CASE DETAILS
| Bench D. Y. Chandrachud J. M.R. Shah J. | Case no. (2021) 9 SCC 99 | Acts/law CPC order 7 rule 11 |
INTRODUCTION
In the present case SRIHARI HANUMANDAS TOTALA v/s HEMANT VITHAL KAMAT and OTHERS court emphasized on the principle of rejection of plaint under order 7 rule 11 (d) as being barred by the law. Further court observed whether the res judicata could be taken as ground for the rejection of plaint under the aforesaid rule of CPC.
SUIT NO. 1:
The predecessor in interest of respondent no. 1 and his brother was the title holder of the suit property, who died in 1996, on her death the property was mutated in the name of her legal heirs that is the R1 and his brother. R1 and his brother took loan and mortgaged the suit property to KSFC (Karnataka State Finance Corporation) for repayment of loan. Since the repayment was not carried out that suit property was auctioned and predecessor of the appellant herein (R3) was the highest bidder therefore sale deed was executed in his favour however, possession was not handed over by the R1 and his brother consequently, suit was filed in 2007.
Written statement was filed by R1 claiming therein that KSFC has no authority to sell the suit property as no loan was taken and property was not offered as security.
SUIT NO. 2:
The second suit was instituted by R1 in 2008 thereby challenging the sale deed which was executed in favour of predecessor of appellant herein (R3) on the ground that KSFC has no authority over the suit property.
It was further contended that the brother of R1 has mortgaged the suit property without his consent. Earlier in 2004 a suit for partition was failed by the daughter of the brother of R1. Further R1 contended that he came to know about the mortgage when KSFC instituted a suit in 2007. Therefore, the R1 instituted a suit in 2008 assailing the sale deed and claiming the partition of the concerned suit property.
ISSUES:
The following issues were framed by the trial court: (in 2007 suit)
“1. Whether the description of suit property is correct?
2. Whether plaintiff proves that he has purchased suit property and he acquired valid title as pleaded?
3. Whether plaintiff is entitled for possession of suit property?
4. Whether Defendant 2 proves that KSFC had no authority to put the suit property for sale?
5. Whether Defendant 2 proves that there is no cause of action for the suit?
6. Whether plaintiff is entitled for decree?
7. What decree or order.”?
TRIAL COURT
In 2009 trial court decreed the present suit and directed the R1 to handover the possession to the predecessor of the appellant herein that is R3 in the present case.
Trial Court observed that the contention concerning the authority of KSFC to sell the suit property ought to be challenged independently. Evidence suggest that R1 did not challenge the sale deed executed after auction even after having knowledge of the same as the KSFC was also a party in the suit instituted in 2004. Court gave finding that the validity of the sale deed could be adjudged in the suit of 2008 which was instituted by the R1 and not in suit of 2007 (present case).
Thus, court came to the conclusion that sale deed is valid and predecessor of appellant (plaintiff) is entitled to possession of suit property.
APPEAL:
R1 filed an appeal impugning the decree of 2009 before High Court and during the pendency of appeal R3 filed an application for the stay of the proceeding concerning the suit of 2008 till the disposal of appeal against 2007 suit decree, subsequently court was pleased to allowed the same.
HIGH COURT
In 2017 the High court was pleased to dismiss the said appeal and upheld the judgment of trail court passed in 2009.
Further the appellant who had purchased the property from R3 (his predecessor) filled an application under order 7 rule 11 for the dismissal of suit of which was filed by R1 in 2008.
APPLICATION UNDER ORDER 7 RULE 11 on ground of res judicata:
An application under order 7 rule 11 was filled by the appellant for the rejection of plaint which was filed by R3 in 2008 on the following grounds:
- Non payment of the court fee;
- Non-disclosure of cause of action;
- Suit being barred by res-judicata- as the issues were already raised in 2007 suit
However, the application under order 7 rule 11 for the rejection of plaint was dismissed by the trial court in 2019 on the following grounds:
- Non payment of the court fee is ground for rejection of plaint only when even after the opportunity of the court the party failed to furnish the requisite court fee as provided under order 7 rule 11 (c);
- Cause of action is rightly pleaded by plaintiff;
- For rejection of plaint court can only look into the plaint and not the defense taken and suit being barred by res judicata is the defense which court can not consider while exercising the power under order 7 rule 11; moreover rule of res judicata can not be decided in an application under order 7 rule 11.
REVISION PETITION:
Appellant herein assailed the said order of the dismissal of the application for rejection of plaint by filing a revision petition under section 115 of CPC before the High court. High court upheld the order of the trial court and opined that in order to adjudge any application on ground of res judicata the court has to look into the pleadings and documents of the earlier suit of suit of 2007 and compare the same with 2008 suit. A court can only count on the averments made in plaint in order to reject the plaint on the grounds specified under order 7 rule 11 CPC therefore the application of appellant was rightly dismissed by the trial court.
SUPREME COURT
The order of the High court passed in civil revision was impugned in present appeal before supreme court. It was contended by the appellant in the present appeal:
…. the issue concerning title of the suit property stands adjudicated in favour of the predecessor-in-interest of the appellant in the earlier suit and the decree for possession was upheld by the High Court. Hence, another suit agitating the same issues and challenging the same sale deed is not maintainable and is barred by the principles of res judicata.
In paragraph no. 17 court construed order 7 rule 11 (d) as under:
17. Order 7 Rule 11(d) 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.
The apex court relied on V. Rajeshwari v. T.C. Saravanabava (2004) 1 SCC 551: wherein court observed that while applying rule of res judicata court opined that not only has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case.
The apex court further relied on Kamala vs. K. T. Eshwara Sa (2008) 12 SCC 661 and Soumitra Kumar Sen vs. Shyamal Kumar Sen (2018) 5 SCC 644: wherein court dealtwith the same issue of rejection of plaint and suit barred by the law as in res judicata in the present case.
FINDING:
Court gave following guiding principles:
- For rejection of plaint on ground of the suit barred by the law only the averments made in the plaint has to be looked into;
- Defence raised by the defendant in suit should not be considered;
- To decide the suit whether barred by res judicata it is necessary:
- That previous suit is decided;
- Issue in the subsequent suit is directly and substantially in issue in the former suit;
- Former suit was between the same parties;
- Issues were adjudicated by the court of competent jurisdiction.
- Res judicata is beyond the scope of order 7 rule 11 as while barring the suit under section 11 court has to consider pleadings, issues, and decision of former suit which is not permissible under order 7 rule 11 of CPC.
Court upheld the finding of High court and trial court therefore plaint is not liable to be rejected under order 7 rule 11 (d) as being barred by the law. However, apex court clarified that it gives no finding that whether suit of 2008 is barred by Section 11 CPC or not. The present appeal stands dismissed.