SRIHARI HANUMANDAS TOTALA versus HEMANT VITHAL KAMAT & ORS.

Citation: [2021] 8 S.C.R. 387 · Decided: 09-08-2021 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Leave Granted & Dismissed

Cited by 1 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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SRIHARI HANUMANDAS TOTALA
v.
HEMANT VITHAL KAMAT & ORS.
(Civil Appeal No. 4665 of 2021)
AUGUST 09, 2021
[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 –
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 –
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
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
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
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.
[2021] 8 S.C.R. 387
387
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SUPREME COURT REPORTS
[2021] 8 S.C.R.
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’
– 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
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
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
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
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
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)
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the issues in the subsequent suit 

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