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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

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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

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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

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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

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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

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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

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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

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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

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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. Saravanabava1.  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  Mahato2,  Medapati Surayya v.  Tondapu  Bala  Gangadhara Ramakrishna  Reddi3 and  Katragadda  China Anjaneyulu v. Kattaragadda China Ramayya4].”

After so stating, the Court further observed that:-

1

 (2004) 1 SCC 551 2  AIR 1936 PC 258 3  AIR 1948 PC 3  4  AIR 1965 AP 177

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“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. Hanifa5 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 others6 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

5  (1976) 4 SCC 780 6  (2008) 12 SCC 661

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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.

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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 Trust7 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 Trust8.  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.  Mariyamma9 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

7  (2006) 5 SCC 658 8  (2006) 5 SCC 662 9  (2005) 5 SCC 548 10 (2005) 7 SCC 510

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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 Soloman11,  Khaja Quthubullah v.  Govt.  of  A.P.12,  Vedapalli  Suryanarayana v. Poosarla Venkata Sanker Suryanarayana13, Arjan Singh v. Union of India14 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  Constantza16,  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 case18 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

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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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

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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

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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

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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

Page 18

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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