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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 9^thDecember, 2021

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C.R.P. 92/2021

SH. SUNDER SINGH

..... Petitioner

Through:

Mr. Ankit Jain, Mr. Mohit Gupta and

Mr.

Vishal

Saxena,

Advocates.

(M:9354808102)

versus

AJAY PAL SINGH & ORS.

..... Respondents

Through:

Mr. Gangania, Advocate.

CORAM:

JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

1.

This hearing has been done in physical Court. Hybrid mode is

permitted in cases where permission is being sought from the Court.

CM APPL.44257/2021 (for exemption)

2.

Allowed, subject to all just exceptions. Application is disposed of.

C.R.P.92/2021 & CM APPL.44256/2021 (for stay)

3.

The present petition challenges the impugned order dated 30^thJune,

2021 passed by the Ld. ADJ, Karkardooma Courts, Delhi (hereinafter “Trial

Court”) in CS No.2581/16 titled Ajay Pal Singh & Ors. v. Rajinder Singh

& Ors. Vide this common order, the Trial Court allowed the application of

the Plaintiffs/Respondent Nos.1-6 (hereinafter “Plaintiffs”) under Order VI

Rule 17 Civil Procedure Code, 1908 (hereinafter “CPC”) and rejected the

application under Order VII Rule 11(d) CPC read with Section 11 CPC filed

by

the

Defendants/Petitioner

&

Respondent

Nos.7-54

(hereinafter

“Defendant”).

2021:DHC:4099

4.

The present petition only relates to the application under Order VII

Rule 11 read with Section 11 CPC. The question that has arisen in this case

is as to whether the issue of a suit being barred by the principle of res

judicata under Section 11 CPC can be a ground of rejection of the plaint

under Order VII Rule 11 CPC. The case of the Defendant is that there was

an earlier suit being CS No.188/2007 titled Raj Pal Singh & Ors. v. Ranjit

Singh & Ors., in which a judgement dated 26^thAugust, 2016 was passed,

which would have non-suited the Plaintiffs in the present suit. The Trial

Court has held that since the settled position of law is that under Order VII

Rule 11 CPC, the Court can only go by the plaint and not by the written

statement or the defence, Section 11 CPC cannot be considered as a part of

the said application. However, while doing so, the Court has also come to

the conclusion that under Order XIV Rule 2(2) CPC all the issues have to be

adjudicated comprehensively together qua the earlier suit.

5.

Mr. Ankit Jain, ld. counsel for the Defendant, submits that

irrespective of whether the ground of res judicata could have been

considered as part of the application under Order VII Rule 11 CPC or not,

the Court could have actually considered the judgment passed in the earlier

suit, which was an admitted document and a part of judicial record, and

proceeded under Order XII Rule 6 CPC.

6.

Mr. Gangania, ld. counsel appearing for the Plaintiff, submits that he

has received the copy of the petition only yesterday.

7.

This Court is of the opinion that the objection of res judicata ought to

be heard after framing the same as an issue. The same can even be taken up

as a preliminary issue. However, the objection of res judicata cannot be a

ground for an order under Order VII Rule 11 CPC. A recent judgment of the

2021:DHC:4099

Supreme Court in Srihari Hanumandas Totala v. Hemant Vithal Kamat &

Ors. [Civil Appeal No.4665/2021, decided on 9^thAugust, 2021] also holds

that the principle of res judicata, which has been raised under Section 7

CPC may not be a ground for rejection of the plaint under Order VII Rule 11

CPC. The observations of the Supreme Court in this regard are extracted

herein below:

“17. Section 11 of the CPC enunciates the rule of res

2021:DHC:4099

2021:DHC:4099

2021:DHC:4099

2021:DHC:4099

2021:DHC:4099

Similarly, in

Soumitra

Kumar Sen (supra), an

application was moved under Order 7 Rule 11 of the

CPC claiming rejection of the plaint on the ground

that the suit was barred by res judicata. The Trial

Judge dismissed the application and the judgement of

the Trial Court was affirmed in revision by the High

Court. Justice A