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RSA No. 2844 of 2023

2023:PHHC: 124447

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

RSA No. 2844 of 2023(O&M)

Date of Decision: 21.09.2023

Jagbir Singh

…Appellant

Versus

Jasbir Singh & Ors.

…Respondents

CORAM :HON’BLE MR. JUSTICE KARAMJIT SINGH

Present:- Mr. J.S. Bedi, Advocate

For the appellant.

***

KARAMJIT SINGH, J.

1.

The present regular second appeal has been filed by the

appellant/ plaintiff against the order dated 25.07.2019 whereby the

application filed by respondents under Order 7 Rule 11 CPC was allowed

and the plaint was rejected on the ground that the suit filed by the appellant/

plaintiff was barred by principle of res judicata and judgment dated

08.05.2023 whereby the appeal filed by the appellant/ plaintiff against the

aforesaid order dated 25.07.2019 has been dismissed by the Court of

Additional District Judge, Panipat.

2.

The counsel for the petitioner while assailing both the

impugned orders has, inter alia, contended that it requires recording of

evidence to decide the issue of res judicata and the suit could not be

disposed of at very initial stage on the ground that the same is hit by

principle of res judicata, simply on the basis of the averments made in the

plaint. In support of his contentions, the counsel for the petitioner has placed

reliance upon the judgments of Hon’ble Supreme Court in Soumitra

Kumar Sen Vs. Shyamal Kumar Sen, 2018(2) RCR(Civil) 223 and

JITEN SHARMA

2023.09.22 10:20

I attest to the accuracy and

integrity of this document

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RSA No. 2844 of 2023

2023:PHHC: 124447

Shakti Bhog Food Industries Limited Vs. Central Bank of India & Anr.,

2020(3) PLR 487.

3.

I have considered the submissions made by counsel for the

petitioner.

4.

There is no doubt regarding the law laid down by the Hon’ble

Apex Court in afore cited judgments which are referred by counsel for the

petitioner in support of his contentions. It is settled position of law that for

the purpose of disposal of an application filed under Order 7 Rule 11 CPC,

the Court can only consider the averments made in the plaint and at most the

documents produced along with the plaint. While dealing with such an

application the defence taken by the defendant cannot be considered by the

Court concerned. The Hon’ble Apex Court in Civil Appeal No. 5841 of

2023 (Keshav Sood Vs. Kirti Pradeep Sood & Ors.) decided on 12.09.2023

has held that the issue of res judicata requires a detailed examination of

various elements, including the pleadings in the previous suit and the issues

involved in the previous litigation and the judgments passed by the trial

Court and the Appellate Courts in the said earlier litigation. In order to prove

the plea of res judiciata, it requires to be substantiated by producing the

copies of the pleadings, issues and judgment in the previous litigation and as

such the question of res judicata cannot be decided simply by going through

the averments made in the plaint.

5.

In light of the above discussion, the impugned orders dated

25.07.2019 passed by the Court of Civil Judge (Sr.Divn.), Panipat and dated

08.05.2023 passed by the Court of Additional District Judge, Panipat are not

sustainable being not passed in conformity with settled position of law, as

has been discussed above.

JITEN SHARMA

2023.09.22 10:20

I attest to the accuracy and

integrity of this document

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RSA No. 2844 of 2023

2023:PHHC: 124447

6.

Resultantly, the appeal is allowed and both the impugned orders

are hereby set aside. The trial Court is directed to proceed with the suit and

dispose of the same in accordance with law after issuing notice to the

defendants. The petitioner is directed to appear in the learned trial Court for

further proceedings on 10.10.2023.

7.

Keeping in view the circumstances mentioned above, this

petition is being disposed of without issui