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Thursday, August 27, 2015

whether the suit of the plaintiff is barred by principles of resjudicata. =after the framing of the issues the defendant filed the application under Order VII Rule 11 C.P.C. stating that the suit is not maintainable as barred by resjudicata=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= 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, 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 our view, in the obtaining factual matrix there should have been a trial with regard to all 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 and dispose of the same within a period of six months hence. There shall be no order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 2089 OF 2015
                  [Arising out of SLP(C) NO. 6919 OF 2008]



Vaish Aggarwal Panchayat                ... Appellant

                                   Versus

Inder Kumar and Others                  ... Respondents





                               J U D G M E N T


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  –  Inder  Kumar  and
Yogendra Kumar, had filed a Civil Suit  bearing  No.  806  of  1993  against
Krishan 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  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,
Vaish Aggarwal Panchayat (society), 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  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.

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, null 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 (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  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,  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 and set  aside
the order dated 15.6.2006 passed by the  appellate  court   and  accordingly
restored the order of the trial court.
6.    Before the High Court the Society contended that it was  not  a  party
to the Civil Suit No. 806 of 1993  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; 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  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
due to fraud and collusion.
7.    The High Court while rejecting the arguments of the  Society  came  to
observe that the learned Additional District 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  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 Inder Kumar  against
Krishan Chand and Ved Pal seeking for specific performance 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-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 by Ved Pal and Banarsi Dass which  were  dismissed  vide
order dated 04.11.2000 and there was nothing on  record  to  show  that  the
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 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 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 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:
“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  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
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 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 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.”

9.    We have heard Mr.  Mahabir  Singh,  learned  senior  counsel  for  the
appellant  and  Mr.  K.V.  Vishwanathan,  learned  senior  counsel  for  the
respondents.
10.   We have referred to the decision of the High Court in  extenso  as  it
has used the words  “admittedly”  and  scrutinized  in  detail  the  factual
scenario.  It is submitted by Mr.  Mahabir  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  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
resjudicata.  As is evident, after the framing of the issues  the  defendant
filed the application under Order VII Rule 11 C.P.C. stating that  the  suit
is not maintainable as barred by resjudicata.  The learned trial  Judge,  as
is evident from the order passed 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  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.   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 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.
Rajeshwari v. T.C. Saravanabava[1].  In the said  case,  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  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 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 at the stage of the trial, would not 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  Reddi[3]  and  Katragadda   China   Anjaneyulu   v.
Kattaragadda China 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, 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
taken as enough proof. But as pointed out in  Syed  Mohd.  Salie  Labbai  v.
Mohd. Hanifa[5] 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 to  what
had been decided by the judgment which operates as res judicata.”

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 Rule 11(d) of the C.P.C.
13.   In this regard the pronouncement in Kamala and others v. K.T.  Eshwara
SA and others[6] would be seemly.  In the said case while dealing  with  the
principle engrafted under Order VII Rule 11(d) C.P.C., the  Court  has  held
thus:-
“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 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  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 within the  realm  of  the  court  at
that stage. All issues shall not be the subject-matter  of  an  order  under
the said provision.”

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

14.   In this  regard  a  reference  to  a  three-Judge  Bench  decision  in
Balasaria Construction (P) Ltd. v. Hanuman Seva Trust[7]  and  others  would
be frutiful.   Be it noted the said case was  referred  to  a  larger  Bench
vide Balasaria Construction (P) Ltd. v. Hanuman Seva  Trust[8].   The  order
of reference reads as follows:-
“4. This case was argued at length on 30-8-2005. 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 later judgment of this Court in Popat and  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. 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
High Courts in Mohan Lal Sukhadia University  v.  Priya  Soloman[11],  Khaja
Quthubullah v.  Govt.  of  A.P.[12],  Vedapalli  Suryanarayana  v.  Poosarla
Venkata Sanker Suryanarayana[13], Arjan Singh v. Union of India[14]  wherein
it has been held that  the  plaint  under  Order  7  Rule  11(d)  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 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 Staff  Assn.  v.  Popat  &
Kotecha Property. The last judgment was the subject-matter of  challenge  in
Popat and Kotecha 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 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-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 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  so  in  the
present case.”

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

“Whether the words ‘barred by law’ under  Order  7  Rule  11(d)  would  also
include the ground that it is barred by the law of limitation.””

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 Division Bench reproduced what  has  been  stated  by  the  three-Judge
Bench.  It is as under:-
“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(d) can never be based on  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  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 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.
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, 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 our view,  in  the  obtaining  factual  matrix  there
should have been a trial with regard to all 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 and dispose of the same within  a
period of six months hence.  There shall be no order as to costs.

                                         .................................J.
[Dipak Misra]



                                         .................................J.
                                         [Prafulla C. Pant]
New Delhi
August 25, 2015

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 2091  OF 2015
                  [Arising out of SLP(C) NO. 28209 OF 2009]


Krishan Chand Gupta                     ... Appellant

                                   Versus

Yogesh Kumar and Anr.                   ... Respondents





                               J U D G M E N T


Dipak Misra, J.



      In this appeal, by special leave, the appellant calls in question  the
legal propriety of the order dated 3.11.2006 passed  in  C.R.  No.  2530  of
2006 by the learned Single Judge of the Punjab and  Haryana  High  Court  at
Chandigarh whereby he  has  declined  to  interfere  with  the  order  dated
20.01.2006 passed by the learned Additional District Judge,  Kurukshetra  in
Appeal No. 54 of 2005 whereby the learned Appellate Judge has  affirmed  the
order dated 7.12.2005 passed by the learned Additional Civil  Judge  (Senior
Division), Kurukshetra, whereby he has declined to  entertain  the  petition
preferred under Order IX Rule 13 of the Code of Civil Procedure for  setting
aside the judgment in civil suit no. 806/93.
2.    On a perusal of the order passed by the High Court, we find  that  the
trial court as well as the  appellate  court  have  analysed  the  facts  in
detail and declined to exercise the civil revisional jurisdiction.   In  our
considered opinion, there is no merit in  the  appeal  and  accordingly  the
same stands dismissed.  There shall be no order as to costs.


                                         .................................J.
[Dipak Misra]



                                         .................................J.
                                         [Prafulla C. Pant]
NEW DELHI
AUGUST  25, 2015

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[1]




        (2004) 1 SCC 551
[2]     AIR 1936 PC 258
[3]     AIR 1948 PC 3
[4]     AIR 1965 AP 177
[5]     (1976) 4 SCC 780
[6]     (2008) 12 SCC 661
[7]     (2006) 5 SCC 658
[8]     (2006) 5 SCC 662
[9]     (2005) 5 SCC 548
[10]   (2005) 7 SCC 510
[11]    AIR 1999 Raj. 102
[12]    AIR 1995 AP 43
[13]    (1980) 1 An LT 488
[14]    AIR 1987 Del 165
[15]    AIR 1985 Cal 193
[16]    AIR 1988 Cal 155
[17]    AIR 1996 Cal 253
[18]    (2004) 3 SCC 137

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