Supreme Court of India
SRIHARI HANUMANDAS TOTALAversusHEMANT VITHAL KAMAT & ORS.
- Citation
- 2021 INSC 387
- Decided
- 9 August 2021
- Disposal
- Leave Granted & Dismissed
- Bench
- D Y CHANDRACHUD
Holding
A plaint cannot be rejected under Order 7 Rule 11(d) on the ground of res judicata; the application must be decided only on the averments in the plaint.
Summary
The suit property, originally owned by the mother of the first respondent, was inherited by him and his brother, mortgaged to Karnataka State Finance Corporation (KSFC), and later auctioned to the third respondent, who obtained a sale deed and a decree for possession. The first respondent subsequently filed a suit challenging the validity of the sale deed, while the appellant (successor of the third respondent) moved an application under Order 7 Rule 11(d) of the CPC seeking rejection of the plaint on grounds of res judicata, non‑payment of court fee and lack of cause of action. The trial court and the Karnataka High Court dismissed the application, holding that a determination of res judicata requires examination of pleadings and judgments of the earlier suit, which is beyond the scope of Order 7 Rule 11(d). The Supreme Court affirmed this view, stating that the plaint does not disclose any fact that it is barred by law and that an Order 7 Rule 11(d) application must be decided solely on the averments in the plaint. The Court declined to opine on whether the suit is ultimately barred by res judicata, but allowed the appellant to raise that issue later, and dismissed the appeal.
Issues considered
- Whether an application under Order 7 Rule 11(d) CPC can be decided on the ground of res judicata by examining the pleadings, issues and judgment of the previous suit.
- Whether the plaint in OS No.138/2008 discloses that the suit is barred by any law, specifically res judicata.
- Whether the defence of res judicata may be considered at the stage of an Order 7 Rule 11(d) application.
- Whether non‑payment of court fee or non‑disclosure of cause of action constitute grounds for rejection of the plaint under Order 7 Rule 11.
Legislation cited
- Code of Civil Procedure, 1908s. Order 7 Rule 11, s. Section 11
Subjects
Order 7 Rule 11res judicataCivil Procedureplaint rejectionproperty disputemortgageauctionsale deedjurisdictionpreliminary issue
Judgment
[2021] 8 S.C.R. 387 387
SRIHARI HANUMANDAS TOTALA A
v.
HEMANT VITHAL KAMAT & ORS.
(Civil Appeal No. 4665 of 2021)
AUGUST 09, 2021 B
[DR JUSTICE DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Code of Civil Procedure 1908:
Or. 7 r. 11 – Rejection of plaint – Application u/Or. 7 r. 11 – C
When permissible – On facts, matter pertaining to property dispute
wherein property initially in the name of first respondent and his
brother, later mortgaged to State Finance Corporation as security
for repayment of loan – Auction of property for non-payment of
loan amount and property purchased by the third respondent and
thereafter, execution of sale deed of property in his favour – D
However, the first respondent and his brother did not hand over the
possession of the suit property – Suit for possession by the third
respondent and on the other hand suit by first respondent
challenging execution of sale deed by the State Finance Corporation
in favour of the third respondent – Held: On a reading of the plaint E
of the subsequent suit, it is evident that the first respondent did not
make an attempt to conceal the fact that a suit regarding the property
was pending before the civil court at that time – At the time of
institution of the subsequent suit by the first respondent, no decree
had been passed by the civil court in the earlier suit – Thus, the
issues raised in the earlier suit, at the time, had not been adjudicated F
upon – Thus, the subsequent plaint on the face of it, did not disclose
any fact that may lead to the conclusion that it deserves to be rejected
on the ground that it is barred by principles of res judicata – High
Court and the trial court justified in holding that to decide on the
arguments raised by the appellant, successor of third respondent,
the court would have to go beyond the averments in the plaint, and G
peruse the pleadings, and judgment and decree in the earlier suit –
Application u/Or. 7 r. 11 to be decided within the four corners of
the plaint – Trial court and High Court correct in rejecting the
application u/Or. 7 r. 11(d) – Plaint was not liable to be rejected
u/Or. 7 r. 11(d) – Order passed by the High Court upheld. H
387
388 SUPREME COURT REPORTS [2021] 8 S.C.R.
A Or. 7 r. 11 – Rejection of plaint – Application u/Or. 7 r. 11 –
Guiding principles to decide – Stated.
s. 11 – Res judicata – Rule of res judicata – Held: 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’
B – Thus, for adjudicating on the issue of res judicata it is necessary
that the same issue (that is raised in the suit) has been adjudicated
in the former suit.
Dismissing the appeal, the Court
HELD: 1.1 Order 7 Rule 11(d) of CPC provides that the
C plaint shall be 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
D statements in the plaint. Whether the suit is barred by any law
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. [Para 16][399-A-C]
1.2 Section 11 of the CPC enunciates the rule of res
E 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 is necessary that the
same issue (that is raised in the suit) has been adjudicated in the
former suit. It is necessary that the exercise taken up by this
F Court is referred to while adjudicating on res judicata, before
referring to res judicata as a ground for rejection of the plaint
under Order 7 Rule 11. [Para 17][399-D-F]
1.3 The guiding principles for deciding an application under
Order 7 Rule 11(d) are that to reject a plaint on the ground that
G the suit is barred by any law, only the averments in the plaint will
have to be referred to; that the defense made by the defendant in
the suit must not be considered while deciding the merits of the
application that to determine whether a suit is barred by res
judicata, it is necessary that (i) the ‘previous suit’ is decided, (ii)
H
SRIHARI HANUMANDAS TOTALA v. HEMANT VITHAL 389
KAMAT & ORS.
the issues in the subsequent suit were directly and substantially A
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; and (iv) that these issues were adjudicated and
finally decided by a court competent to try the subsequent suit;
and that since an adjudication of the plea of res judicata requires
B
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 the statements in the plaint will have to be perused.
[Para 20][405-G-H; 406-A-D]
2.1 In the instant case, a meaningful reading of the plaint
makes it abundantly clear that when the first respondent instituted C
the subsequent suit, he had been impleaded as the second
defendant to the earlier suit. The first respondent instituted the
subsequent suit, though he had knowledge of the earlier suit.
The plaint in the subsequent suit which was instituted by the first
respondent indicates that the he was aware of the mortgage D
executed in favour of KSFC, that KSFC had executed its charge
by selling the property for the recovery of its dues and that the
property had been sold on 8 August 2006 in favour of the
predecessor of the appellant. As a matter of fact, the plaint
contains an averment that there was every possibility that the
first respondent may suffer a decree for possession in earlier E
suit which “has forced” the first respondent to institute the suit
for challenging the legality of the sale deed. Given the fact that
an argument was raised in the previous suit regarding no challenge
having been made to the auction and the subsequent sale deed
executed by the KFSC, it is possible that the first respondent F
then decided to exercise his rights and filed the subsequent suit.
Be that as it may, on a reading of the plaint, it is evident that the
first respondent has not made an attempt to conceal the fact that
a suit regarding the property was pending before the civil court
at the time. It is also relevant to note that at the time of institution
of the subsequent suit by the first respondent, no decree had G
been passed by the civil court in the earlier suit. Thus, the issues
raised in the earlier suit, at the time, had not been adjudicated
upon. Therefore, the plaint, on the face of it, does not disclose
any fact that may lead to the conclusion that it deserves to be
rejected on the ground that it is barred by principles of res H
390 SUPREME COURT REPORTS [2021] 8 S.C.R.
A judicata. The High Court and the trial court were correct in their
approach in holding, that to decide on the arguments raised by
the appellant, the court would have to go beyond the averments
in the plaint, and peruse the pleadings, and judgment and decree
in the earlier suit. An application under Order 7 Rule 11 must be
decided within the four corners of the plaint. The trial court and
B
High Court were correct in rejecting the application under order
7 Rule 11(d). [Para 21][406-D-H; 407-A-C]
2.2 The plaint was not liable to be rejected under Order 7
Rule 11(d) and the findings of the trial court and the High Court
are upheld. However, no opinion is expressed on whether the
C subsequent suit is barred by the principles of res judicata. The
liberty is granted to the appellant, who claims as an assignee of
the bona fide purchaser of the suit property in an auction conducted
by KSFC, to raise an issue of the maintainability of the suit before
the Additional Civil Judge, who would consider whether a
D preliminary issue should be framed under Order XIV, and if so,
decide it within period of raising the preliminary issue. In any
event, the suit shall be finally adjudicated upon within the outer
limit of 31 March 2022. [Para 22][407-C-E]
2.3 The impugned judgment and order of the High Court is
E upheld. The application under Order 7 Rule 11 CPC is dismissed.
[Para 23][407-E-F]
Soumitra Kumar Sen v. Shyamal Kumar Sen (2018) 5
SCC 644; V. Rajeshwari v. T. C. Saravanabava (2004)
1 SCC 551 : [2003] 6 Suppl. SCR 927; Kamala & others
F v. KT 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; Shakti Bhog
Food Industries Ltd. v. Central Bank of India and
Another (2020) SCC OnLine SC 482; Saleem Bhai v.
G State of Maharashtra (2003) 1 SCC 557 : [2002] 5
Suppl. SCR491 – referred to.
Case Law Reference
(2018) 5 SCC 644 referred to Para 11
H [2003] 6 Suppl. SCR 927 referred to Para 17
SRIHARI HANUMANDAS TOTALA v. HEMANT VITHAL 391
KAMAT & ORS.
[2008] 7 SCR 39 referred to Para 18 A
[2012] 6 SCR 404 referred to Para 18
[2002] 5 Suppl. SCR 491 referred to Para 19
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4665
of 2021. B
From the Judgment and Order dated 18.01.2021 of the High Court
of Karnataka, Dharwad Bench in CRP. No.100089 of 2019.
Tarun Gupta, Santosh Pujari, Advs. for the Appellant.
Ms. Kiran Suri, Sr. Adv., S. J. Amith, Krishna Kumar, Dr. (Mrs.)
C
Vipin Gupta, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
1. Leave granted.
D
2. This appeal arises from a judgment dated 18 January 2021 of a
Single Judge at the Dharwad Bench of the High Court of Karnataka.
The revisional jurisdiction of the High Court under Section 115 of the
Code of Civil Procedure 1908 (“CPC”) was invoked for challenging an
order dated 1 July 2019 of the IInd Additional Senior Civil Judge and
Chief Judicial Magistrate, Belgaum on an application1 under Order 7 E
Rule 11 of the CPC.
3. Ms. Leela Vithal Kamat was the title holder of the suit property.
On her death on 16 May 1996, the property was mutated in the names
of her legal heirs – the first respondent and his brother. The first
respondent and his brother took a loan from the Karnataka State Finance F
Corporation (“KSFC”) and mortgaged the suit property as security for
repayment of the loan. Since the loan was not repaid, KSFC auctioned
the property. The third respondent, who is the predecessor-in-interest of
the appellant, furnished the highest bid of Rs. 15,00,000. A sale deed of
the suit property was executed in favour of the third respondent on 8 G
August 2006. Despite the execution of the sale deed, the first respondent
and his brother failed to handover the possession of the suit property and
as a consequence a suit for possession was filed by the third respondent
on 13 March 2007. On 20 December 2007, the first respondent, who
1
IA No. VII in OS 138/2008. H
392 SUPREME COURT REPORTS [2021] 8 S.C.R.
A was impleaded as the second defendant to the suit filed his written
statement raising inter alia the following defences:
(i) KSFC had no authority to put the suit property on sale;
(ii) The second defendant (first respondent herein) had not taken
any loan from KSFC nor had any transaction with it. He had
B not executed any documents offering the suit property as
security; and
(iii) The second defendant had no concern with the borrower.
Issues were framed in the suit, among them being the following:
C “4.Whether defendant No. 2 KSFC had no authority to put the
suit property for sale?”
4. On 12 November 2008, the first respondent instituted a suit
being OS No. 138/2008 challenging the sale deed dated 8 August 2006
executed by KSFC in favour of the third respondent primarily on the
D ground that KSFC had no authority to put the suit property for sale. He
sought a partition of the suit property and possession of his share. The
first respondent made the following averments in the plaint:
(i) The suit property was owned by the mother of the first
respondent. After her death, the suit property was inherited
E by the first respondent and his brother and the first respondent
has been in possession of this property from 1998 till the
filing of the suit;
(ii) The brother of the first respondent mortgaged the suit property
with KFSC without his consent and KFSC without
F investigating the title of the suit property and verifying the
underlying title documents, accepted the suit property as
security;
(iii) In 2004, the daughters of the first respondent’s brother had
filed a suit for partition and separate possession of the said
G suit property, where the first respondent was a party. There
was no mention made of a loan being sanctioned by KFSC
against the suit property;
(iv) The first respondent did not consent to the mortgage of the
suit property to KFSC and executed no documents for this
H purpose; and
SRIHARI HANUMANDAS TOTALA v. HEMANT VITHAL 393
KAMAT & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]
(v) The first respondent received knowledge of the sale deed A
executed by KFSC in favour of the third respondent only
when he appeared in the suit filed by the third respondent-
that is OS No. 103/2007. There is a possibility that the first
respondent could suffer a decree for possession in OS No.
103/2007. Thus, the first respondent filed this suit for partition
B
and possession to challenge the validity of the sale deed and
to claim his share in the suit property.
5. The following issues were framed by the Trial Court:
“1. Whether the description of suit property is correct
2. Whether plaintiff proves that he has purchased suit property C
and he acquired valid title as pleaded
3. Whether plaintiff is entitled for possession of suit property
4. Whether defendant No. 2 proves that K.S.F .C. had no
authority to put the suit property for sale D
5. Whether defendant No. 2 proves that there is no cause of
action for the suit
6. Whether plaintiff is entitled for decree
7. What decree or order”
E
6. By a judgment dated 26 February 2009, the Trial Judge decreed
the first suit (OS No. 103/2007) that was instituted by the third respondent
and directed the defendants (first respondent and his brother) in the suit
to hand over vacant and peaceful possession of the suit property to the
third respondent-plaintiff. The Trial Court concluded that:
F
(i) The contention of the first respondent-defendant that KFSC
did not have the right to auction the suit property cannot be
determined in the suit and must be challenged independently.
The first respondent took no action to challenge the auction
or the sale deed executed between KFSC and the plaintiff-
third respondent till arguments were being heard by the Trial G
Court, though evidence suggests that he had knowledge of
the auction. The first respondent acknowledged the receipt
of the letter from KFSC. Moreover, KSFC was impleaded
as the fourth defendant in O.S No. 369/2004- the suit that
H
394 SUPREME COURT REPORTS [2021] 8 S.C.R.
A was filed by his brother’s daughters and it was averred in
the plaint that the auction notice by KSFC was null and void;
(ii) The defendant- first respondent had filed suit in OS No. 138/
2008 for partition and separate possession, where one of the
reliefs claimed was that the sale deed executed between the
B plaintiff-third respondent and KFSC was not binding on the
first respondent. Though an application was filed to club O.S
No. 103/2007 and O.S No. 138/2008, it was not allowed.
Under these circumstances, the validity of the sale deed
cannot be determined in the present suit, particularly when
KFSC was not made a party to this suit. Thus, the validity of
C the sale deed and the auction would have to be considered in
the other suit filed by the first respondent (OS No. 138/2008);
and
(iii) On the date of the judgment of the court, the sale deed
executed by the plaintiff-third respondent and KFSC had not
D been set aside. Other than this challenge, there was no other
ground raised by the first respondent to challenge the claim
of possession of the plaintiff-third respondent. Based on this,
the sale deed is valid and title to the suit property is transferred
to the third respondent – plaintiff by virtue of the sale deed
E executed by KSFC. The third respondent had the right to
take possession of the property.
7. The first respondent appealed against the judgment of the Trial
Court before the High Court2. During the pendency of the appeal, the
third respondent filed an application under Section 10 of the CPC in OS
F No. 138/2008 for staying the suit proceedings till the disposal of the first
appeal from the judgment in OS No. 103/2007, on the ground that the
issues involved in the second suit were directly and substantially the
same as the issues in the previous suit. The Trial Judge by an order
dated 3 November 2012 held that the issues involved in the previous suit
for possession and the subsequent suit for declaration filed by the first
G respondent were directly and substantially the same. Hence the
application was allowed and the proceedings in the subsequent suit
instituted by the first respondent were stayed.
2
H RFA No. 3037/2008.
SRIHARI HANUMANDAS TOTALA v. HEMANT VITHAL 395
KAMAT & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]
8. The decree in the previous suit (OS No. 103/2007) was upheld A
by the High Court by a judgment dated 11 August 2017. The High Court
dismissed the appeal with the following observations:
(i) The plaintiff-third respondent states that both the defendants
(that is first respondent and his brother) had borrowed the
money. However, KSFC filed a memo in Miscellaneous B
Petition No. 114/2003 stating that the first respondent (second
defendant therein) was not a guarantor; and
(ii) The application filed for clubbing O.S No. 138/2008 and O.S
No. 103/2007 ought to have been allowed by the Trial Court.
Since the right of the first respondent cannot be considered C
in the present proceedings arising out of O.S No. 103/2007,
the third respondent is entitled to the possession of the suit
property as he is a bona fide auction purchaser.
9. Pursuant to the judgment of the High Court, the appellant who
has purchased the suit property from the third respondent, filed an D
application3 for rejection of plaint under Order 7 Rule 11 of the CPC on
the grounds of (i) non-payment of court fee; (ii) non-disclosure of cause
of action; and (iii) the suit being barred by res judicata. It was contended
that the suit instituted by the first respondent was barred by res judicata
as the grounds relating to the validity of the sale deed and the issue of
title were raised in the previous suit O.S No. 103/2007. The appellant E
urged that after the judgment of the Trial Court, which had been affirmed
by the High Court, the rights of the parties cannot be further adjudicated
and re-litigated upon.
10. The application under Order 7 Rule 11 was dismissed by the
Trial Judge on 1 July 2019 for the following reasons: F
(i) With respect to non-payment of the court fee, according to
Order 7 Rule 11(c), a plaint would only be rejected if the
plaint is written on a paper that is insufficiently stamped, and
the court requires the plaintiff to supply the requisite stamp
paper within a time fixed and despite such an order, the G
plaintiff fails to do so. In this case, no such order was passed
by the court;
3
IA No. VII dated 25 March 2019 in OS No. 138/2008.
H
396 SUPREME COURT REPORTS [2021] 8 S.C.R.
A (ii) The cause of action had been specifically pleaded by the
first respondent in paragraph 5 of the plaint; and
(iii) In order to reject a plaint for the suit being barred by any law
under Order 7 Rule 11(d), the court needs to be guided by
the averments in the plaint and not the defence taken. The
B grounds taken by the appellant – that the issues raised had
been decided by the decree of the Trial Court in OS No. 103/
2007 and affirmed on appeal by the High Court – were the
defence of the appellant. Thus, these cannot be taken into
account while rejecting a plaint under Order 7 Rule 11 of the
CPC. Moreover, the issue as to whether the suit is barred by
C res judicata cannot be decided in an Order 7 Rule 11
application but has to be decided in the suit.
11. The appellant filed a revision petition before the High Court
assailing the 1 July 2019 order of the Trial Court. The High Court dismissed
the appeal upholding the reasoning of the Trial Court on all the three
D grounds raised in the Order 7 Rule 11 application. On the ground of res
judicata, the High Court placed reliance on the decision of this Court in
Soumitra Kumar Sen v. Shyamal Kumar Sen4, and observed that the
learned Trial Judge correctly came to the conclusion that the application
filed under Order 7 Rule 11(d) on the ground of res judicata could not
E be decided merely by looking into the averments in the plaint. In the
view of the High Court, a plaint could be rejected under Order 7 Rule 11
only if it was not maintainable on the basis of the averments contained in
the plaint. In the present application, such a determination would require
the production of pleadings, the issues framed and the judgment in the
previous suit, to compare it with the present suit. This exercise, the High
F Court held, could not be undertaken merely by looking into the plaint
averments as held in Soumitra Kumar Sen (supra). Pursuant to the
dismissal of the revision petition by the High Court, the appellant has
approached this Court challenging the order of the High Court.
12. The rejection of the application under Order 7 Rule 11 of the
G CPC is the bone of the contention in this appeal. O.S No. 138 of 2008,
instituted by the first respondent, is a suit for declaration, partition,
possession, and for a consequential relief of injunction. Besides the first
respondent, who is the plaintiff in the said suit, KSFC (the second
respondent) is the first defendant. The third respondent is the second
4
H (2018) 5 SCC 644.
SRIHARI HANUMANDAS TOTALA v. HEMANT VITHAL 397
KAMAT & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]
defendant, the appellant is the fourth defendant. The third defendant to A
the suit is Dr Arvind Vithal Kamat, the brother of the first respondent.
The following reliefs have been sought in the suit :
“a] Declaring that the Sale-Deed dated: 08-08-2006 executed by
Defendant No. 1 in favor of the Defendant No. 2 with respect to
the suit property is null and void to the extent of half share of the B
Plaintiff and the same is not binding on the plaintiff.
b] Awarding half share in the suit property to the plaintiff and
putting him in actual possession of his half share by effecting
physical partition in the suit property.
c] Restraining the defendants from causing inference in the C
Plaintiffs actual possession of the suit property that may be given
to him by issue of perpetual injunction.
d] Entire costs of the suit may be awarded to the Plaintiff.”
13. The essential averments in the plaint are that the property in D
question was owned by the mother of the first respondent-plaintiff and
the third defendant. It has been averred that their father had predeceased
their mother, and that after the death of their mother on 26 May 1996,
the property was inherited by the first respondent and his brother in
equal shares. The third defendant is stated to have taken a loan from
KSFC for setting up a CT scan centre and to have mortgaged the suit E
property as security for that purpose. According to the first respondent,
his brother had no right to create a mortgage in respect of the suit property
which was held in joint ownership by both the first respondent and his
brother. It has been alleged that KSFC sold the property in executing its
charge on the property and entered into a registered sale deed on 8 F
August 2006 in favour of the second defendant (third respondent herein).
According to the first respondent, he had neither consented to the
mortgage nor signed any document. The first respondent pleaded that
he may suffer a decree for possession in O.S. 103 of 2007 instituted by
the auction purchaser and was accordingly seeking to assert his claim
and interest as a lawful owner in respect of half share in the suit property G
by filing O.S No. 138 of 2008.
14. The submission which has been urged on behalf of the appellant
is that the issue concerning title of the suit property stands adjudicated in
favour of the predecessor-in-interest of the appellant in the earlier suit
and the decree for possession was upheld by the High Court. Hence, H
398 SUPREME COURT REPORTS [2021] 8 S.C.R.
A another suit agitating the same issues and challenging the same sale
deed is not maintainable and is barred by the principles of res judicata.
Moreover, it has been submitted that the first respondent was arrayed
as the second defendant to the earlier suit and had raised a specific
defence in regard to the validity of the sale conducted by the KSFC in
favour of the third respondent. The submission is that the original sale
B
deed executed by KSFC is of 8 August 2006. The decree in the first suit
was of 26 February 2009 and though twelve years have passed since
the date of the decree, the appellant as a successor-in-interest of the
auction purchaser is not being allowed to enjoy the suit property.
15. Order 7 Rule 11 of the CPC reads as follows:
C
“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
G satisfied that the plaintiff was prevented by any cause of an
exceptional nature from 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.]”
H (emphasis supplied)
SRIHARI HANUMANDAS TOTALA v. HEMANT VITHAL 399
KAMAT & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]
16. 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.”
17. 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. Saravanabava5 F
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.
5
(2004) 1 SCC 551. H
400 SUPREME COURT REPORTS [2021] 8 S.C.R.
A 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. Maybe, in a given
case only copy of judgment in previous suit is filed in proof of plea
of res judicata and the judgment contains exhaustive or in requisite
details the statement of pleadings and the issues which may be
B
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 intheir
respective pleadings of their previous suit and then to find
C out as 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] placing on a par the plea of res judicata and the plea
D
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
E raises the bar to establish 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 16 Cal 173] pointed out
F
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)
18. 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 & othersv. KT
H
SRIHARI HANUMANDAS TOTALA v. HEMANT VITHAL 401
KAMAT & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]
Eshwara Sa6, the Trial Judge had allowed an application for rejection of A
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:
“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 B
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 sub-clauses thereof, a clear finding to that
effect must be arrived at. What would be relevant for invoking C
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 stages and under different
provisions of the Code. Order 7 Rule 11 of the Code is D
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 within the realm of the court at that stage. All E
issues shall not be the subject-matter of an order under
the said provision.”
(emphasis supplied)
The Court further held:
F
“23. The principles of res judicata, when attracted, would bar
another suit in view of Section 12 of the Code. The question
involving 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 a preliminary issue or at the final hearing, but, the G
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
6
(2008) 12 SCC 661. H
402 SUPREME COURT REPORTS [2021] 8 S.C.R.
A say that although the same discloses a cause of action, the same
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
B at that stage would not consider any evidence or enter into
a disputed question 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.”
C (emphasis supplied)
The above view has been consistently followed in a line of decisions
of this Court. In Church of Christ Charitable Trust & Educational
Charitable Society v. Ponniamman Educational Trust7, Justice P
Sathasivam (as the learned Chief Justice then was), speaking for a two
D judge Bench, observed that
“10. […] It is clear from the above that where the plaint does not
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
E 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
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
F defendants or at any time before the conclusion of the trial.
11. This position was explained by this Court in Saleem
Bhai v. 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)
G
“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
application thereunder are the averments in the plaint. The trial
court can exercise the power under Order 7 Rule 11 CPC at any
7
H (2012) 8 SCC 706.
SRIHARI HANUMANDAS TOTALA v. HEMANT VITHAL 403
KAMAT & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]
stage of the suit—before registering the plaint or after issuing A
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 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
B
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.”
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 C
that the averments in the written statement are immaterial and it
is the duty of the Court to scrutinize the averments/pleas in the
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 D
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 Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [(2006)
3 SCC 100].”
E
Similarly, in Soumitra Kumar Sen (supra), an application was
moved under Order 7 Rule 11 of the CPC claiming rejection of the plaint
on the ground that the suit was barred by res judicata. The Trial Judge
dismissed the application and the judgement of the Trial Court was
affirmed in revision by the High Court. Justice AK Sikri, while affirming
the judgment of the High Court held: F
“9. In the first instance, it can be seen that insofar as relief of
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 G
made by the appellant in their written statement are correct, such
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 H
404 SUPREME COURT REPORTS [2021] 8 S.C.R.
A 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, the defense 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
B
Suit No. 268 of 2008 which has been decided against him. He has
totally omitted 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,
C as per the established principles of law, such a defense projected
in the written statement cannot be looked into while deciding
application under Order 7 Rule 11 CPC.”
Referring to Kamala (supra), the Court further observed that
“12. … The appellant has mentioned about the earlier two cases
D 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
E 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
F 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
G 7 Rule 11 CPC by the appellant was not appropriate, at the
same time, the trial court may, after framing the issues,
take up the 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,
H
SRIHARI HANUMANDAS TOTALA v. HEMANT VITHAL 405
KAMAT & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]
in case the appellant is ultimately found to be correct in his A
submissions.”
(emphasis supplied)
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 B
of the suit and decided them in the first instance. The Court held that
this course of action would help the appellant avoid lengthy proceedings.
19. In a more recent decision of this Court in Shakti Bhog Food
Industries Ltd. v. Central Bank of India and Another8, a three
Judge bench of this Court, speaking though Justice AM Khanwilkar, C
was dealing with the rejection of a plaint under Order 7 Rule 11 by the
Trial Court, on the ground that it was barred by limitation. The Court
referred to the earlier decisions including in Saleem Bhai v. State of
Maharashtra9, Church of Christ Charitable Trust (supra), and
observed that D
“18. 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 E
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
averment. These principles have been reiterated in Raptakos Brett
& Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184 and Mayar F
(H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100.”
20. On a perusal of the above authorities, the guiding principles
for deciding an application under Order 7 Rule 11(d) can be summarized
as follows:
G
(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;
8
2020 SCC OnLine SC 482.
9
(2003) 1 SCC 557. H
406 SUPREME COURT REPORTS [2021] 8 S.C.R.
A (ii) The defense made by the defendant in the suit must not 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
B in the former suit; (iii) the former suit was between the same
parties or parties through whom they claim, litigating under
the same title; and (iv) that these issues were adjudicated
and finally decided by a court competent to try the subsequent
suit; and
C (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 the statements in the plaint will
have to be perused.
D 21. In the present case, a meaningful reading of the plaint makes
it abundantly clear that when the first respondent instituted the subsequent
suit, he had been impleaded as the second defendant to the earlier suit
(OS No. 103/2007) that was instituted on 13 March 2007. The first
respondent instituted the subsequent suit, OS 138/2008 though he had
knowledge of the earlier suit. The plaint in the subsequent suit which
E was instituted by the first respondent indicates that the he was aware of
the mortgage executed in favour of KSFC, that KSFC had executed its
charge by selling the property for the recovery of its dues and that the
property had been sold on 8 August 2006 in favour of the predecessor of
the appellant. As a matter of fact, the plaint contains an averment that
F there was every possibility that the first respondent may suffer a decree
for possession in OS 103/2007 which “has forced” the first respondent
to institute the suit for challenging the legality of the sale deed. Given
the fact that an argument was raised in the previous suit regarding no
challenge having been made to the auction and the subsequent sale deed
executed by the KFSC, it is possible that the first respondent then decided
G to exercise his rights and filed the subsequent suit. Be that as it may, on
a reading of the plaint, it is evident that the first respondent has not made
an attempt to conceal the fact that a suit regarding the property was
pending before the civil court at the time. It is also relevant to note that
at the time of institution of the suit (OS No. 138/2008) by the first
H respondent, no decree had been passed by the civil court in OS No. 103/
SRIHARI HANUMANDAS TOTALA v. HEMANT VITHAL 407
KAMAT & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]
2007. Thus, the issues raised in OS No. 103/2007, at the time, had not A
been adjudicated upon. Therefore, the plaint, on the face of it, does not
disclose any fact that may lead us to the conclusion that it deserves to be
rejected on the ground that it is barred by principles of res judicata.
The High Court and the Trial Court were correct in their approach in
holding, that to decide on the arguments raised by the appellant, the
B
court would have to go beyond the averments in the plaint, and peruse
the pleadings, and judgment and decree in OS No. 103/2007. An application
under Order 7 Rule 11 must be decided within the four corners of the
plaint. The Trial court and High Court were correct in rejecting the
application under order 7 Rule 11(d).
22. For the above reasons, we hold that the plaint was not liable C
to be rejected under Order 7 Rule 11(d) and affirm the findings of the
Trial Court and the High Court. We clarify however, that we have
expressed no opinion on whether the subsequent suit is barred by the
principles of res judicata. We grant liberty to the appellant, who claims
as an assignee of the bona fide purchaser of the suit property in an D
auction conducted by KSFC, to raise an issue of the maintainability of
the suit before the Additional Civil Judge, Belgaum in OS No. 138/2008.
The Additional Civil Judge, Belgaum shall consider whether a preliminary
issue should be framed under Order XIV, and if so, decide it within a
period of 3 months of raising the preliminary issue. In any event, the suit
shall be finally adjudicated upon within the outer limit of 31 March 2022. E
23. For the above reasons, we dismiss the appeal and affirm the
impugned judgment and order of the High Court dated 18 January 2021.
The application under Order 7 Rule 11 of the CPC shall stand dismissed.
There shall be no orders as to costs.
F
24. Pending application(s), if any, stand disposed of.
Nidhi Jain Appeal dismissed.
G
H
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