PREM KISHORE & ORS. versus BRAHM PRAKASH & ORS

Citation: [2023] 4 S.C.R. 635 · Decided: 29-03-2023 · Supreme Court of India · Bench: SUDHANSHU DHULIA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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   [2023] 4 S.C.R. 635
635
PREM KISHORE & ORS.
v.
BRAHM PRAKASH & ORS.
(Civil Appeal No. 1948 of 2013)
MARCH 29, 2023
[SUDHANSHU DHULIA AND J. B. PARDIWALA, JJ.]
Code of Civil Procedure, 1908 – s. 11, Or. 7 R. 11, Or, 9 R. 8,
Or. 17 R. 3 – Delhi Rent Control Act, 1958 – s. 14(1)(a) – The
landlord (original plaintiff) filed an eviction petition against the
respondent (tenant) – The respondent filed the written statement
and denied the relationship of landlord and tenant – Thereafter, the
landlord failed to appear before the Rent Controller for the purpose
of establishing the relationship of landlord and tenant between the
parties – Rent controller proceeded to dismiss the eviction petition
and the same was not challenged by way of appeal – After the
demise of the landlord, the appellant (successors in interest) filed
another eviction petition – The respondent raised the plea of res
judiciata u/s 11 and preferred an application under Or. 7 R. 11 for
rejection of plaint – Additional Rent Controller declined to reject
the plaint – Aggrieved by it, the respondent preferred a civil revision
petition before the High Court and the same was allowed by the
High Court by holding that the fresh eviction petition filed by the
appellant is hit by principles of res judicata as landlord was having
been afforded an opportunity to lead evidence and having failed to
produce any evidence in the Court, it has to be taken as a decision
on merits under Or.17 Rule 3 for the purpose of Section 11 of the
Code – On appeal, held: High Court committed an error in taking
the view that the order passed by the Additional Rent Controller
could be said to be one passed in exercise of powers under Rule 3
of Or. 17 – The order did not purport to be one of dismissal for
default or on merits and it cannot be taken to mean other than what
it purported to be – Further, the order of the Rent Controller did not
purport to be a final disposal of the suit and what it did was that it
merely stopped the proceedings and it did nothing more and therefore
this is not final decision of the suit within the meaning of Or. 9 Rule
8 and Or. 17 Rule 3 resply of the CPC – Suit is revived.
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SUPREME COURT REPORTS
[2023] 4 S.C.R.
Code of Civil Procedure, 1908 – When it would not be Res
judicata in a subsequent suit – Held: Where the former suit is dismissed
by the trial court for want of jurisdiction, or for default of the
plaintiff’s appearance, or on the ground of non-joinder or mis-
joinder of parties or multifariousness, or on the ground that the
suit was badly framed, or on the ground of a technical mistake, or
for failure on the part of the plaintiff to produce probate or letter of
administration or succession certificate when the same is required
by law to entitle the plaintiff to a decree, or for failure to furnish
security for costs, or on the ground of improper valuation, or for
failure to pay additional court fee on a plaint which was
undervalued, or for want of cause of action, or on the ground that
it is premature and the dismissal is confirmed in appeal (if any), the
decision, not being on the merits, would not be res judicata in a
subsequent suit.
Allowing the appeal, the Court
HELD: 1. The guiding principles for deciding an application
under Order 7 Rule 11(d) of the CPC can be summarized as
follows:- (i) To reject a plaint on the ground that the suit is barred
by any law, only the averments in the plaint will have to be referred
to; (ii) The defence made by the defendant in the suit must not
be considered while deciding the merits of the application; (iii)
To determine whether a suit is barred by res judicata, it is
necessary that (i) the ‘previous suit’ is decided, (ii) the issues in
the subsequent suit were directly and substantially in issue in
the former suit; (iii) the former suit was between the same parties
or parties through whom they claim, litigating under the same
title; and (iv) that these issues were adjudicated and finally decided
by a court competent to try the subsequent suit; and (iv) Since an
adjudication of the plea of res judicata requires consideration of
the pleadings, issues and decision in the ‘previous suit’, such a
plea will be beyond the scope of Order 7 Rule 11 (d), where only
the statements in the plaint will have to be perused. [Para 33][653-
F-H; 654-A-B]
2. The general principle of res judicata under Section 11 of
the CPC contain rules of conclusiveness of judgment, but for res
judicata t

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