C.R.P./92/2021 of SH. SUNDER SINGH Vs AJAY PAL SINGH & ORS.

Digitally Signed By:DEVANSHUJOSHISigning Date:13.12.2021 17:08:20

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 9[th]December, 2021

+C.R.P. 92/2021

SH. SUNDER SINGH

..... PetitionerThrough:Mr. Ankit Jain, Mr. Mohit Gupta andMr.VishalSaxena,Advocates.(M:[REDACTED])

versus

AJAY PAL SINGH & ORS...... RespondentsThrough:Mr. Gangania, Advocate.

CORAM:JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

1.This hearing has been done in physical Court. Hybrid mode ispermitted 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[th]June,2021 passed by the Ld. ADJ, Karkardooma Courts, Delhi (hereinafter “TrialCourt”) in CS No.2581/16 titled Ajay Pal Singh & Ors. v. Rajinder Singh& Ors. Vide this common order, the Trial Court allowed the application ofthe Plaintiffs/Respondent Nos.1-6 (hereinafter “Plaintiffs”) under Order VIRule 17 Civil Procedure Code, 1908 (hereinafter “CPC”) and rejected theapplication under Order VII Rule 11(d) CPC read with Section 11 CPC filedbytheDefendants/Petitioner&RespondentNos.7-54(hereinafter“Defendant”).

Digitally Signed By:DEVANSHUJOSHI

Signing Date:13.12.2021 17:08:20

4.The present petition only relates to the application under Order VIIRule 11 read with Section 11 CPC. The question that has arisen in this caseis as to whether the issue of suit being barred by the principle of resjudicata under Section 11 CPC can be ground of rejection of the plaintunder Order VII Rule 11 CPC. The case of the Defendant is that there wasan earlier suit being CS No.188/2007 titled Raj Pal Singh & Ors. v. RanjitSingh & Ors., in which judgement dated 26[th]August, 2016 was passed,which would have non-suited the Plaintiffs in the present suit. The TrialCourt has held that since the settled position of law is that under Order VIIRule 11 CPC, the Court can only go by the plaint and not by the writtenstatement or the defence, Section 11 CPC cannot be considered as part ofthe said application. However, while doing so, the Court has also come tothe conclusion that under Order XIV Rule 2(2) CPC all the issues have to beadjudicated comprehensively together qua the earlier suit.

5.Mr. Ankit Jain, ld. counsel for the Defendant, submits thatirrespective of whether the ground of res judicata could have beenconsidered as part of the application under Order VII Rule 11 CPC or not,the Court could have actually considered the judgment passed in the earliersuit, which was an admitted document and part of judicial record, andproceeded under Order XII Rule 6 CPC.

6.Mr. Gangania, ld. counsel appearing for the Plaintiff, submits that hehas received the copy of the petition only yesterday.

7.This Court is of the opinion that the objection of res judicata ought tobe heard after framing the same as an issue. The same can even be taken upas preliminary issue. However, the objection of res judicata cannot be aground for an order under Order VII Rule 11 CPC. recent judgment of the

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Supreme Court in Srihari Hanumandas Totala v. Hemant Vithal Kamat &Ors. [Civil Appeal No.4665/2021, decided on 9[th]August, 2021] also holdsthat the principle of res judicata, which has been raised under Section 7CPC may not be ground for rejection of the plaint under Order VII Rule 11CPC. The observations of the Supreme Court in this regard are extractedherein below:

“17. Section 11 of the CPC enunciates the rule of resjudicata: court shall not try any suit or issue in whichthe matter that is directly in issue has been directly orindirectly heard and decided in ‘former suit’.Therefore, for the purpose of adjudicating on the issueof res judicata it is necessary that the same issue (thatis raised in the suit) has been adjudicated in the formersuit. It is necessary that we refer to the exercise takenup by this Court while adjudicating on res judicata,before referring to res judicata as ground forrejection of the plaint under Order 7 Rule 11. Justice RC Lahoti (as the learned Chief Justice then was),speaking for two Judge bench in V. Rajeshwari v.T.C. Saravanabava discussed the plea of res judicataand the particulars that would be required to prove theplea. The court held that it is necessary to refer to thecopies of the pleadings, issues and the judgment of the‘former suit’ while adjudicating on the plea of resjudicata:

“11. The rule of res judicata does not strike at theroot of the jurisdiction of the court trying thesubsequent suit. It is rule of estoppel byjudgment based on the public policy that thereshould be finality to litigation and no one shouldbe vexed twice for the same cause.root of the jurisdiction of the court trying thesubsequent suit. It is rule of estoppel byjudgment based on the public policy that thereshould be finality to litigation and no one shouldbe vexed twice for the same cause.

13. Not only the plea has to be taken, it has to besubstantiated by producing the copies of thepleadings, issues and judgment in the previouscase. Maybe, in given case only copy of

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judgment in previous suit is filed in proof of pleaofresjudicataandthejudgmentcontainsexhaustive or in requisite details the statement ofpleadings and the issues which may be taken asenough proof. But as pointed out in Syed Mohd.Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780]the basic method to decide the question of resjudicata is first to determine the case of thepartiesasputforwardintheirrespectivepleadings of their previous suit and then to findout as to what had been decided by the judgmentwhich operates as res judicata. It is risky tospeculateaboutthepleadingsmerelybyasummary of recitals of the allegations made in thepleadingsmentionedinthejudgment.TheConstitution Bench in Gurbux Singh v. Bhooralal[AIR 1964 SC 1810 : (1964) 7 SCR 831] placingon par the plea of res judicata and the plea ofestoppel under Order 2 Rule 2 of the Code ofCivil Procedure, held that proof of the plaint inthe previous suit which is set to create the bar,ought to be brought on record. The plea isbasically founded on the identity of the cause ofaction in the two suits and, therefore, it isnecessary for the defence which raises the bar toestablish the cause of action in the previous suit.Such pleas cannot be left to be determined bymere speculation or inferring by process ofdeduction what were the facts stated in theprevious pleadings. Their Lordships of the PrivyCouncil in Kali Krishna Tagore v. Secy. of Statefor India in Council [(1887-88) 15 1A 186 : ILR16 Cal 173] pointed out that the plea of resjudicatacannotbedeterminedwithoutascertaining what were the matters in issue in theprevious suit and what was heard and decided.Needless to say, these can be found out only bylooking into the pleadings, the issues and the

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judgmentintheprevioussuit.”(emphasissupplied)

18.At this stage, it would be necessary to refer to thedecisions that particularly deal with the questionwhether res judicata can be the basis or ground forrejection of the plaint. In Kamala & others v. KTEshwaraSa,theTrialJudgehadallowedanapplication for rejection of the plaint in suit forpartition and this was affirmed by the High Court.Justice S Sinha speaking for the two judge benchexamined the ambit of Order 7 Rule 11(d) of the CPCand observed:

“21. Order 7 Rule 11(d) of the Code has limitedapplication. It must be shown that the suit isbarred under any law. Such conclusion must bedrawn from the averments made in the plaint.Different clauses in Order 7 Rule 11, in ouropinion, should not be mixed up. Whereas in agiven case, an application for rejection of theplaint may be filed on more than one groundspecified in various sub-clauses thereof, clearfinding to that effect must be arrived at. Whatwould be relevant for invoking clause (d) of Order7 Rule 11 of the Code are the averments made inthe plaint. For that purpose, there cannot be anyaddition or subtraction. Absence of jurisdiction onthe part of court can be invoked at differentstages and under different provisions of the Code.Order 7 Rule 11 of the Code is one, Order 14Rule 2 is another.

22. For the purpose of invoking Order 7 Rule11(d) of the Code, no amount of evidence can belooked into. The issues on merit of the matterwhich may arise between the parties would not bewithin the realm of the court at that stage. Allissues shall not be the subject-matter of an orderunder the said provision.” (emphasis supplied)

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The Court further held:

“23.Theprinciplesofresjudicata,whenattracted, would bar another suit in view ofSection 12 of the Code. The question involving amixed question of law and fact which may requirenot only examination of the plaint but also otherevidence and the order passed in the earlier suitmay be taken up either as preliminary issue orat the final hearing, but, the said question cannotbe determined at that stage.

24. It is one thing to say that the averments madein the plaint on their face discloses no cause ofaction, but it is another thing to say that althoughthe same discloses cause of action, the same isbarred by law.

25. The decisions rendered by this Court as alsoby various High Courts are not uniform in thisbehalf. But, then the broad principle which can beculled out therefrom is that the court at that stagewould not consider any evidence or enter into adisputed question of fact or law. In the event, thejurisdiction of the court is found to be barred byany law, meaning thereby, the subject-matterthereof, the application for rejection of plaintshould be entertained.” (emphasis supplied)

The above view has been consistently followed in lineof decisions of this Court. In Church of ChristCharitable Trust & Educational Charitable Society v.Ponniamman Educational Trust, Justice P Sathasivam(as the learned Chief Justice then was), speaking for atwo judge Bench, observed that

“10. […] It is clear from the above that where theplaint does not disclose cause of action, therelief claimed is undervalued and not corrected

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within the time allowed by the court, insufficientlystamped and not rectified within the time fixed bythe court, barred by any law, failed to enclose therequired copies and the plaintiff fails to complywith the provisions of Rule 9, the court has noother option except to reject the same. readingof the above provision also makes it clear thatpower under Order 7 Rule 11 of the Code can beexercised at any stage of the suit either beforeregistering the plaint or after the issuance ofsummons to the defendants or at any time beforethe conclusion of the trial.

11. This position was explained by this Court inSaleem Bhai v. State of Maharashtra [(2003) 1SCC 557], in which, while considering Order 7Rule 11 of the Code, it was held as under: (SCC p.560, para 9)

“9. perusal of Order 7 Rule 11 CPC makes itclear that the relevant facts which need to belookedintofordecidinganapplicationthereunder are the averments in the plaint. Thetrial court can exercise the power under Order 7Rule 11 CPC at any stage of the suit—beforeregistering the plaint or after issuing summons tothe defendant at any time before the conclusion ofthe trial. For the purposes of deciding anapplication under clauses (a) and (d) of Rule 11of Order 7 CPC, the averments in the plaint aregermane; the pleas taken by the defendant in thewritten statement would be wholly irrelevant atthat stage, therefore, direction to file the writtenstatement without deciding the application underOrder 7 Rule 11 CPC cannot but be proceduralirregularity touching the exercise of jurisdictionby the trial court.”

It is clear that in order to consider Order 7 Rule

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11, the court has to look into the averments in theplaint and the same can be exercised by the trialcourt at any stage of the suit. It is also clear thattheavermentsinthewrittenstatementareimmaterial and it is the duty of the Court toscrutinize the averments/pleas in the plaint. Inother words, what needs to be looked into indeciding such an application are the averments inthe plaint. At that stage, the pleas taken by thedefendant in the written statement are whollyirrelevant and the matter is to be decided only onthe plaint averments. These principles have beenreiterated in Raptakos Brett & Co. Ltd. v. GaneshProperty [(1998) 7 SCC 184] and Mayar (H.K.)Ltd. v. Vessel M.V. Fortune Express [(2006) 3SCC 100].”

Similarly, inSoumitraKumar Sen (supra), anapplication was moved under Order 7 Rule 11 of theCPC claiming rejection of the plaint on the groundthat the suit was barred by res judicata. The TrialJudge dismissed the application and the judgement ofthe Trial Court was affirmed in revision by the HighCourt. Justice AK Sikri, while affirming the judgment

of the High Court held:

“9. In the first instance, it can be seen thatinsofar as relief of permanent and mandatoryinjunction is concerned that is based on adifferent cause of action. At the same time thatkind of relief can be considered by the trialcourt only if the plaintiff is able to establish hislocus standi to bring such suit. If theaverments made by the appellant in theirwritten statement are correct, such suit maynot be maintainable inasmuch as, as per theappellant it has already been decided in theprevious two suits that Respondent 1 -plaintiffretired from the partnership firm much earlier,

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after taking his share and it is the appellant (orappellant and Respondent 2) who are entitledto manage the affairs of M/s Sen Industries.However, at this stage, as rightly pointed outby the High Court, the defense in the writtenstatement cannot be gone into. One has toonly look into the plaint for the purpose ofdeciding application under Order 7 Rule 11CPC. It is possible that in cleverly draftedplaint, the plaintiff has not given the detailsabout Suit No. 268 of 2008 which has beendecided against him. He has totally omitted tomention about Suit No. 103 of 1995, thejudgment wherein has attained finality. In-that sense, the plaintiffRespondent 1 may beguilty of suppression and concealment, if theavermentsmadebytheappellantareultimately found to be correct. However, asper the established principles of law, such adefense projected in the written statementcannotbelookedintowhiledecidingapplication under Order 7 Rule 11 CPC.”ReferringtoKamala(supra),theCourtfurtherobserved that

“12. … The appellant has mentioned about theearlier two cases which were filed by Respondent1 and wherein he failed. These are judicialrecords. The appellant can easily demonstrate thecorrectness of his averments by filing certifiedcopies of the pleadings in the earlier two suits aswell as copies of the judgments passed by thecourts in those proceedings. In fact, copies of theorders passed in judgement and decree dated 31-3-1997passedbytheCivilJudge(JuniorDivision), copy of the judgment dated 31-3- 1998passed by the Civil Judge (Senior Division)upholding the decree passed by the Civil Judge(Junior Division) as well as copy of the judgment

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and decree dated 31-7-2014 passed by CivilJudge, Junior Division in Suit No. 268 of 2008 areplaced on record by the appellant. While decidingthe first suit, the trial court gave categoricalfinding that as per MoU signed between theparties, Respondent 1 hadaccepted sum of Rs2,00,000 and, therefore, the said suit was barredbyprinciplesofestoppel,waiverandacquiescence.Inacaselikethis,thoughrecourse to Order 7 Rule 11 CPC by theappellant was not appropriate, at the same time,the trial court may, after framing the issues, takeuptheissueswhichpertaintothemaintainability of the suit and decide the sameinthefirstinstance.Inthismannertheappellant, or for that matter the parties, can beabsolved of unnecessary agony of prolongedproceedings, in case the appellant is ultimatelyfoundtobecorrectinhissubmissions.”(emphasis supplied)

While holding that “recourse to Order 7 Rule 11” bythe appellant was not appropriate, this Court observedthat the Trial Court may, after framing the issues, takeup the issues which pertain to the maintainability of thesuit and decided them in the first instance. The Courtheld that this course of action would help the appellantavoid lengthy proceedings.

19. In more recent decision of this Court in ShaktiBhog Food Industries Ltd. v. Central Bank of Indiaand Another, three Judge bench of this Court,speaking though Justice AM Khanwilkar, was dealingwith the rejection of plaint under Order 7 Rule 11 bythe Trial Court, on the ground that it was barred bylimitation. The Court referred to the earlier decisionsincluding in Saleem Bhai v. State of Maharashtra,Church of Christ Charitable Trust (supra), andobserved that

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“18. It is clear that in order to consider Order 7Rule 11, the court has to look into the avermentsin the plaint and the same can be exercised by thetrial court at any stage of the suit. It is also clearthat the averments in the written statement areimmaterial and it is the duty of the Court toscrutinize the averments/pleas in the plaint. Inother words, what needs to be looked into indeciding such an application are the averments inthe plaint. At that stage, the pleas taken by thedefendant in the written statement are whollyirrelevant and the matter is to be decided only onthe plaint averment. These principles have beenreiterated in Raptakos Brett & Co. Ltd. v. GaneshProperty, (1998) 7 SCC 184 and Mayar (H.K.)Ltd. v. Vessel M.V. Fortune Express, (2006) 3SCC 100.”

8.A perusal of the above shows that the correct course of action when aplea of res judicata is raised, would be to frame res judicata as one of theissues in the suit and the said issue could even been considered as apreliminary issue for the purpose of expeditious disposal of the suit. Ld.counsel for the Plaintiffs has no objection to the same.

9.Thus, this Court is of the opinion that the following issue of resjudicata be framed in the suit CS No.2581/16 titled Ajay Pal Singh & Ors.

v. Rajinder Singh & Ors. as under:

“Whether the suit is barred by the principles of res judicata? OPD”

10.The trial in the suit is stated to have commenced. However, Ld.counsel for the Plaintiffs submits that he does not wish to lead any evidenceon this issue. Accordingly, this issue which has now been framed, shall bedecided by the Trial Court, as preliminary issue, in accordance with law.

11.Needless to add, the observations made in the judgment impugned

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before this Court dated 30[th]June, 2021, shall not come in the way of theadjudication of the preliminary issue and the same shall be decided on itsown merits.

12.The present petition, along with pending applications, is disposed ofin the above terms.

13.A copy of this order be sent to the Court of Ld. ADJ, KarkardoomaCourts, Delhi, where CS No.2581/16 titled Ajay Pal Singh & Ors. v.Rajinder Singh & Ors. is pending.

DECEMBER 9, 2021/dk/MS

PRATHIBA M. SINGHJUDGE