Supreme Court of India
PREM KISHORE & ORS.versusBRAHM PRAKASH & ORS
- Citation
- 2023 INSC 317
- Decided
- 29 March 2023
- Disposal
- Appeal(s) allowed
- Bench
- SUDHANSHU DHULIA
Holding
The earlier dismissal was for default under Order 17 Rule 2, not a decision on merits; therefore res judicata does not apply and the fresh eviction petition is not barred.
Summary
The original landlord filed an eviction petition under the Delhi Rent Control Act, but after the tenant denied the landlord‑tenant relationship, the landlord failed to produce evidence and the Rent Controller dismissed the petition without a finding on merits. After the landlord's death, his successors filed a fresh eviction petition, and the tenant invoked res judicata under Order 7 Rule 11(d) of the CPC, claiming the earlier dismissal barred the new suit. The Additional Rent Controller rejected the plea, but the Delhi High Court held that the earlier dismissal was a decision on merits under Order 17 Rule 3, thereby applying res judicata and rejecting the fresh petition. On appeal, the Supreme Court examined the scope of Order 17 Rules 2 and 3 and held that the earlier dismissal was for default under Rule 2, not a final decision on merits, so res judicata did not arise. Consequently, the Supreme Court set aside the High Court’s order, revived the eviction suit, and allowed the appeal.
Issues considered
- Whether the dismissal of the first eviction petition by the Rent Controller amounted to a decision on merits within the meaning of Order 17 Rule 3, thereby invoking res judicata under Section 11 of the CPC.
- Whether the second eviction petition filed by the successors is barred by the doctrine of res judicata.
- Whether an application under Order 7 Rule 11(d) CPC can be entertained to reject a plaint on the ground of res judicata when the prior dismissal was for default.
- Interpretation of Order 17 Rules 2 and 3 regarding the effect of a party's failure to appear or produce evidence on the finality of the decision.
Legislation cited
- Code of Civil Procedure, 1908s. s.11
- Delhi Rent Control Act, 1958s. s.14(1)(a)
Subjects
evictionres judicataOrder 7 Rule 11Order 17 Rule 2Order 17 Rule 3landlord-tenantDelhi Rent Control Actdefaultcivil procedure
Judgment
[2023] 4 S.C.R. 635 635
PREM KISHORE & ORS. A
v.
BRAHM PRAKASH & ORS.
(Civil Appeal No. 1948 of 2013)
MARCH 29, 2023 B
[SUDHANSHU DHULIA AND J. B. PARDIWALA, JJ.]
Code of Civil Procedure, 1908 – s. 11, Or. 7 R. 11, Or, 9 R. 8,
Or. 17 R. 3 – Delhi Rent Control Act, 1958 – s. 14(1)(a) – The
landlord (original plaintiff) filed an eviction petition against the
C
respondent (tenant) – The respondent filed the written statement
and denied the relationship of landlord and tenant – Thereafter, the
landlord failed to appear before the Rent Controller for the purpose
of establishing the relationship of landlord and tenant between the
parties – Rent controller proceeded to dismiss the eviction petition
and the same was not challenged by way of appeal – After the D
demise of the landlord, the appellant (successors in interest) filed
another eviction petition – The respondent raised the plea of res
judiciata u/s 11 and preferred an application under Or. 7 R. 11 for
rejection of plaint – Additional Rent Controller declined to reject
the plaint – Aggrieved by it, the respondent preferred a civil revision
E
petition before the High Court and the same was allowed by the
High Court by holding that the fresh eviction petition filed by the
appellant is hit by principles of res judicata as landlord was having
been afforded an opportunity to lead evidence and having failed to
produce any evidence in the Court, it has to be taken as a decision
on merits under Or.17 Rule 3 for the purpose of Section 11 of the F
Code – On appeal, held: High Court committed an error in taking
the view that the order passed by the Additional Rent Controller
could be said to be one passed in exercise of powers under Rule 3
of Or. 17 – The order did not purport to be one of dismissal for
default or on merits and it cannot be taken to mean other than what
G
it purported to be – Further, the order of the Rent Controller did not
purport to be a final disposal of the suit and what it did was that it
merely stopped the proceedings and it did nothing more and therefore
this is not final decision of the suit within the meaning of Or. 9 Rule
8 and Or. 17 Rule 3 resply of the CPC – Suit is revived.
H
635
636 SUPREME COURT REPORTS [2023] 4 S.C.R.
A Code of Civil Procedure, 1908 – When it would not be Res
judicata in a subsequent suit – Held: Where the former suit is dismissed
by the trial court for want of jurisdiction, or for default of the
plaintiff ’s appearance, or on the ground of non-joinder or mis-
joinder of parties or multifariousness, or on the ground that the
suit was badly framed, or on the ground of a technical mistake, or
B
for failure on the part of the plaintiff to produce probate or letter of
administration or succession certificate when the same is required
by law to entitle the plaintiff to a decree, or for failure to furnish
security for costs, or on the ground of improper valuation, or for
failure to pay additional court fee on a plaint which was
C undervalued, or for want of cause of action, or on the ground that
it is premature and the dismissal is confirmed in appeal (if any), the
decision, not being on the merits, would not be res judicata in a
subsequent suit.
Allowing the appeal, the Court
D HELD: 1. The guiding principles for deciding an application
under Order 7 Rule 11(d) of the CPC can be summarized as
follows:- (i) To reject a plaint on the ground that the suit is barred
by any law, only the averments in the plaint will have to be referred
to; (ii) The defence made by the defendant in the suit must not
E be considered while deciding the merits of the application; (iii)
To determine whether a suit is barred by res judicata, it is
necessary that (i) the ‘previous suit’ is decided, (ii) the issues in
the subsequent suit were directly and substantially in issue in
the former suit; (iii) the former suit was between the same parties
or parties through whom they claim, litigating under the same
F title; and (iv) that these issues were adjudicated and finally decided
by a court competent to try the subsequent suit; and (iv) Since an
adjudication of the plea of res judicata requires consideration of
the pleadings, issues and decision in the ‘previous suit’, such a
plea will be beyond the scope of Order 7 Rule 11 (d), where only
G the statements in the plaint will have to be perused. [Para 33][653-
F-H; 654-A-B]
2. The general principle of res judicata under Section 11 of
the CPC contain rules of conclusiveness of judgment, but for res
judicata to apply, the matter directly and substantially in issue in
H the subsequent suit must be the same matter which was directly
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS. 637
and substantially in issue in the former suit. Further, the suit A
should have been decided on merits and the decision should have
attained finality. Where the former suit is dismissed by the trial
court for want of jurisdiction, or for default of the plaintiff’s
appearance, or on the ground of non-joinder or mis-joinder of
parties or multifariousness, or on the ground that the suit was
B
badly framed, or on the ground of a technical mistake, or for failure
on the part of the plaintiff to produce probate or letter of
administration or succession certificate when the same is required
by law to entitle the plaintiff to a decree, or for failure to furnish
security for costs, or on the ground of improper valuation, or for
failure to pay additional court fee on a plaint which was C
undervalued, or for want of cause of action, or on the ground that
it is premature and the dismissal is confirmed in appeal (if any),
the decision, not being on the merits, would not be res judicata in
a subsequent suit. [Para 34][654-C-E]
3. In the case on hand, after the first eviction petition was D
instituted, the defendants therein filed their written statement
denying the relationship of landlord and tenant. After the written
statement came on record, no further evidence was led by the
plaintiffs. All that was on record was in the form of pleadings in
the plaint. The Additional Rent Controller took the view that
after the written statement came on record, it was the duty of the E
plaintiffs to establish or prove the landlord tenant relationship
and having failed to adduce any evidence, the suit was liable to
be dismissed and accordingly was dismissed. The High Court
interpreted or rather construed the order of the Additional Rent
Controller as one under Rule 3 of Order 17 and, therefore, took F
the view that the findings as regards the relationship of landlord
and tenant could be said to be on merits. The power conferred
on Courts under Rule 3 of Order 17 of the CPC to decide the
suit on the merits for the default of a party is a drastic power
which seriously restricts the remedy of the unsuccessful party
for redress. It has to be used only sparingly in exceptional cases. G
Physical presence without preparedness to co-operate for
anything connected with the progress of the case serves no useful
purpose in deciding the suit on the merits and it is worse than
absence. In any contingency, the discretion is always with the
H
638 SUPREME COURT REPORTS [2023] 4 S.C.R.
A Court to resort to Rule 2 or 3 respectively or to grant an
adjournment for deciding the suit in a regular way in spite of
default. Rules 2 and 3 respectively are only enabling provisions.
In order to decide the suit on the merits, the mere existence of
the conditions enumerated in Rule 3 alone will not be sufficient.
There must be some materials for a decision on the merits, even
B
though the materials may not be technically interpreted as
evidence. Sometimes the decision in such cases could be on the
basis of pleadings, documents and burden of proof. Anyhow, it is
appreciable for the Court to indicate by the judgment that the
decision is for default or on the merits. The only alternative of
C the Court in cases covered by Rule 3 or the explanation to Rule
2 is not to decide on the merits alone. If such an interpretation is
given, it will amount to an unjustified preference to one who
purposely absents than to one who presents but unable to proceed
with the case. ‘Appearance’ and ‘presence’ have well recognised
meanings. They imply presence in person or through pleader
D
properly authorised for the purpose of conducting the case. Rule
3 comes into play only when presence is to proceed with the
case, but default is committed in any one of the three ways
mentioned in Rule 2 or explanation to Rule 2 is extracted. Those
are cases in which some materials are there for the Court to
E decide the case on the merits and not cases where decision could
only be for default. That is clear from a combined reading of Rules
2 and 3 respectively and the explanation. In this case, none of
these conditions were present and the decision was evidently for
default. Rule 2 alone is attracted. The order did not purport to be
one of dismissal for default or on merits and it cannot be taken to
F
mean other than what it purported to be. It is in ordinary
phraseology; not legal phraseology and it cannot be divested of
its ordinary meaning. Its ordinary meaning is that the proceeding
was closed and the suit would not count as a pending one. The
later description would be redundant if the order was one of final
G disposal of the suit. The order did not purport to be a final disposal
of the suit. It merely stopped the proceedings. It did nothing
more. This is not final decision of the suit within the meaning of
Order 9 Rule 8 and Order 17 Rule 3 resply of the CPC. [Paras
50, 52, 55][665-E-G; 666-B-G; 667-F-H; 668-A]
H
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS. 639
V. Rajeshwari v. T.C. Saravanabava (2004) 1 SCC 551 A
: [2003] 6 Suppl. SCR 927; Kamala & others v. K.T.
Eshwara Sa (2008) 12 SCC 661 : [2008] 7 SCR 39;
Church of Christ Charitable Trust & Educational
Charitable Society v. Ponniamman Educational Trust
(2012) 8 SCC 706 : [2012] 6 SCR 404; Soumitra Kumar
B
Sen v. Shyamal Kumar Sen (2018) 5 SCC 644; Srihari
Hanumandas Totala v. Hemant Vithal Kamat (2021) 9
SCC 99; B. Janakiramaiah Chetty v. A.K. Parthasarthi
& Ors. (2003) 5 SCC 641 : [2003] 3 SCR 369; Prakash
Chander Manchanda v. Janki Manchanda (1986) 4
SCC 699 : [1987] 1 SCR 288 – relied on. C
Union of India v. Nanak Singh AIR 1968 SC 1370 :
[1968] 2 SCR 887; Satyadhyan Ghosal & Ors. v. Smt.
Deorajin Devi & Anr. AIR 1960 SC 941 : [1960] 3
SCR 590; Om Prakash Gupta v. Rattan Singh (1964) 1
SCR 259; Gulabchand Chhotalal Parikh v. State of D
Gujarat AIR 1965 SC 1153 : [1965] SCR 547 – referred
to.
Har Dayal v. Ram Ghulam AIR (31) 1944 Oudh 39;
Nila v. Punun AIR 1936 Lahore 385; Govindoss
Krishnadoss v. Rajah of Karvetnagar & Anr. AIR 1929 E
Madras 404; Prativadi Bhayankaram Pichamma v. K.
Sreeramulu AIR 1918 Mad 143 (FB); Mariannissa v.
Ramkalpa Gorsin ILR 34 Cal 235; Gopi Kishan v.
Ramu, AIR 1964 Raj 147; Shidramappa Irappa
Shivangi v. Basalingappa Kushnapa Kumbhar AIR 1943
Bom 321 : 1943 SCC Online Bom 16 : ILR 1944 Bom F
1 (FB); R. Ravindran v. M. Rajamanickam 2006 SCC
Online Mad 169 – referred to.
Case Law Reference
[1968] 2 SCR 887 referred to Para 22 G
[1960] 3 SCR 590 referred to Para 22
(1964) 1 SCR 259 referred to Para 22
[1965] SCR 547 referred to Para 22
[2003] 6 Suppl. SCR 927 relied on Para 26 H
640 SUPREME COURT REPORTS [2023] 4 S.C.R.
A [2008] 7 SCR 39 relied on Para 28
[2012] 6 SCR 404 relied on Para 33
[2003] 3 SCR 369 relied on Para 42
[1987] 1 SCR 288 relied on Para 47
B CIVIL APPELLATE JURISDICTION : Civil Appeal No.1948
of 2013.
From the Judgment and Order dated 04.05.2010 of the High Court
of Delhi at New Delhi in CRP No.1332 of 2002.
Mohan Pandey, M/s. Mukesh Kumar Singh and Co., Advs. for
C the Appellants.
Ajay Kumar Talesara, Jamshed Bey, Mudit Talesara, Parvinder
Chauhan, Advs. for the Respondents.
The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
D
This appeal, by special leave, is at the instance of the original
plaintiff (landlord) of an eviction petition filed under the provisions of the
Delhi Rent Control Act, 1958 (for short, ‘the Act 1958’) and is directed
against the judgment and decree passed by the High Court of Delhi
dated 04.05.2010 in the Civil Revision Petition No. 1332 of 2002 by
E which the High Court allowed the revision petition filed by the defendant
(tenant) thereby rejecting the plaint under the provisions of Order 7 Rule
11 of the Code of Civil Procedure (CPC) on the ground that the eviction
petition was barred by the principles of res judicata.
Factual Matrix
F 2. The facts giving rise to this appeal may be summaried as under.
3. It is the case of the appellants that the respondents herein
were inducted as tenants on 27.12.1987 by the father of the appellants
in respect of the property bearing House No. 163 (Old No. 143) situated
at Village Dhakka, Kingsway Camp, Delhi on monthly rent of Rs. 1050/
G - excluding the electricity, water and house tax. According to the
appellants, the tenancy was for residential purpose. It is also their case
that the rent was duly paid till February, 1993.
4. The father of the appellants served a demand notice dated
04.03.1996 on the respondents claiming the arrears of rent to the tune of
H
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS. 641
[J. B. PARDIWALA, J.]
Rs. 27,800/-. According to the appellants, the notice was duly served A
upon the respondents. However, the arrears of the rent was not cleared.
5. In such circumstances referred to above, the father of the
appellants filed an eviction petition on 21.05.1996 bearing Eviction Petition
No. 149 of 1996 under Section 14(1)(a) of the Act 1958.
6. In the said eviction petition, the respondents filed their written B
statement and denied the relationship of landlord and tenant.
7. It appears from the materials on record that after the written
statement was filed by the respondents denying the relationship of landlord
and the tenant, the plaintiffs failed to appear before the Rent Controller
for the purpose of establishing the relationship of landlord and tenant C
between the parties. The plaintiffs were granted numerous opportunities
to adduce evidence to establish the relationship of landlord and tenant.
The record reveals that the last such opportunity granted to the plaintiffs
to adduce evidence was on 09.09.1997 and again on 01.11.1997.
8. In such circumstances referred to above, the Rent Controller D
proceeded to pass the following order dated 27.01.1998:-
“27.1.1998
Present: Counsel for the Petitioner Sh. Chander Shekhar.
Cl. For Petitioner submits that no witness has come today nor E
summoned. No ground for further adjournment. Last opportunity
was granted to Petitioner on 9.9.97 & then on 1.11.97. Still the
Petitioner has not cared to call witness.
The PE is thus closed.
Since the relationship of Landlord tenant itself is under dispute F
and the petitioner has failed to adduce any evidence to establish
this fact, I am of the opinion that there is no point in fixing the
case further for RE. The petition is thus dismissed as the petitioner
has failed to establish his case. File be consigned.
Sd/- G
27.1.1998
R. Kiran Nath
RENT CONTROLLER: DELHI”
H
642 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 9. It is not in dispute that no appeal was preferred against the
aforesaid order dismissing the eviction petition. During the life time of
the original plaintiff, namely, Samey Singh, no fresh eviction petition under
Section 14(1)(a) of the Act 1958 was filed.
10. After the demise of Samey Singh (original plaintiff), the
B appellants herein claiming as successors in interest filed another eviction
petition registered as Eviction Petition No. 136 of 2001 against the
respondents herein under Section 14(1)(a) of the Act 1958 claiming inter
alia arrears of rent from 01.03.1993 till the date of issuance of notice
i.e. till 18.05.2001. A written statement was filed by the respondents
herein taking the stance that Samey Singh (the original plaintiff of the
C first eviction petition) i.e. the predecessor in interest of the appellants
herein had failed to prove the relationship of landlord and tenant between
the parties and in such circumstances, the same cannot be permitted to
be reopened in the second eviction petition as the same would be barred
by the principles of res judicata.
D 11. It appears that the respondents herein preferred an application
under the provisions of Order 7 Rule 11 of the CPC stating that the
Eviction Petition No. 136 of 2001 was barred by the principles of res
judicata and the plaint be rejected accordingly.
12. The Additional Rent Controller declined to reject the plaint
E vide order dated 23.07.2002. The Additional Rent Controller while
rejecting the application filed by the respondents for rejecting of the
plaint took the view that the second eviction petition filed under Section
14(1)(a) of the Act 1958 was based on a fresh notice dated 18.05.2001
on separate cause of action and that there was no finding on merits as
F regards the relationship of landlord and tenant between the parties in the
order dated 27.01.1998 referred to above. The Additional Rent Controller
in such circumstances took the view that the plea of res judicata was
not tenable in law. The application under Order 7 Rule 11(d) of the CPC
was accordingly rejected.
G 13. The respondents herein being dissatisfied with the order passed
by the Additional Rent Controller challenged the same by filing the Civil
Revision Petition No. 1332 of 2002 in the High Court of Delhi.
14. The High Court allowed the civil revision petition and rejected
the plaint of the Eviction Petition No. 136 of 2001 on the ground that the
same was hit by the principles of res judicata. The High Court while
H
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS. 643
[J. B. PARDIWALA, J.]
allowing the civil revision Petition filed by the respondents herein observed A
as under:-
“17. In the present case in hand, Sh. Samey Singh, the predecessor-
in-interest of the respondents/landlords failed to produce any
evidence to establish the relationship of landlord and tenant between
the parties in the first eviction petition filed by him under Section B
14(1)(a) of the Act. As the said decision was not taken in appeal
by any of the parties, the same attained finality. Having been
afforded an opportunity to lead evidence and having failed to
produce any evidence in the Court, it has to be taken as a decision
on merits under Order XVII Rule 3 of the Code of Civil Procedure
for the purpose of Section 11 of the Code. C
18. By filing a subsequent eviction petition, the respondents cannot
be permitted to do directly, what they could not do indirectly. Failure
to adduce evidence, resulting in dismissal of the claim of the
respondents for want of proof, is in reality, a decision on merits.
Just as if the petitioner therein had produced evidence, which the D
Court had considered as inadequate proof and had dismissed it
upon the said ground. Applicable to such a situation is the legal
maxim, ‘De non apparentibus et non existentibus eadem est
ratio’. It is a rule which applies to those things, which do not
appear, and to things which do not exist. So, for maintaining his E
right to claim arrears of rent, if Sh.Samey Singh was required to
prove that he was the landlord of the petitioner, but he failed to do
so, the Rent Controller had no option but to decide the issue against
him on account of non-production of evidence. In other words,
what does not appear, must be regarded as non-existent.
F
19. In these circumstances, the decision of the Rent Controller
dated 27.01.1998, has to be taken as a decision on the merits of the
matter. Merely because a subsequent cause of action has been pleaded
by the respondents in the second eviction petition by claiming arrears of
rent not only for the period for which the first eviction petition was filed,
but also for the subsequent period upto 18.05.2001, cannot be a ground G
to hold that the second eviction petition was maintainable. The relationship
of landlord and tenant between the parties was not established in the
earlier proceedings and the same point is directly and substantially in
issue in the second petition wherein the foundation to claim the arrears
of rent is the stand of the respondents (petitioners therein) that they are H
644 SUPREME COURT REPORTS [2023] 4 S.C.R.
A the landlords of the petitioner herein. The findings returned by the Rent
Controller in his order dated 27.01.1998 passed in the first petition have
to be held to be findings on merits and having been adjudicated
conclusively, are final in nature and act as a bar of res judicata on the
second eviction petition preferred by the respondents.
B 20. In view of the aforesaid facts and circumstances, this Court is
of the opinion that the impugned order dated 23.07.2002 is not in
accordance with law and cannot be sustained. The said order is therefore
set aside and quashed. The application filed by the petitioner under Order
VII Rule 11 of the CPC is allowed. It is held that the second eviction
petition filed by the respondents under Section 14(1)(a) of the Act is
C liable to be rejected being barred by the principles of res judicata.
Ordered accordingly.”
(Emphasis supplied)
15. Being dissatisfied with the aforesaid order passed by the High
D Court, the appellants, claiming to be the lawful owners and landlord of
the property in question, have come up before this Court by way of the
present appeal.
Submissions on behalf of the appellants
16. The learned counsel appearing on behalf of the appellants
E vehemently submitted that the High Court committed a serious error in
taking the view that the second Eviction Petition No. 136 of 2001 was
not maintainable in law as the same was hit by the principles of res
judicata. He would submit that the plaint could not have been rejected
under the provisions of Order 7 Rule 11(d) of the CPC as the issue of
F res judicata could be said to be a mixed question of law and fact. He
would submit that there is no averment in the plaint of the Eviction Petition
No. 136 of 2001 on the basis of which it could be said that the eviction
petition is barred by any provisions of law.
17. The learned counsel further submitted that the High Court
also committed an error in applying the principles of Order 17 Rule 3 of
G
the CPC as the first order passed by the Rent Controller dated 27.01.1998
in the first eviction petition was not on merits and, therefore, no finding
could be said to have been rendered as regards the relationship of landlord
and tenant which could be said to be binding between the parties in the
second eviction petition.
H
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS. 645
[J. B. PARDIWALA, J.]
18. In such circumstances referred to above, the learned counsel A
prays that there being merit in his appeal, the same may be allowed and
the impugned order be set aside.
Submissions on behalf of the respondent No. 1
19. The learned counsel appearing for the respondent No. 1, on
the other hand, vehemently opposed the present appeal by submitting B
that no error not to speak of any error of law could be said to have been
committed by the High Court in passing the impugned order.
20. He would submit that in the first round of litigation, late Samey
Singh (original plaintiff) was given sufficient time and opportunities by
the Rent Controller to establish the landlord tenant relationship. However, C
Samey Singh failed to appear before the court and also failed to lead any
evidence in that regard. In such circumstances, the Rent Controller was
justified in dismissing the eviction petition.
21. The learned counsel would submit that the High Court rightly
observed that the order dated 27.01.1998 passed by the Rent Controller D
in the first round of litigation could be said to be under the provisions of
Order 17 Rule 3 of the CPC and, if that be so, then the finding that the
original plaintiff i.e. Samey Singh was not able to establish the landlord
tenant relationship could be said to be on merits. He would submit that
once such finding has come on record, the appellants later in point of
time claiming through Samey Singh as successors in interest could not E
have preferred a fresh eviction petition on the very same grounds as the
same would be hit by the principles of res judicata. He would submit
that the High Court rightly rejected the plaint of the eviction petition
under the provisions of Order 7 Rule 11(d) of the CPC.
22. Learned counsel appearing for the respondent No. 1 in support F
of submissions has placed reliance on the following decisions:-
1. Union of India v. Nanak Singh, AIR 1968 SC 1370 :
(1968) 2 SCR 887
2. Satyadhyan Ghosal & Ors. v. Smt. Deorajin Devi &
Anr., AIR 1960 SC 941 : (1960) 3 SCR 590 G
3. Har Dayal v. Ram Ghulam, AIR (31) 1944 Oudh 39
4. Nila v. Punun, AIR 1936 Lahore 385
5. Govindoss Krishnadoss v. Rajah of Karvetnagar & Anr.,
AIR 1929 Madras 404 H
646 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 6. Om Prakash Gupta v. Rattan Singh, (1964) 1 SCR 259
7. Gulabchand Chhotalal Parikh v. State of Gujarat, AIR
1965 SC 1153
Analysis
B 23. Having heard the learned counsel for the parties and having
gone through the materials on record, the only question that falls for our
consideration is whether the High Court was justified in rejecting the
plaint of the eviction petition on the ground that the second eviction petition
was barred by the principles of res judicata.
C 24. Order 7 Rule 11 of the CPC reads as follows:-
“11. Rejection of plaint.— The plaint shall be rejected in the
following cases:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on
D
being required by the Court to correct the valuation within a time
to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is
returned upon paper insufficiently stamped, and the plaintiff, on
being required by the Court to supply the requisite stamp-paper
E within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to
be barred by any law;
(e) where it is not filed in duplicate;
F (f) where the plaintiff fails to comply with the provisions of rule 9:
Provided that the time fixed by the Court for the correction of the
valuation or supplying of the requisite stamp-paper shall not be
extended unless the Court, for reasons to be recorded, is satisfied
that the plaintiff was prevented by any cause of an exceptional
G nature for correcting the valuation or supplying the requisite stamp-
paper, as the case may be, within the time fixed by the Court and
that refusal to extend such time would cause grave injustice to
the plaintiff.”
(Emphasis supplied)
H
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS. 647
[J. B. PARDIWALA, J.]
25. Order 7 Rule 11(d) of CPC provides that the plaint shall be A
rejected “where the suit appears from the statement in the plaint to be
barred by any law”. Hence, in order to decide whether the suit is barred
by any law, it is the statement in the plaint which will have to be construed.
The Court while deciding such an application must have due regard only
to the statements in the plaint. Whether the suit is barred by any law
B
must be determined from the statements in the plaint and it is not open to
decide the issue on the basis of any other material including the written
statement in the case. Before proceeding to refer to precedents on the
interpretation of Order 7 Rule 11(d) CPC, we find it imperative to refer
to Section 11 of CPC which defines res judicata:-
“11. Res judicata.—No Court shall try any suit or issue in which C
the matter directly and substantially in issue has been directly and
substantially in issue in a former suit between the same parties, or
between parties under whom they or any of them claim, litigating
under the same title, in a Court competent to try such subsequent
suit or the suit in which such issue has been subsequently raised, D
and has been heard and finally decided by such Court.”
26. Section 11 of the CPC enunciates the rule of res judicata : a
court shall not try any suit or issue in which the matter that is directly in
issue has been directly or indirectly heard and decided in a ‘former suit’.
Therefore, for the purpose of adjudicating on the issue of res judicata it E
is necessary that the same issue (that is raised in the suit) has been
adjudicated in the former suit. It is necessary that we refer to the exercise
taken up by this Court while adjudicating on res judicata, before referring
to res judicata as a ground for rejection of the plaint under Order 7
Rule 11. Justice R C Lahoti (as the learned Chief Justice then was),
speaking for a two Judge bench in V. Rajeshwari v. T.C. Saravanabava, F
(2004) 1 SCC 551, discussed the plea of res judicata and the particulars
that would be required to prove the plea. The Court held that it is
necessary to refer to the copies of the pleadings, issues and the judgment
of the ‘former suit’ while adjudicating on the plea of res judicata:-
“11. The rule of res judicata does not strike at the root of the G
jurisdiction of the court trying the subsequent suit. It is a rule of
estoppel by judgment based on the public policy that there should
be a finality to litigation and no one should be vexed twice for the
same cause.
H
648 SUPREME COURT REPORTS [2023] 4 S.C.R.
A x x x x
13. Not only the plea has to be taken, it has to be substantiated by
producing the copies of the pleadings, issues and judgment in the
previous case. May be, in a given case only copy of judgment in
previous suit is filed in proof of plea of res judicata and the judgment
B contains exhaustive or in requisite details the statement of pleadings
and the issues which may be taken as enough 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 res judicata
is first to determine the case of the parties as put forward in their
respective pleadings of their previous suit and then to find out as
C to what had been decided by the judgment which operates as res
judicata. It is risky to speculate about the pleadings merely by a
summary of recitals of the allegations made in the pleadings
mentioned in the judgment. The Constitution Bench in Gurbux
Singh v. Bhooralal [AIR 1964 SC 1810 : (1964) 7 SCR 831]
D placing on a par the plea of res judicata and the plea of estoppel
under Order 2 Rule 2 of the Code of Civil Procedure, held that
proof of the plaint in the previous suit which is set to create the
bar, ought to be brought on record. The plea is basically founded
on the identity of the cause of action in the two suits and, therefore,
it is necessary for the defence which raises the bar to establish
E the cause of action in the previous suit. Such pleas cannot be left
to be determined by mere speculation or inferring by a process of
deduction what were the facts stated in the previous pleadings.
Their Lordships of the Privy Council in Kali Krishna Tagore v.
Secy. of State for India in Council [(1887-88) 15 IA 186 : ILR
F 16 Cal 173] pointed out that the plea of res judicata cannot be
determined without ascertaining what were the matters in issue
in the previous suit and what was heard and decided. Needless to
say, these can be found out only by looking into the pleadings, the
issues and the judgment in the previous suit.”
G (Emphasis supplied)
27. This Court in the case of V. Rajeshwari (supra) observed
that the rule of res judicata does not strike at the root of the jurisdiction
of the Court trying the subsequent suit. It is a rule of estoppal based on
the public policy of achieving finality to litigation. The plea of res judicata
H is founded on proof of certain facts and then applying the law to the
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS. 649
[J. B. PARDIWALA, J.]
facts so found. It is, therefore, necessary that the foundation for the A
belief must be laid in the pleadings and then the issue must be framed
and tried.
28. At this stage, it would be necessary to refer to the decisions
that particularly deal with the question whether res judicata can be the
basis or ground for rejection of the plaint. In Kamala & others v. K.T. B
Eshwara Sa, (2008) 12 SCC 661, the Trial Judge had allowed an
application for rejection of the plaint in a suit for partition and this was
affirmed by the High Court. Justice S.B. Sinha speaking for the two
Judge Bench examined the ambit of Order 7 Rule 11(d) of the CPC and
observed:-
C
“21. Order 7 Rule 11(d) of the Code has limited application. It
must be shown that the suit is barred under any law. Such a
conclusion must be drawn from the averments made in the plaint.
Different clauses in Order 7 Rule 11, in our opinion, should not be
mixed up. Whereas in a given case, an application for rejection of
the plaint may be filed on more than one ground specified in various D
sub-clauses thereof, a clear finding to that effect must be arrived
at. What would be relevant for invoking clause (d) of Order 7
Rule 11 of the Code are the averments made in the plaint. For
that purpose, there cannot be any addition or subtraction. Absence
of jurisdiction on the part of a court can be invoked at different E
stages and under different provisions of the Code. Order 7 Rule
11 of the Code is one, Order 14 Rule 2 is another.
22. For the purpose of invoking Order 7 Rule 11(d) of the Code,
no amount of evidence can be looked into. The issues on merit of
the matter which may arise between the parties would not be F
within the realm of the court at that stage. All issues shall not be
the subject-matter of an order under the said provision.”
(Emphasis supplied)
The Court further held:-
G
“23. The principles of res judicata, when attracted, would bar
another suit in view of Section 12 of the Code. The
questioninvolving a mixed question of law and fact which may
require not only examination of the plaint but also other evidence
and the order passed in the earlier suit may be taken up either as
H
650 SUPREME COURT REPORTS [2023] 4 S.C.R.
A a preliminary issue or at the final hearing, but, the said question
cannot be determined at that stage.
24. It is one thing to say that the averments made in the plaint on
their face discloses no cause of action, but it is another thing to
say that although the same discloses a cause of action, the same
B is barred by a law.
25. The decisions rendered by this Court as also by various High
Courts are not uniform in this behalf. But, then the broad principle
which can be culled out therefrom is that the court at that stage
would not consider any evidence or enter into a disputed question
C of fact or law. In the event, the jurisdiction of the court is found to
be barred by any law, meaning thereby, the subject-matter thereof,
the application for rejection of plaint should be entertained.”
(Emphasis supplied)
29. The above view has been consistently followed in a line of
D decisions of this Court. In Church of Christ Charitable Trust &
Educational Charitable Society v. Ponniamman Educational Trust,
(2012) 8 SCC 706, Justice P. Sathasivam (as the learned Chief Justice
then was), speaking for a two judge Bench, observed that:-
“10. […] It is clear from the above that where the plaint does not
E disclose a cause of action, the relief claimed is undervalued and
not corrected within the time allowed by the court, insufficiently
stamped and not rectified within the time fixed by the court, barred
by any law, failed to enclose the required copies and the plaintiff
fails to comply with the provisions of Rule 9, the court has no
F other option except to reject the same. A reading of the above
provision also makes it clear that power under Order 7 Rule 11 of
the Code can be exercised at any stage of the suit either before
registering the plaint or after the issuance of summons to the
defendants or at any time before the conclusion of the trial.
11. This position was explained by this Court in Saleem Bhai v.
G
State of Maharashtra [(2003) 1 SCC 557], in which while
considering Order 7 Rule 11 of the Code, it was held as under:
(SCC p. 560, para 9)
“9. A perusal of Order 7 Rule 11 CPC makes it clear that the
relevant facts which need to be looked into for deciding an
H
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS. 651
[J. B. PARDIWALA, J.]
application thereunder are the averments in the plaint. The A
trial court can exercise the power under Order 7 Rule 11 CPC
at any stage of the suit—before registering the plaint or after
issuing summons to the defendant at any time before the
conclusion of the trial. For the purposes of deciding an
application under clauses (a) and (d) of Rule 11 of Order 7
B
CPC, the averments in the plaint are germane; the pleas taken
by the defendant in the written statement would be wholly
irrelevant at that stage, therefore, a direction to file the written
statement without deciding the application under Order 7 Rule
11 CPC cannot but be procedural irregularity touching the
exercise of jurisdiction by the trial court.” C
It is clear that in order to consider Order 7 Rule 11, the court has
to look into the averments in the plaint and the same can be
exercised by the trial court at any stage of the suit. It is also clear
that the averments in the written statement are immaterial and it
is the duty of the Court to scrutinize the averments/pleas in the D
plaint. In other words, what needs to be looked into in deciding
such an application are the averments in the plaint. At that stage,
the pleas taken by the defendant in the written statement are
wholly irrelevant and the matter is to be decided only on the plaint
averments. These principles have been reiterated in Raptakos
Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] and E
Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [(2006) 3
SCC 100].”
30. Similarly, in Soumitra Kumar Sen v. Shyamal Kumar Sen,
(2018) 5 SCC 644, an application was moved under Order 7 Rule 11
of the CPC claiming rejection of the plaint on the ground that the suit F
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.K. Sikri, while affirming the judgment of the High
Court, held:-
“9. In the first instance, it can be seen that insofar as relief of G
permanent and mandatory injunction is concerned that is based
on a different cause of action. At the same time that kind of relief
can be considered by the trial court only if the plaintiff is able to
establish his locus standi to bring such a suit. If the averments
made by the appellant in their written statement are correct, such H
652 SUPREME COURT REPORTS [2023] 4 S.C.R.
A a suit may not be maintainable inasmuch as, as per the appellant it
has already been decided in the previous two suits that Respondent
1-plaintiff retired from the partnership firm much earlier, after
taking his share and it is the appellant (or appellant and Respondent
2) who are entitled to manage the affairs of M/s Sen Industries.
However, at this stage, as rightly pointed out by the High Court,
B
the defence in the written statement cannot be gone into. One has
to only look into the plaint for the purpose of deciding application
under Order 7 Rule 11 CPC. It is possible that in a cleverly drafted
plaint, the plaintiff has not given the details about Suit No. 268 of
2008 which has been decided against him. He has totally omitted
C to mention about Suit No. 103 of 1995, the judgment wherein has
attained finality. In that sense, the plaintiff-Respondent 1 may be
guilty of suppression and concealment, if the averments made by
the appellant are ultimately found to be correct. However, as per
the established principles of law, such a defence projected in the
written statement cannot be looked into while deciding application
D
under Order 7 Rule 11 CPC.”
(Emphasis supplied)
Referring to Kamala (supra), the Court further observed that:-
“12. … The appellant has mentioned about the earlier two cases
E which were filed by Respondent 1 and wherein he failed. These
are judicial records. The appellant can easily demonstrate the
correctness of his averments by filing certified copies of the
pleadings in the earlier two suits as well as copies of the judgments
passed by the courts in those proceedings. In fact, copies of the
F orders passed in judgement and decree dated 31-3-1997 passed
by the Civil Judge (Junior Division), copy of the judgment dated
31- 3- 1998 passed by the Civil Judge (Senior Division) upholding
the decree passed by the Civil Judge (Junior Division) as well as
copy of the judgment and decree dated 31-7-2014 passed by Civil
Judge, Junior Division in Suit No. 268 of 2008 are placed on record
G by the appellant. While deciding the first suit, the trial court gave
a categorical finding that as per MoU signed between the parties,
Respondent 1 had accepted a sum of Rs 2,00,000 and, therefore,
the said suit was barred by principles of estoppel, waiver and
acquiescence. In a case like this, though recourse to Order 7
H Rule 11 CPC by the appellant was not appropriate, at the same
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS. 653
[J. B. PARDIWALA, J.]
time, the trial court may, after framing the issues, take up the A
issues which pertain to the maintainability of the suit and decide
the same in the first instance. In this manner the appellant, or for
that matter the parties, can be absolved of unnecessary agony of
prolonged proceedings, in case the appellant is ultimately found to
be correct in his submissions.”
B
(Emphasis supplied)
31. This Court in the case of Soumitra Kumar Sen (supra) was
examining a case where the defendant had moved an application before
the Trial Court under Order 7 Rule 11 of CPC requesting the Court to
reject the plaint on the ground of res judicata. The Courts below had C
rejected such a prayer upon which the defendant had approached this
Court. This Court, referring to its various judgements on the point, upheld
such orders observing that if the averments made by the appellant in the
written statement are correct, the suit may not be maintainable. However,
at this stage, as rightly held by this Court, the defence in the written
statement cannot be gone into. One has to look into the plaint for the D
purpose of deciding application under Order 7 Rule 11 of the CPC.
32. While holding that “recourse to Order 7 Rule 11” by the
appellant was not appropriate, this Court observed that the Trial Court
may, after framing the issues, take up the issues which pertain to the
maintainability of the suit and decided them in the first instance. The E
Court held that this course of action would help the appellant avoid lengthy
proceedings.
33. On a perusal of the above authorities, the guiding principles
for deciding an application under Order 7 Rule 11(d) of the CPC can be
summarized as follows:- F
(i) To reject a plaint on the ground that the suit is barred by any
law, only the averments in the plaint will have to be referred to;
(ii) The defence made by the defendant in the suit must not be
considered while deciding the merits of the application;
G
(iii) To determine whether a suit is barred by res judicata, it is
necessary that (i) the ‘previous suit’ is decided, (ii) the issues in
the subsequent suit were directly and substantially in issue in the
former suit; (iii) the former suit was between the same parties or
parties through whom they claim, litigating under the same title;
H
654 SUPREME COURT REPORTS [2023] 4 S.C.R.
A and (iv) that these issues were adjudicated and finally decided by
a court competent to try the subsequent suit; and
(iv) Since an adjudication of the plea of res judicata requires
consideration of the pleadings, issues and decision in the ‘previous
suit’, such a plea will be beyond the scope of Order 7 Rule 11 (d),
B where only the statements in the plaint will have to be perused.
(See : Srihari HanumandasTotala v. Hemant Vithal Kamat,
(2021) 9 SCC 99)
34. The general principle of res judicata under Section 11 of the
CPC contain rules of conclusiveness of judgment, but for res judicata
C to apply, the matter directly and substantially in issue in the subsequent
suit must be the same matter which was directly and substantially in
issue in the former suit. Further, the suit should have been decided on
merits and the decision should have attained finality. Where the former
suit is dismissed by the trial court for want of jurisdiction, or for default
D of the plaintiff’s appearance, or on the ground of non-joinder or mis-
joinder of parties or multifariousness, or on the ground that the suit was
badly framed, or on the ground of a technical mistake, or for failure on
the part of the plaintiff to produce probate or letter of administration or
succession certificate when the same is required by law to entitle the
plaintiff to a decree, or for failure to furnish security for costs, or on the
E ground of improper valuation, or for failure to pay additional court fee on
a plaint which was undervalued, or for want of cause of action, or on the
ground that it is premature and the dismissal is confirmed in appeal (if
any), the decision, not being on the merits, would not be res judicata in
a subsequent suit.
F 35. In the present case, before examining the defendants’ ground
of res judicata to oppose the eviction petition, several aspects may
have to be looked into. Whether such an issue was substantively at issue
in the previous suit and similar such other questions may crop up. Powers
under Order 7 Rule 11 of CPC under such circumstances would not be
G available. The High Court therefore, committed an error in rejecting the
plaint.
36. The seminal question that we need to decide in the present
appeal is whether the first suit i.e. the Eviction Petition No. 149 of 1996
filed by late Samey Singh was dismissed on merits. To put it in other
words, whether the finding recorded by the Rent Controller while
H
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS. 655
[J. B. PARDIWALA, J.]
dismissing the Eviction Petition No. 149 of 1996 that the eviction petition A
deserves to be dismissed as the plaintiff Samey Singh had failed to
establish the relation of landlord and tenant between the parties could be
said to be on merits so as to render the second Eviction Petition No. 136
of 2001 not maintainable on the principles of res judicata.
37. The High Court took the view that the first suit i.e. Eviction B
Petition No. 149 of 1996 could be said to have been dismissed under the
provisions of Order 17 Order 3 of the CPC and, therefore, the finding
recorded therein as regards the relationship of landlord and tenant could
be said to be on merits and thus binding in the subsequent proceedings.
38. In the aforesaid context, we may look into the provisions of C
Order 17 Rules 2 and 3 respectively of the CPC which are as follows:-
“Order 17 Rules 2 and 3:
2. Procedure if parties fail to appear on day fixed.—Where,
on any day to which the hearing of the suit is adjourned, the parties
or any of them fail to appear, the Court may proceed to dispose of D
the suit in one of the modes directed in that behalf by Order IX or
make such other order as it thinks fit.
Explanation.—Where the evidence or a substantial portion of
the evidence of any party has already been recorded and such
party fails to appear on any day to which the hearing of the suit is E
adjourned, the Court may, in its discretion, proceed with the case
as if such party were present.
3. Court may proceed notwithstanding either party fails to
produce evidence, etc.— Where any party to a suit to whom
time has been granted fails to produce his evidence, or to cause F
the attendance of his witnesses, or to perform any other act
necessary to the further progress of the suit, for which time has
been allowed, the Court may, notwithstanding such default,—
(a) if the parties are present, proceed to decide the suit forthwith;
or G
(b) if the parties are, or any of them is, absent, proceed under rule
2.”
39. Order 17 Rule 2 of the CPC provides that where, on any day
to which the hearing of the suit is adjourned, the parties or any of them
H
656 SUPREME COURT REPORTS [2023] 4 S.C.R.
A fail to appear, the Court may proceed to dispose of the suit in one of the
modes directed in that behalf by order IX or make such other order as it
thinks fit.
40. The Explanation appended to Order 17 Rule 2 of the CPC
provides that where the evidence or a substantial portion of the evidence
B of any party has already been recorded and such party fails to appear on
any day to which the hearing of the suit is adjourned, the Court may, in
its discretion, proceed with the case as if such party was present.
41. Order 17 Rule 3 of the CPC, however, provides that where
any party to a suit to whom time has been granted fails to produce his
C evidence, or to cause the attendance of his witnesses, or to perform any
other act necessary to the further progress of the suit, for which time
has been allowed, the Court may, notwithstanding such default, (a) if the
parties are present, proceed to decide the suit forthwith, or (b) if the
parties are, or any of them is, absent, proceed under Rule 2.
D 42. The scope of Order 17 Rule 2 and Order 17 Rule 3 of the
CPC came up for consideration before this Court in the case of B.
Janakiramaiah Chetty v. A.K. Parthasarthi & Ors., (2003) 5 SCC
641, wherein Justice Arijit Pasayat speaking for the Bench held in paras
7 to 10 as under:-
E “7. In order to determine whether the remedy under Order 9 is
lost or not what is necessary to be seen is whether in the first
instance the Court had resorted to the Explanation of Rule 2.
8. The Explanation permits the court in its discretion to proceed
with a case where substantial portion of evidence of any party
F has already been recorded and such party fails to appear on any
day to which the hearing of the suit is adjourned. As the provision
itself shows, discretionary power given to the court is to be
exercised in a given circumstance. For application of the provision,
the court has to satisfy itself that:
(a) substantial portion of the evidence of any party has been already
G
recorded; (b) such party has failed to appear on any day; and (c)
the day is one to which the hearing of the suit is adjourned. Rule
2 permits the court to adopt any of the modes provided in Order 9
or to make such order as he thinks fit when on any day to which
the hearing of the suit is adjourned, the parties or any of them fail
H to appear. The Explanation is in the nature of an exception to the
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS. 657
[J. B. PARDIWALA, J.]
general power given under the rule, conferring discretion on the A
court to act under the specified circumstance i.e. where evidence
or a substantial portion of evidence of any party has been already
recorded and such party fails to appear on the date to which
hearing of the suit has been adjourned. If such is the factual
situation, the court may in its discretion deem as if such party was
B
present. Under Order 9 Rule 3 the court may make an order
directing that the suit be dismissed when neither party appears
when the suit is called on for hearing. There are other provisions
for dismissal of the suit contained in Rules 2, 6 and 8. We are
primarily concerned with a situation covered by Rule 6. The crucial
words in the Explanation are “proceed with the case”. Therefore, C
on the facts it has to be seen in each case as to whether the
Explanation was applied by the court or not.
9. In Rule 2, the expression used is “make such order as it thinks
fit”, as an alternative to adopting one of the modes directed in that
behalf by Order 9. Under Order 17 Rule 3(b), the only course D
open to the court is to proceed under Rule 2, when a party is
absent. Explanation thereto gives a discretion to the court to
proceed under Rule 3 even if a party is absent. But such a course
can be adopted only when the absentee party has already led
evidence or a substantial part thereof. If the position is not so, the
court has no option but to proceed as provided in Rule 2. Rules 2 E
and 3 operate in different and distinct sets of circumstances. Rule
2 applies when an adjournment has been generally granted and
not for any special purpose. On the other hand, Rule 3 operates
where the adjournment has been given for one of the purposes
mentioned in the rule. While Rule 2 speaks of disposal of the suit F
in one of the specified modes, Rule 3 empowers the court to decide
the suit forthwith. The basic distinction between the two rules,
however, is that in the former, any party has failed to appear at
the hearing, while in the latter the party though present has
committed any one or more of the enumerated defaults. Combined
effect of the Explanation to Rule 2 and Rule 3 is that a discretion G
has been conferred on the court. The power conferred is
permissive and not mandatory. The Explanation is in the nature of
a deeming provision, when under given circumstances, the
absentee party is deemed to be present.
H
658 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 10. The crucial expression in the Explanation is “where the evidence
or a substantial portion of the evidence of a party”. There is a
positive purpose in this legislative expression. It obviously means
that the evidence on record is sufficient to substantiate the
absentee party’s stand and for disposal of the suit. The absentee
party is deemed to be present for this obvious purpose. The court
B
while acting under the Explanation may proceed with the case if
that prima facie is the position. The court has to be satisfied on
the facts of each case about this requisite aspect. It would be also
imperative for the court to record its satisfaction in that
perspective. It cannot be said that the requirement of substantial
C portion of the evidence or the evidence having been led for applying
the Explanation is without any purpose. If the evidence on record
is sufficient for disposal of the suit, there is no need for adjourning
the suit or deferring the decision.”
(Emphasis supplied)
D 43. The Full Bench decision of the Madras High Court in Prativadi
Bhayankaram Pichamma v. K. Sreeramulu, AIR 1918 Mad 143
(FB) and the decision of the Calcutta High Court in Mariannissa v.
Ramkalpa Gorsin, ILR 34 Cal 235 fell for consideration of the Full
Bench of the Rajasthan High Court in Gopi Kishan v. Ramu, AIR
E 1964 Raj 147, and Bombay High Court in Shidramappa Irappa
Shivangi v. Basalingappa Kushnapa Kumbhar, AIR 1943 Bom 321
: 1943 SCC Online Bom 16 : ILR 1944 Bom 1 (FB).
44. The full Bench of the Rajasthan High Court in the case of
Gopi Kishan (supra) observed as under:-
F “8. In Prativadi Bhayankaram Pichamma v. Kamisetti
Sreeramulu, AIR 1918 Mad 143 (FB), the Full Bench of the
Madras High Court has held that Rules 2 and 3 of Order XVII of
the Code, of Civil Procedure are mutually exclusive. Where the
conditions of Rule 2 are fulfilled even if the circumstances
G envisaged by Rule 3 are existent and applicable, Rule 2 should be
applied. The reasons which persuaded the learned Judges to make
this preference are that when a party has failed both to appear as
well as to produce evidence or to perform an act for which time
was granted to it, it will be unjust in the party’s absence to assume
that its failure to produce evidence or to perform the act was
H unjustified he being absent and, therefore, unable to offer any
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS. 659
[J. B. PARDIWALA, J.]
explanation for its failure to produce evidence or to do acts in A
furtherance of the progress of the suit. Equity demanded that the
Court should proceed under Order XVII Rule 2 Civil Procedure
Code treating the case to be one of mere absence. Wallis, C. J., a
member of this Full Bench of the Madras High Court, however,
expressed a different view that Rules 2 and 3 were not mutually
B
exclusive. M. Agaiah v. Mohd. Abdul Kareem, AIR 1961 Andh
Pra 201 is a Full Bench decision of the Andhra Pradesh High
Court which has adopted the view taken by the Madras High
Court in Pra-tivadi’s case, AIR 1918 Mad 143(2) (FB). The Andhra
Pradesh High Court has not referred to the decisions of other
High Courts which have taken a contrary view. The High Court C
of Rangoon in Ma Hla Nyun v. Ma, Aye Myint, AIR 1937 Rang
437, the High Court of Nagpur in Bhioraj Jethmal v. Janardhan
Nagorao; AIR 1933 Nag 370 and Judicial Commissioner’s Court
of Bhopal in Hashmat Rai v. Lal Chand, AIR 1952 Bhopal 43
have adopted the same view as the High Court of Madras.
D
9. The other view taken by the Calcutta High Court in
Mariannissa v. Ramkalpa Gorsin, ILR 34 Cal 235 considered
the relationship between Section 157 and 158 of the Code of Civil
Procedure, 1882, which correspond to Order XVII rules 2 and 3
respectively of the Code of Civil Procedure of 1908 and expressed
the view that the existence of material was necessary for the E
application of Section 158 which corresponds to Rule 3 of Order
XVII. In this case issues were framed and after various
adjournments the case came up for hearing on 10th March, 1905.
The plaintiff had asked for and obtained process for witnesses
but as they did not appear on the date fixed for trial the plaintiff F
prayed for the issue of warrant of arrest for one of them. This
application was refused. The pleader for the plaintiff thereupon
intimated to the Court that he had no further instructions to appear
in the case and the subordinate Judge dismissed the suit, for want
of prosecution. When the plaintiff made an application to set aside
the order of dismissal under Section 102 (Order IX Rule 8) the G
defendant took a preliminary objection that the suit bad been
dismissed not under Section 102 but under Section 158 (Order
XVII Rule 3) and consequently the remedy of the plaintiff was by
way of review and not for restoration. The plaintiff eventually
‘appealed to the High Court. The learned Judges observed,— H
660 SUPREME COURT REPORTS [2023] 4 S.C.R.
A “It is obvious that the scope of Section 157 is quite distinct
from that of Section 158. Section 158 appears to contemplate
a case in which the Court has materials before it to enable it to
proceed to a decision of the suit ..............what Section 158
provides is, that the mere fact of a party making default in the
performance of what he was directed to would not lead to the
B
dismissal of the plaintiff’s suit, if he was the party in default, or
the decreeing of the claim against the defendant, if the defendant
was the person, who made the default; the words
‘notwithstanding su’ch default’ clearly imply that the Court is
to proceed with the disposal of the suit in spite of the default,
C upon such materials as are before it. Section 157, on the other
hand, speaks of the disposal of the suit, and undoubtedly includes
cases in which there might not be any materials before the
Court to enable it to pronounce a decision on the merits, for
instance, if the event contemplated in Sections 97, 98, 99 Clause
(a) and 102 happens, although, if the contingency mentioned in
D
Section 100, Clause (a) happens, there would be materials
before the Court, and a decision on the merits. ............”
(Emphasis supplied)
45. We may also look into the Full Bench decision of the Bombay
E High Court in the case of Shidramappa Irappa Shivangi (supra)
wherein the following was held:-
“The general provisions about appearances of parties in Order
III, Rule 1, are that a party can appear in person or by a recognized
agent or by a pleader appearing, applying or acting on his behalf.
F These are made subject to any other express provision of law.
Such an express provision is in Order V, Rule 1, where the mode
of appearance by a defendant is stated to be either (a) in person,
or (b) by a pleader duly instructed and able to answer all material
questions relating to the suit, or (c) by a pleader accompanied by
some person able to answer all such questions. The forms of
G summons given in forms Nos. 1 and 2 of appx. B to the first
schedule also contain the same instructions. Where, therefore,
the defendant does not appear in person and there is none else to
instruct his pleader, the only person through whom ha can be said
to appear is a pleader who must be duly instructed and able to
H answer all material questions. It follows, therefore, that if the
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS. 661
[J. B. PARDIWALA, J.]
pleader is present in Court on any day of hearing but has no A
instructions as to how to proceed with the case, there is no
appearance of the defendant. Whether a pleader is duly instructed
is a question of fact, but if he refuses to take part in the trial on the
ground that he has no instructions and then withdraws from the
case either after, or without making, an application for adjournment,
B
all further proceedings against the defendant become ex parte. If
the Court thereafter asks the plaintiff to lead evidence and then
passes a decree in his favour, it must be regarded as an ex parte
decree. The defendant would then be at liberty to apply to set it
aside under Order IX, Rule 13. …”
46. In Gopi Kishan (supra) the Full Bench of the Rajasthan High C
Court gave an illustration as to when Rule 2 or Rule 3 of Order 17 would
apply. We quote the relevant observations of the Full Bench as under:-
“18. Rule 2 confers discretion in the Court, in the event of a party
being absent, either to dispose of the suit in one of the modes
directed by Order 9 or to make such other order as it thinks fit. D
Rule 3, however, envisages a situation where a party to whom
time has been granted for the production of evidence or for the
performance of any other act necessary to the further progress
of the suit and such party fails to produce the evidence or to
perform the act for which time had been allowed the Court may. E
notwithstanding such default proceed to decide the suit forthwith.
When a party to whom time has been granted for the production
of evidence or for the performance of any other act also does not
appear it is clearly a case of double default. Not only the party
has failed to do that for which time was granted to it but has also
failed to appear. In our opinion this double default does not take F
away the case from the purview of Order XVII Rule 3. We are
unable to agree with the interpretation given in the Full Bench
Madras case that Rules 2 and 3 are mutually exclusive. There
can be cases as the one before us, where time was granted to a
party to produce evidence but the party not only failed to produce G
evidence but also absented itself and it cannot be said that Order
XVII Rule 3 cannot apply to such a case.
19. In a long series of decisions adopting the view of the Calcutta
High Court for diverse reasons it has been held that the existence
of material is necessary for deciding a suit under Order XVII H
662 SUPREME COURT REPORTS [2023] 4 S.C.R.
A Rule 3. The language of the statute does not expressly indicate
the existence of material as an essential condition for its
application. This interpretation has been influenced apparently by
the word ‘decide’ to mean decide on merits. In Ramkaran’s case,
ILR (1953) 3 Raj 798 the learned Judges of this Court felt
persuaded by the provisions of Order XX Rule 4 of the Code of
B
Civil Procedure to hold that the existence of material was necessary
and because only pleadings and issues were on record they opined
that the dismissal should be construed to be one under Order XVII
Rule 2. On the other hand in Amarsingh’s case, 1953 Raj LW
365, the learned Judges were of the view that where the plaintiff
C failed to discharge the burden placed on him in the suit, the logical
conclusion was that the suit should be dismissed whether material
existed or not. No decision has attempted to indicate the exact
kind of quantum of material which is requisite for the operation of
Order XVII Rule 3. The difficulty of such a task is easy to
appreciate. In the wide varieties of cases and complexities of
D
situation formulation of universal rules, is a task not easy of
attainment. The indications,” however, are as in Ramkaran’s case,
ILR (1953) 3 Raj 798 that the material may mean ‘evidence’ on
record. The obvious question which arises next is whether can
absence of evidence altogether exclude the applicability of Order
E XVII Rule 3? It is difficult to lay down such a, wide proposition.
The intention of Order XVII Rule 3 as has been noticed is that a
party seeks time to produce evidence or do something to further
the progress of a suit and makes default in doing either, a Court
may decide the suit forthwith. To our mind, it is too wide a
proposition to lay that in no case where evidence has not been led
F
Rule 3 would be inapplicable. The test should be whether the
Court before whom the suit is pending on the basis of material
before it is in a position to decide the suit forthwith, the default of
a party notwithstanding. The pleadings, of the parties and issues
arising therefrom may in some cases enable a Court to decide the
G suit forthwith. Suppose in a suit on a promissory note the execution
of which has not been denied by the defendant and the defendant
pleads want of consideration seeking time to produce evidence.
Time is allowed but he makes default in producing evidence. Can
the suit be not decided in view of the legal presumption contained
in Section 118 of the Negotiable Instruments Act? In a converse
H
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS. 663
[J. B. PARDIWALA, J.]
case the defendant denies execution and the plaintiff is granted A
time to prove execution and he makes default. Can the suit be not
decided on the ground of the default made by the plaintiff in
discharging the burden of proof placed on him? In the first
illustration it can perhaps be said that the promissory note execution
whereof has been admitted constitutes evidence and there is
B
material on record to attract the applicability of Rule 3. In the
second illustration; however, the execution not having been admitted
there is obviously no evidence. The plaintiff fails to discharge his
duty. Can we say that the suit should be disposed of in accordance
with Order IX as per Order XVII Rule 2? The answer is plainly
in the negative for the situations envisaged under Order IX are C
different than the one we have in the illustration. Can it be said
that the Court may pass such other order as it thinks fit as laid
down in Rule 2 of Order 17? Such an order can be no other than
to adjourn the case for plaintiff’s absence in a situation such as
this. Therefore, if the plaintiff fails to discharge the burden placed
D
on him in view of the pleadings and consequent issues despite the
opportunity afforded to him the case cannot be adjourned for his
evidence ad infinitum and the Court at some stage or the other
has to decide it for want of evidence. Even in a contested suit
issues are sometimes decided for want of evidence and so can
the whole suit. Therefore, in our opinion the existence of material E
does not necessarily mean existence of evidence. If a suit can be
decided despite the lack of evidence on the material before it
Order XVII Rule 3 can be said to govern the case. Material on
record need not be given a technical meaning and equated to
evidence. The circumstances of each case will regulate the
F
exercise of discretion vested in a Court. It is for the Court to
exercise its discretion and to indicate without ambiguity whether
it is exercising its powers under Order XVII Rule 3 or not. It is
correct that the application, of Rule 3 restricts the future remedies
of a defaulting party and is a stringent provision, and, therefore, it
should be applied with circumspect caution and judicial restraint, G
Ramkaran’s case, ILR (1953) 3 Raj 798 therefore, has to be read
with the aforesaid modification. No exception can, however, be
taken to the reasoning adopted in Amarsing’s case, 1953 Raj LW
365.”
(Emphasis supplied) H
664 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 47. Thus the Full Bench took the view that if the plaintiff fails to
discharge the burden placed on him in view of the pleadings and
consequent issues despite the opportunity afforded to him, the case may
not be adjourned for his evidence ad infinitum and the court must at
some stage or the other decide for want of evidence. The Full Bench
took the view that the existence of material would not necessarily mean
B
existence of evidence. If the suit can be decided despite the lack of
evidence on the material before it, then in such circumstances Order 17
Rule 3 of the CPC would govern the case.
48. The aforesaid dictum as laid by the Rajasthan High Court
appears to be in conflict with the decision of this Court in the case of
C Prakash Chander Manchanda v. Janki Manchanda, (1986) 4 SCC
699, wherein this Court observed as under:-
“6. …It is clear that in cases where a party is absent only course
is as mentioned in Order 17(3)(b) to proceed under Rule 2. It is
therefore clear that in absence of the defendant, the Court had no
D option but to proceed under Rule 2, Similarly the language of Rule
2 as now stands also clearly lays down that if any one of the
parties fail to appear, the Court has to proceed to dispose of the
suit in one of the modes directed under Order 9. The explanation
to Rule 2 gives a discretion to the Court to proceed under Rule 3
E even if a party is absent but that discretion is limited only in cases
where a party which is absent has led some evidence or has
examined substantial part of their evidence. It is therefore clear
that if on a date fixed, one of the parties remain absent and for
that party no evidence has been examined upto that date the Court
has no option but to proceed to dispose of the matter in accordance
F with Order 17 Rule 2 in any one of the modes prescribed under
Order 9 of the Code of Civil Procedure. It is therefore clear that
after this amendment in Order 17 Rules 2 and 3 of the Code of
Civil Procedure there remains no doubt and therefore there is no
possibility of any controversy. In this view of the matter it is clear
G that when in the present case on 30th October 1985 when the
case was called nobody was present for the defendant. It is also
clear that till that date the plaintiffs evidence has been recorded
but no evidence for defendant was recorded. The defendant was
only to begin on this date or an earlier date when the case was
adjourned. It is therefore clear that upto the date i.e. 30th October,
H 1985 when the trial court closed the case of defendant there was
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS. 665
[J. B. PARDIWALA, J.]
no evidence on record on behalf of the defendant. In this view of A
the matter therefore the explanation to Order 17 Rule 2 was not
applicable at all. Apparently when the defendant was absent Order
17 Rule 2 only permitted the Court to proceed to dispose of the
matter in any one of the modes provided under Order 9.
7. It is also clear that Order 17 Rule 3 as it stands was not applicable B
to the facts of this case as admittedly on the date when the
evidence of defendant was closed nobody appeared for the
defendant. In this view of the matter it could not’ be disputed that
the Court when proceeded to dispose of the suit on merits had
committed an error. Unfortunately even on the review application,
the learned trial Court went on in the controversy about Order 17 C
Rules 2 and 3 which existed before the amendment and rejected
the review application and on appeal, the High Court also
unfortunately dismissed the appeal in limine by one word.”
(Emphasis supplied)
D
49. Thus the dictum as laid by this Court in Prakash Chander
Manchanda (supra) is that it will be within the discretion of the Court to
proceed under Rule 3 even in the absence of evidence but such discretion
is limited only in cases where a party which is opposing has led some
evidence or has examined substantial part.
E
50. Let us apply the aforesaid dictum as laid by this Court to the
facts of the present case. In the case on hand, after the first eviction
petition was instituted, the defendants therein filed their written statement
denying the relationship of landlord and tenant. After the written statement
came on record, no further evidence was led by the plaintiffs. All that
was on record was in the form of pleadings in the plaint. The Additional F
Rent Controller took the view that after the written statement came on
record, it was the duty of the plaintiffs to establish or prove the landlord
tenant relationship and having failed to adduce any evidence, the suit
was liable to be dismissed and accordingly was dismissed. The High
Court interpreted or rather construed the order of the Additional Rent G
Controller as one under Rule 3 of Order 17 and, therefore, took the view
that the findings as regards the relationship of landlord and tenant could
be said to be on merits.
51. We are afraid, the High Court committed an error in taking
the view that the order passed by the Additional Rent Controller could
H
666 SUPREME COURT REPORTS [2023] 4 S.C.R.
A be said to be one passed in exercise of powers under Rule 3 of Order 17
of the CPC.
52. The power conferred on Courts under Rule 3 of Order 17 of
the CPC to decide the suit on the merits for the default of a party is a
drastic power which seriously restricts the remedy of the unsuccessful
B party for redress. It has to be used only sparingly in exceptional cases.
Physical presence without preparedness to co-operate for anything
connected with the progress of the case serves no useful purpose in
deciding the suit on the merits and it is worse than absence. In any
contingency, the discretion is always with the Court to resort to Rule 2
or 3 respectively or to grant an adjournment for deciding the suit in a
C regular way in spite of default. Rules 2 and 3 respectively are only enabling
provisions. In order to decide the suit on the merits, the mere existence
of the conditions enumerated in Rule 3 alone will not be sufficient. There
must be some materials for a decision on the merits, even though the
materials may not be technically interpreted as evidence. Sometimes
D the decision in such cases could be on the basis of pleadings, documents
and burden of proof. Anyhow, it is appreciable for the Court to indicate
by the judgment that the decision is for default or on the merits. The only
alternative of the Court in cases covered by Rule 3 or the explanation to
Rule 2 is not to decide on the merits alone. If such an interpretation is
given, it will amount to an unjustified preference to one who purposely
E absents than to one who presents but unable to proceed with the case.
‘Appearance’ and ‘presence’ have well recognised meanings. They imply
presence in person or through pleader properly authorised for the purpose
of conducting the case. Rule 3 comes into play only when presence is to
proceed with the case, but default is committed in any one of the three
F ways mentioned in Rule 2 or explanation to Rule 2 is extracted. Those
are cases in which some materials are there for the Court to decide the
case on the merits and not cases where decision could only be for default.
That is clear from a combined reading of Rules 2 and 3 respectively and
the explanation. In this case, none of these conditions were present and
the decision was evidently for default. Rule 2 alone is attracted. (see :
G R. Ravindran v. M. Rajamanickam, 2006 SCC Online Mad 169)
53. The order passed by the Rent Comptroller dated 27.01.1998
referred to in para 8 of this judgment, has a different angle too. Let us
once again read the order passed by the Rent Controller closely. The
order is in two parts. In the first part, the Rent Controller says that the
H
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS. 667
[J. B. PARDIWALA, J.]
counsel for the plaintiff is present. Then, he proceeds to observe that the A
counsel for the plaintiff made a statement that no witness has come
today nor they were summoned. The Rent Controller, further, notes that
on none of the grounds further adjournment has been prayed for.
Thereafter, he states that the last opportunity was granted to the plaintiff
on 09.09.1997 and thereafter, on 01.11.1997. However, the plaintiff did
B
not care to call his witnesses. In such circumstances, the Rent Controller
closed the eviction petition proceedings. The exact words used by the
Rent Controller in the order dated 27.01.1998 are: “the PE is thus
closed.” In the second part of the order, the Rent Controller, thereafter,
proceeds to observe that since the relationship of Landlord-Tenant is
under dispute and the plaintiff has failed to produce any evidence to C
establish such relationship, he did not find any good reason to fix the
case further for recording of evidence. In such circumstances, he
dismissed the eviction petition, as the plaintiff could be said to have failed
to establish his case. In the last, he observed that the file be consigned.
54. At the stage of hearing of the case, Order 17 of the CPC, D
applied. Under that Order on a date of adjourned hearing, if a party was
absent, the Court either would act under Order 9 or otherwise as it
thought fit; or if a party was present but it did not produce evidence, it
would proceed to decide the suit forthwith without benefit of evidence.
This last thing tantamounts that the Court was to say whether the suit
was or was not proved, either wholly or in part and to pass the decree E
accordingly.
55. The moot question is whether the eviction petition was
dismissed for default which dismissal would certainly bar a fresh suit if
instituted on the same cause of action. The words, which we have quoted
above, certainly do not mean dismissal either on merits or on default. It F
was argued before us that the order should only be taken to mean what
an order under Order 17 can possibly be and nothing else. We are not
impressed by such submission. The order did not purport to be one of
dismissal for default or on merits and it cannot be taken to mean other
than what it purported to be. It is in ordinary phraseology; not legal G
phraseology and it cannot be divested of its ordinary meaning. Its ordinary
meaning is that the proceeding was closed and the suit would not count
as a pending one. The later description would be redundant if the order
was one of final disposal of the suit. The order did not purport to be a
final disposal of the suit. It merely stopped the proceedings. It did nothing
H
668 SUPREME COURT REPORTS [2023] 4 S.C.R.
A more. This is not final decision of the suit within the meaning of Order 9
Rule 8 and Order 17 Rule 3 resply of the CPC.
56. In the result, the appeal succeeds and is hereby allowed. The
impugned judgement and decree is, therefore, set aside. Needless to
add two things. First, we have not expressed any opinion on rival
B contentions regarding the applicability or otherwise of the principle of
res judicata or for that matter any other contentious issue in the pending
suit. Secondly, nothing stated in this judgment will prevent the concerned
defendants from requesting the Court to decide such an issue as a
preliminary issue. Such an application would obviously be decided on its
merits about which also we expressed no opinion. The suit is revived.
C
57. There shall be no order as to costs.
58. Pending application, if any, also stands disposed of.
Ankit Gyan Appeal allowed.
D (Assisted by : Shivesh Raghuvanshi and Mahendra Yadav, LCRAs)
E
F
G
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "eviction"Sign in to search