this stage.

Judgment

DATE OF JUDGMENT: 25/01/2024

The instant civil revision petition under Section 115 of the CPC has been filed by the petitioner-defendant no.1 against the order dated 23.09.2022 passed by learned Civil Judge, Sagwara, District Dungarpur (hereinafter referred to as the learned Trial Court) in Civil Original Suit No. 47/2022 whereby the learned Trial Court dismissed the application filed by the petitioner-defendant no. 1 under Section 11 read with Order 7 Rule 11 and read with Section 151 of the CPC.

2. Learned counsel for the petitioner submits that the learned Trial Court has erred in law while passing the impugned order. It is submitted that the suit is barred by res-judicata because a similar suit for permanent injunction based upon same facts was dismissed by the learned Trial Court vide judgment and decree dated 18.11.2005. The cause of action in both the suits is the same. It is further submitted that the former suit which was decided on 18.11.2005, was filed by the father of respondents- plaintiffs against the family members of the petitioner-defendant and was based on the same cause of action. Under the provisions of Section 11, CPC, a subsequent suit is barred if a former suit is decided between the same parties, or between parties under whom they or any of them claim litigating under the same title if the matter in issue is directly and substantially the same as in the former suit. In the present suit, the parties are legal heirs of the parties in the former suit and the subject matter of both the suits is same. Thus, the present suit is barred by res-judicata. Lastly, it is submitted that the learned Trial Court has erred in applying the provisions of Section 11 CPC in its correct perspective and thus the impugned order may be quashed and set aside. In support of his contentions, learned counsel relied upon the following judgments:

(I) Ishwardas v. Satte of MP, reported in 1979 0 AIR (SC) 551 .

(II) Saroja v. Chinnusamy (Dead) by LRs, reported in 2007 0 Supreme (SC) 1108 .

3. Thus, in view of the aforenoted legal submissions, it is prayed by the learned counsel that the present revision petition may be allowed and the impugned order dated 23.09.2022 passed by the learned Trial Court may be quashed and set aside and the application filed by the petitioner under Section 11 read with Order 7, Rule 11 and read with Section 151 CPC seeking rejection of the plaint may be allowed.

4. Heard learned counsel for the petitioner and perused the impugned order dated23.9.2022, previous judgment and decree dated 18.11.2005 passed in Civil Case No. 72/2000 as well as the judgments relied upon by the learned counsel.

5. On a perusal of material available on record, it is apparent that the subject matter of both the suits is a residential plot situated at Jui Talai, Galiakot, District Dungarpur. In the previous suit being Civil Original Suit No.72/2000 Punja S/o Kuber, Hunka S/o Kuber, Kamla W/o Kachara, Kuku W/o Kachara, Gamiri W/o Punja and Smt. Rami W/o Huka were impleaded as defendants whereas in subsequent suit being Civil Original Case No. 47/2022, Kachara was impleaded as defendant. Thus, in the previous suit, said Kachara was not party, whereas his two wives namely Kamla and Kuku were impleaded as party-defendant.

6. However, while deciding an application under Order 7 Rule 11 of the CPC, a party cannot raise a plea that the suit is barred by res-judicata. It is a settled position of law that while deciding an application under Order 7 Rule 11 of the CPC, only the averments contained in the plaint are to be considered. The defense of the defendant is irrelevant at the stage of deciding such an application.

7. In Kamala & others v. KT Eshwara Sa reported in (2008) 12 SCC 661 wherein the Hon'ble Supreme Court dealt with the question whether res judicata can be the basis or ground for rejection of the plaint. The paras nos.21 and 22 reads thus:

"21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the