VAISHAGGARWAL PANCHAYATversusINDER KUMAR AND OTHERS

                     [2015] 9 S.C.R. 637


              VAISHAGGARWAL PANCHAYAT                                A
                                v.
                INDER KUMAR AND OTHERS
               (Civil Appeal No.2089 of 2015)
                      AUGUST25, 2015                                 B
      [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]

      Code of Civil Procedure, 1908 - s. 11 and Or. 7 r.11 (d) -
Rejection of plaint - Decree dated 19.9.1998 in favour of            C
respondent Nos. 1 and 2 - While pending execution,
objection filed by the appellant, claiming to be owner of the
property - Objection rejected - Thereafter, appellant filing
application for setting aside the judgment and decree dated
19. 9. 1998 and for stay of execution - Dismissed-Appellant
                                                                     0
further filing suit for declaring the judgment/decree dated
19.9.1998 and the subse·quent sale deed as null and void
with consequential relief ofpermanent injunction -Application
by respondent Nos. 1 and 2 under Or. 7 r. 11 CPC - Trial court
allowed the application-Appeal allowed by appellate court-           E
High Court allowing the revision held that the suit was barred
by principle of res judicata - On appeal, held: In the facts of
the case, the suit is not barred by the principle of res judicata
- It is not prima facie discernible from the plaint that it lacked
any cause of action or was barred by any law- There should           F
have been trial, with regard to all the issues framed.

    Allowing the appeal, the Court

     HELD: The allegations in the plaint are absolutely
different from the earlier objections in the application. G
There is an.asseveration of fraud and collusion. There
is an assertion that in the earlier suit a decree came to
be passed because of fraud and collusion. Even if the
                              637                                    H
638        SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A plaint is read keeping in mind the cleverness and
  deftness in drafting, yet it is not prima facie discernible
  from the plaint that it lacks any cause of action or is
  barred by any law. On a perusal of the plaint alone, it
  cannot be said that the suit is barred by the principle of
B resjudicata. In such a fact situation, the High Court has
  fallen into error by expressing the view that the plea of
  resjudicata was obvious from the plaint. In fact, a finding
  has been recorded by the High Court accepting the plea
  taken in the written statement. In the obtaining factual           ..
C matrix, there should have been a trial with regard to all
  the issues framed. [Para 17] [650-A-C]

         \I. Rajeshwari v. T. C. Saravanabava 2003 (6) Suppl.
     SCR 927: (2004) 1 SCC 551; Kamala and others v. K. T.
 D · Eshwara SA and others 2008 (7) SCR 39: (2008) 12 SCC
     661; Balasaria Construction (P) Ltd. v. Hanuman Seva Trust
     (2006) 5 SCC 658; Ba/asaria Construction (P) Ltd. v.
     Hanuman Seva Trust (2006) 5 SCC 662 - referred to.

 E                     Case Law Reference

       2003 (6) Suppl. SCR 927      referred to.         Para 11

       2008 (7) SCR 39              referred to.         Para 13
 F      (2006) 5 sec 658            referred to.         Para 14

        (2006) 5 sec 662            referred to.         Para 14

      CIVIL APPELLATE JURISDICTION: Civil Appeal No.
 G 2089 of 2015.

          From the Judgment and Order dated 06.09.2007 of the
      High Court of Punjab and Haryana at Chandigarh in C.R. No.
      3695 of 2006.

 H                              With
  VAISH AGGARWAL PANCHAYAT v. INDER KUMAR AND 639
                   OTHERS

     C.A. No. 2091 of2015                                           A

   Mahabir Singh, K.V. Vishwanathan, Preeti Singh, Gagan
Deep Sharma, Nikhil Jain, Sachin Jain, Dr. Kailash Chand,
Adeeba Mujahid, Balaji Srinivasan for the appearing parties.
                                                                    B
     The Judgment of the Court was delivered by

        DIPAK MISRA, J. The facts relevant to be stated for the
  adjudication of the present appeal are that the contesting
  respondent Nos. 1 and 2 - lnder Kumar and Yogendra Kumar,
  had filed a Civil Suit bearing No. 806 of 1993 against Krishan C
  Chand Gupta, respondent No. 5, and Ved Prakash, original
  respondent No. 3, for a decree of specific performance of
  agreement to sell in respect of land measuring 20 kanals with
  the consequential relief of permanent injunction. The suit was D
  decreed by the learned Civil Judge (SD), Kurukshetra by
  judgment and decree dated 19.9.1998 and no appeal was
  preferred against the same. Subsequently, the Respondent
  Nos. 1 and 2 sought execution of the decree and during its
  pendency, the Petitioner, VaishAggarwal Panchayat (society), E
  filed objections claiming that it is the owner of the suit land by
· way of gift deeds dated 5.3.1997 and 6.3.1997 executed by
  Ved Prakash and Banarsi Dass. The objections filed by the
  Society were rejected vide order dated 4.11.2000. Thereafter,
  the Society filed an application for setting aside the judgment F
  and decree dated 19.9.1998 and for stay of the execution,
  which was dismissed vide order dated 19.4.2001 and the
  appeal filed by the society against the same was also
  dismissed vide judgment dated 1.10.2004.
                                                                     G
        3. In the meantime, a suit for declaration bearing no. 333/
  03 of 2001 was filed by the Society for declaring the judgment
   and decree, dated 19.9.1998 passed in Civil Suit No. 806 of
   1993 by the Civil Judge (SD), Kurukshetra, and the subsequent
   sale deed dated 30.1.2001 and mutation No. 2450 as illegal, H
640         SUPREME COURT REPORTS                   [2015) 9 S.C.R.


A  nul.1 and void with the consequential relief of permanent
   injunction. The present respondent Nos. 1 and 2, who are
   defendants in the said suit, appeared before the trial court,
   entered contest and after issues were framed moved an
   application under Order 7 Rule 11, Civil Procedure Code
 B (CPC), for rejection of the plaint on the ground that the suit
   was barred by law. The trial Court, vide order dated 7 .12,2005
   allowed the application moved by the defendants therein.

          4. Aggrieved by the above said order, the Society
 C    preferred an appeal and the learned Additional District Judge
      allowed the appeal and the suit CS no. 333/03 of 2001 was
      ordered to be restored and tried.

          5. Being dissatisfied with the said order in appeal,
 o    respondent Nos. 1 and 2 approached the High Court of Punjab
      and Haryana in Civil Revision No. 3695 of 2006 and the High
      Court allowed the revision petition a~d set aside the order
      dated 15.6.2006 passed by the appellate court and
      accordingly restored the order of the trial court.
 E
        6. Before the High Court the Society contended that it was
   not a party to the Civil Suit No. 806of1993 and hence, it was
   not bound by the judgment and decree dated 19.9.1998 and,
   therefore, it has a right to challenge the same through a suit;
 F that mere filing of objections to.the execution petition, and an
   application for setting aside the earlier judgment and decree
   will not bar the suit, which is based on a different cause of
   action; and that as the civil suit was fixed for evidence of parties
   after framing of issues by the Court and a specific issue
 G regarding maintainability, which is a mixed question of fact
   and law, had been framed, the same could not have been
   summarily decided at that stage. The Society also contended
   that the judgment in the earlier suit was vitiated duEHo fraud
   and collusion.
 H
 VAISHAGGARWALPANCHAYATv. INDER KUMARAND 641
           OTHERS [DIPAK MISRA, J.]

       7. The High Court while rejecting the arguments of the         A
 Society came to observe that the learned Additional Distr.ict
 Judge took an erroneous view that since the issues had been
framed and the parties had been put to trial the question
regarding maintainability of the suit on the principle of res
judicata could not have been decided. Thereafter, the High            B
 Court referred to the factual scenario in chronology. The said
facts need to be stated. As per the High Court, admittedly, the
judgment and decree dated 19.09.1998 in Civil Suit No. 806
 of 1993 filed by Yogesh Kumar and lnder Kumar against
 Krishan Chand and Ved Pal seeking for specific performance           C
 of agreement to sell dated 02.11.1992 was decreed and no
 appeal against the said decree was filed; that during the
 pendency of the execution petition seeking ·execution of the
judgment and decree dated 19.09.1998, the respondent-
                                                                      0
 Society had filed objections through Vishav Pal Goel where
they had claimed to be the owners of the suit land by way of
 gift deeds dated 05.03.1997 and 06.03.1997 executed byVed
 Pal and Banarsi Dass which were dismissed vide order dated
 04.11.2000 and there was nothing on record to show that the          E
 said order was dislodged in appeal; that the respondent-
 Society filed an application for setting aside the judgment and
 decree dated 19.09.1998 and for stay of the execution, which
 was also dismissed vide order dated 18.04.2001 and appeal
filed by the plaintiff was also dismissed vide judgment dated         F
 01.10.2004; that all the pleas which had been raised by the
 plaintiff-respondent No. 1 before the High Court had already
 been agitated before the executing court and the appellate·
 court, which were rejected and the order of the appellate court
 dated 01.10.2004 had become final hence, binding upon the            G
 parties; that the plaintiff-Society could not permitted to re-open
 the matter again by way of the present suit as they had availed
 the remedy of agitating their grievance before the executing
 court; and that the plaintiff in the present suit had raised a
 similar controversy, which was also raised before the executing      H
642         ·SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A     court and also in its application for setting aside the judgment
      and decree, that was finally decided on merits and, therefore,
      suit was barred by the principle of resjudicata.

          8. On the aforesaid basis, the High Court finally held:
B
           "To my mind, Additional District Judge has committed
           an error by setting aside the order dated 7 .12.2005
           passed by additional Civil Judge (Senior Division),
           Kurukshetra by virtue of which a finding was recorded
c          that the suit is clearly barred by principles of res judicata
           and by principle of lis pendens laid down in Section 52
           of the Transfer of Property Act. I would also like to observe
           that it is settled principle of law that in consonance with
           the provisions of section 11 of the Code of Civil
D          Procedure, principle of res judicata equally applies to
           the interlocutory stage of the suit as well. Plaintiff-
           respondent cannot be permitted to raise similar
           controversy repeatedly on the same facts and
           circumstances and in fact, the present suit is an abuse
 E         of the process of the court and the plaint has rightly been
           rejected by the learned Additional Civil Judge (Senior
           Division), Kurukshetra. The rule of conclusiveness also
           comes into play in the instant case. Once the matter, which
           was the subject matter of lis to determine by the
 F         competent authority, no party, thereafter, can be permitted
           to re-open in the subsequent litigation. Such a rule was
           brought into statute book with a view to bring the litigation
           to an end so that the other side may not be put to
           harassment."
G
          9. We have heard Mr. Mahabir Singh, learned senior
      counsel for the appellant and Mr. K.V. Vishwanathan, learned
      senior counsel for the respondents.

H         10. We have referred to the decision of the High Court in
      extenso as it has used the words "admittedly" and scrutinized
    VAISH AGGARWAL PANCHAYAT v. INDER KUMAR AND 643
               OTHERS [DIPAK MISRA, J.]

in detail the factual scenario. It is submitted by Mr. Mahabir A
Singh, learned senior counsel appearing for the appellant that
the suit was filed seeking declaration of the judgment and
decree dated 19.9.1998 in civil suit no. 806/92 as null and
void being resultant of fraud and collusion. That apart, the
appellant was not a party to the earlier suit. It is urged by him B
that a written statement was filed on 23.7.2003 and on the
basis of the plaint and the written statement, the learned trial
Judge has framed number of issues and the issue number 1
relates to maintainability of the suit and issue number 9 pertains
to whether the suit of the plaintiff is barred by principles of C
resjudicata. As is evident, after the framing of the issues the
defendant filed the application under Order VI I Rule 11 C. P. C.
stating that the suit is n~t maintainable as barred by resjudicata.
The learned trial Judge, as is evident from the order passed
                                                                      0
by him, has taken note of the stand taken in the written
statement which has been regarded as the incorrect approach
by the learned appellate Judge. The High Court, as it appears,
has been guided by the finding recorded by the learned trial
Judge totally ignoring the factum that such a conclusion has E
been arrived at by taking into consideration the averments .
made in the plaint and the assertions put forth in the written
statement. The crux of the matter is whether, in the obtaining
factual matrix, the High Court should have applied the principle
of resjudicata. The cause of action for filing the suit is different. F
The grounds urged in the suit, as we find, are also quite
different. Even if the plaint is read keeping in mind the
cleverness and deftness in drafting, yet it is not prima facie
discernible from the plaint that it lacks any cause of action or
is barred by any law. On a perusal of the plaint alone it cannot G
be said that the suit is barred by the principle of resjudicata.

    · 11. In this context, we may profitably refer to the decision
in V. Rajeshwariv. T.C. Saravanabava 1 • In the said case, a
1
    (2004) 1 sec 551                                                 H
644            SUPREME COURT REPORTS                    [2015] 9 S.C.R.


A     two-Judge Bench while dealing with the concept of resjudicata
      has held:-

              "11. The rule of res judicata does not strike at the root of
              the jurisdiction of the court trying the subsequent suit. It
B             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.

              12. The plea of res judicata is founded on proof of certain
.c            facts and then by applying the law to the facts so found. It
              is, therefore, necessary that the foundation for the plea
              must be laid in the pleadings and then an issue must be
              framed and tried. A plea not properly raised in the
              pleadings or in issues atthe stage of the trial, would not
 o            be permitted to be raised for the first time at the stage of
              appeal [see (Raja) Jagadish Chandra Deo Dhabal Deb
              v. Gour Hari Mahato 2 , Medapati Surayya v. Tondapu
              Bala Gangadhara Ramakrishna Reddi3 and
              Katragadda China Anjaneyulu v. Kattaragadda China
 E            Ramayya 4 ]."

             After so stating, the Court further observed that:-

              " Not only the plea has to be taken, it has to be
              substantiated by producing the copies of the pleadings,
 F
              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
G             pleadings and the issues which may be taken as enough
              proof. But as pointed out in Syed Mohd. Salie Labbaiv.

      2   AIR 1936 PC 258 ·
      3
          AIR 1948 PC 3
 H    4
          AIR 1965AP 177
 VAISH AGGARWAL PANCHAYAT v. INDER KUMAR AND 645
            OTHERS [DIPAK MISRA, J.]

      Mohd. Hanifa 5 the basic method to decide the question A
      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 to what had been
      decided by the judgment which operates as resjudicata."
                                                                 B
     12. We are conscious that the observations reproduced
above were made in a different context but we have reproduced
the same to understand the impact of the plea of resjudicata
regard being had to the principle enshrined under Order VII
Rule11(d)oftheC.P.C.                                             C

    13. In this regard the pronouncement in Kamala and
others v. K. T. Eshwara SA and others6 would be seemly. In
the said case while dealing with the principle engrafted und~r
Order VII Rule 11(d) C.P.C., the Court has held thus:-           o
      "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 E
      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 F
      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 stages and under different provisions of the G
      Code. Order 7 Rule 11 of the Code is one, Order 14
      Rule 2 is another.

• (1976) 4sec 180
• c2008) 12 sec 661                                              H
646         SUPREME COURT REPORTS                    [2015] 9 S.C.R.


A          22. For the purpose of invoking Order? 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 issues shall not be the subject-matter of
B          an order under the said provision."

           After so stating, while proceeding to deal with the concept
      of resjudicata, the Court opined:-

c          "23. The principles of res judicata, when attrac::ted, 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 buralso
           other evidence and the order passed in the earlier suit
D          may be taken up either as 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
 E         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 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,
 F
           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 of fact or law.
           In the event, the jurisdiction of the court is found to be
G          barred by any law, meaning thereby, the subject-matter
           thereof, the application for rejection of plaint should be
           entertained."

       14. In this regard a reference to a three-Judge Bench
 H decision in Balasaria Construction (P) Ltd. v. Hanuman
     VAISH AGGARWAL PANCHAYAT v. INDER KUMAR AND 647
                OTHERS [DIPAK MISRA, J.]

Seva Trust7 and others would be frutiful. Be it noted the said A
case was .referred to a larger Bench vide Balasaria
Construction (P) Ltd. v. Hanuman Seva Trust!. The order
of reference reads as follows:-

         "4. This case was argued at length on 30-8-2005.               B
         Counsel appearing for the appellant had relied upon a
         judgment of this Court in N. V. Srinivasa Murthy v.
         Mariyamma 9 for the proposition that a plaint could be
         rejected if the suit is ex facie barred by limitation. As
         against this, counsel for the respondents relied upon a        C
         later judgment of this Court in Popat a.nd Kotecha
         Property v. State Bank of India Staff Assn. 10 in respect
         of the proposition that Order 7 Rule 11(d) was not
         applicable in a case where a question has to be decided
         on the basis of fact that the suit was barred by limitation.   D
         The point as to whether the words "barred by law"
         occurring in Order 7 Rule 11 (d) CPC would include the
         suit being "barred by limitation" was not specifically dealt
         with in either of these two judgments, cited above. But
         this point has been specifically dealt with by the different   E
         High Courts in Mohan Lal Sukhadia Universityv. Priya
         Soloman 11 , Khaja Quthubul/ah v. Govt. of A.P. 12 ,
          Vedapalli Suryanarayana v. Poosarla Venkata Sanker
         Suryanarayana 13 , Arjan Singh v. Union of lndia 14 wherein    F
         it has been held that the plaint under Order 7 Rule 11 (d) ·
1
     c2006) 5 sec 658
• (2006) 5 sec 662
• c2005) 5 sec 548
                                                                        G
10
     c2005) 1 sec 51 o
11   AIR 1999 Raj. 102
12
     AIR 1995AP43
13 (1980) 1 An LT 488

14
     AIR 1987 Del 165                                                   H
648             SUPREME COURT REPORTS                   [2015) 9 S.C.R.


A              cannot be rejected on the ground that it is barred by
               limitation. According to these judgments the suit has to
               be barred by a provision of law to come within the
               meaning of Order 7 Rule 11 CPC. A contrary view has
               been taken in Jugolinija Rajia Jugoslavija v. Fab
 B             Leathers Ltd. 15 , National Insurance Co. Ltd. v. Navrom
               Constantza 16 , J. Patel & Co. v. National Federation of
               Industrial Coop. Ltd. 17 and State Bank of India StaffAssn.
               v. Popat & Kotecha Property. The last judgment was the
               subject-matter of challenge in Popat and Kotecha
c              Property v. State Bank of India Staff Assn. This Court
               set aside the judgment and held in para 25 as under:

                "25. When the averments in the plaint are considered in
              · the background of the principles set out in Sopan
 D              Sukhdeo case 18 the inevitable conclusion is that the
               Division Bench was not right in holding that Order 7 Rule
               11 CPC was applicable to the facts of the case. Diverse
               claims were made and the Division Bench was wrong in
               proceeding with the assumption that only the non-
 E             execution of lease deed was the basic issue. Even if it is
               accepted that the other claims were relatable to it they
               have independent existence. Whether the collection of
               amounts by the respondent was for a period beyond 51
               years needs evidence to be adduced. It is not a case
 F·
               where the suit from statement in the plaint can be said to
               be barred by law. The statement in the plaint without
               addition or subtraction must show that it is barred by any
               law to attract application of Order 7 Rule 11. This is not
 G             so in the present case."
      15   AIR 1985 Cal 193
      1
      .•   AIR 1988 Cal 155
      17
           AIR 1996 Cal 253
 H •• (2004) 3 sec 137
      VAISH AGGARWAL PANCHAYAT v. INDER KUMAR AND 649
                 OTHERS [DIPAK MISRA, J.]

          5. Noticing the conflict between the various High Courts A
          and the apparent conflict of opinion expressed by this
          Court in N. V. Srinivasa Murthyv. Mariyamma and Popat
          and Kotecha Property v. State Bank of India StaffAssn.
          the Bench referred! the following question of law for
          consideration to a larger Bench:                         B

          "Whether the words 'barred by law' under Order 7 Rule
          11 (cf) would also include the ground that it is barred by
          the law of limitation.""
                                                                          c
            15. The three-Judge Bench opined that there was no
     conflict of opinion and thereafter the matter came back to the
     Division Bench for adjudication. The Div_ision Bench
     reproduced what has been stated by the three-Judge Bench.
     It is as under:- .                                             D
          "Before the three-Judge Bench, counsel for both the
          parties stated as follows:

          " ... It is not the case of either side that as an absolute
          proposition an application under Order 7 and Rule 11 (cf)       E
          can never be based 011 the law of limitation. Both sides
          state that the impugned judgment is based on the facts
          of this particular case and the question whether or not an
          application under Order 7 Rule 11(d) could be based on
                                                                          F
          law of limitation was not raised and has not been dealt
          with. Both sides further state that the decision in this case
          will depend upon the facts of this case."

          16. After so stating, the Division Bench opined that in the
     facts of the said case, the suit could not be dismissed as barred G
     by limitation without proper pleadings, framing of issue on
..   limitation and taking evidence, for question of limitation is a
     mixed question of fact and law and on ex-facie reading of the
     plaint it could not be held that the suit was barred by time.
                                                                       H
650          SUPREME COURT REPORTS                    [2015] 9 S.C.R.


A           17. Coming to the case at hand we find that the allegations
      in the plaint are absolutely different. There is an asseveration
      of fraud and collusion. There is an assertion that in the earlier
      suit a decree came to be passed because of fraud and
      collusion. In such a fact situation, in our considered opinion,
B     the High Court has fallen into error by expressing the view that
      the plea of resjudicata was obvious from the plaint. ln·fact, a
      finding has been recorded by the High Court accepting the
      plea taken in the written statement. In our view, in the obtaining
      factual matrix there should have been a trial with regard to all
C     the issues framed.

           18. Resultantly, the appeal is allowed and the order passed
      by the High Court is set aside and that of the appellate Judge
      is restored. The trial court is directed to proceed with the suit
 D    and dispose of the same within a period of six months hence.
      There shall be no order as to costs.

      Kalpana K. Tripathy                                 Appeal allowed.




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