Bombay High Court
Vijay S/O Devaji Mundale vs State Of Maha. Thr. Dy. Conservator Of ... on 16 July, 2025
2025:BHC-NAG:6860
1 cra.138.19-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CIVIL REVISION APPLICATION NO.138 OF 2019
Vijay s/o. Devaji Mundale,
Aged about 52 years, Occu.: Cultivator,
R/o. Pawani, Tahsil Pawani, (Ori.Def.No.1)
District Bhandara. ... APPLICANT
...VERSUS...
1. State of Maharashtra, through
Deputy Conservator of Forest, Wardha,
Shri Sunil Prithvi Sharma,
Aged about 40 years, Occu.: Service,
Resident of Wardha,
Tahsil and District Wardha. (Ori. Plaintiff No.1)
2. Range Forest Office, Kharangana,
Through its Range Forest Officer,
Kharangana, Shri Abhay S. Talhan,
Aged about 42 years, Occu.: Service, (Ori. Plaintiff No.2)
R/o. Kharangana, Tahsil Kharangana and
District Wardha.
3. State of Maharashtra, through the Collector,
Wardha, Tahsil and District Wardha. (Ori. Def. No.7)
4. Smt. Kanchan wd/o. Madhukar Salodkar,
Aged about 72 years, Occu. Cultivator. (Ori. Def. No.2)
5. Ravindra S/o. Madhukar Salodkar,
Aged about 51 years, Occu. Cultivator, (Ori. Def.No.3)
6. Vinod s/o. Madhukar Salodkar,
Aged about 45 years, Occu.: Cultivator. (Ori. Def. No.4)
7. Prashant s/o. Madhukar Salodkar,
Aged about 41 years, Occu.: Agriculture, (Ori. Def.No.5)
Nos.2 to 5 are R/o. Ajandoh,
Tahsil Karanja (Ghadge), District Wardha.
2 cra.138.19-J.odt
8. Sou. Bhagyashri @ Basanti w/o. (Ori. Def.No.6)
Sudhakar Bakre,
Aged about 43 years, Occu.: Household,
R/o. Kolha-Theka, Tahsil Ashti,
... NON-APPLICANTS
District Wardha.
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Mr. S. P. Kshirsagar, Advocate for the Applicants.
Ms S. N. Thakur, A.G.P. for Non-applicants /State.
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CORAM : MRS. VRUSHALI V. JOSHI, J.
JUDGMENT RESERVED ON : 08.07.2025
JUDGMENT PRONOUNCED ON : 16.07.2025
JUDGMENT :
1. Rule. Rule is made returnable forthwith. Heard finally by consent of learned Counsel appearing for the parties.
2. The applicant is challenging the order dated 29.08.2019 passed by 3rd Civil Judge Senior Division, Wardha in Regular Civil Suit No.327/2017, thereby rejecting the application filed under Order VII Rule 11(d) of the Civil Procedure Code, 1908 (hereafter referred to as "C.P.C.").
3. The facts in brief are as under :
4. That, the applicant has filed a suit bearing Regular Civil Suit No.329/2003 for Declaration and Ownership and Injunction against the non-applicant Nos.1 to 3. It was decreed in favour of the applicant and the applicant is declared as the owner of the suit property. The non- applicant Nos.1 to 3 have filed an appeal challenging the decree passed 3 cra.138.19-J.odt in the Civil Suit. The appeal was dismissed and the title of the suit property was declared in favour of the applicant. Said order was also challenged in Second Appeal No.338/2011 before this Court. The Second Appeal was also dismissed on 18.03.2016 and a direction was given/issued to hand over the possession of the suit land to the applicant within a month. It is further directed that, if the possession is not given within a month, then costs of Rs.25,000/- is directed to be paid to the applicant.
5. The non-applicant Nos.1 and 2 have filed Regular Civil Suit No.327/2017 before the Civil Judge, Senior Division, Wardha on 29.09.2017 claiming the title over the suit property and also for cancellation of sale-deed dated 05.11.2006 of the suit property bearing Survey No.35/1 admeasuring 1.80 acres and Survey No.34/2, admeasuring 1.74 acres, which are renumbered as Survey No.56, total area 2.65 H.R. against the applicant. After receiving the summons, the applicant has filed the application under Order VII Rule 11 of C.P.C. for rejection of the plaint pointing out that the issue raised in the present suit has already been decided by the Civil Judge Senior Division, Wardha, thereby declaring the ownership of the applicant and has attained finality in Second Appeal No.338/2011.
6. The learned Counsel for the applicant has stated that the suit filed by the non-applicants is hit by Section 11 of C.P.C. and is liable to be 4 cra.138.19-J.odt dismissed. The Trial Court without going into the question of res judicata has rejected the application filed by the applicant. The issues which are involved in the Civil Suit filed by the non-applicants are already decided by the Competent Court of law in earlier round of litigation declaring the applicant as the owner of the suit property which has attained finality. In such circumstances, a new suit raising same grounds for challenging the decision rendered by the learned Trial Court and confirmed up to the High Court is barred by the principle of res judicata under Section 11 of C.P.C. which is not considered by the Trial Court. Hence, prayed to set aside the order passed by the learned Trial Court by allowing this application.
7. The learned A.G.P. opposed the application stating that the order passed by the Civil Judge Senior Division, Wardha under Order VII Rule 11 of the C.P.C. is correct as the issue of res judicata cannot be considered while considering the application under Order VII Rule 11 of C.P.C. The plaint cannot be rejected considering the issue of res judicata. Hence, prayed to dismiss the application.
8. Heard both the learned Counsel for the parties.
9. The question raised in this application is whether the principle of res judicata can be attracted/considered in application filed under Order VII Rule 11 of the C.P.C. While considering the application 5 cra.138.19-J.odt under Order VII Rule 11, the Court has to consider the averments made in plaint and the reliefs claimed in the suit only. On going through the plaint, it appears that the plaintiffs have admitted that the earlier proceedings were between the same parties and the relief granted to the applicant in earlier suit has been confirmed up to the High Court in the second appeal. The dismissal of the Second Appeal has not been challenged before the Supreme Court. Thus, the same has attained finality.
10. On considering the contents of the plaint, it appears that the suit is barred by the principles of res judicata. The non-applicants are claiming the title wherein the execution proceedings are already pending and the ownership is given by the Competent Court to the applicant. Even a bare perusal of the plaint in the suit and the plaint of the earlier suit, the judgment and order passed therein goes to show that, the present suit filed under Section 11 of the C.P.C clearly attracts the bar of res judicata.
11. Section 11 of C.P.C. lays down that " No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently 6 cra.138.19-J.odt raised, and has been heard and finally decided by such Court." The issue raised in the present suit filed by the non-applicants is about the ownership of the suit property.
12. The applicant and the non-applicants were the parties up to the High Court and the suit was decreed in favour of the applicant. Thus, the issue raised in the present suit has been directly and substantially an issue in earlier suit which was again between the same parties under whom they or any of them claimed to be litigating under the same title. Therefore, it has to be held that the decision of the earlier suit acts as res judicata for the present suit.
13. The non-applicants have stated that the issue of res judicata being a mixed question of law and fact as held by the Hon'ble Apex Court in the case of Keshav Sood Vs. Kirti Pradeep Sood and Ors. reported in 2023 LiveLaw (SC) 799, cannot be decided on the application filed under Order VII Rule 11 of the C.P.C. for rejection of the plaint.
14. It is argued that for deciding the said issue, the proceedings and issues raised in the earlier suit including the judgment passed therein is required to be considered and therefore, the said issue should not be decided in an application filed under Order VII Rule 11 of the C.P.C. The Hon'ble Apex Court in the matter of Keshav Sood Vs. Kirti Pradeep Sood 7 cra.138.19-J.odt and Ors. [Civil Appeal No.5841/2023] observed in Paragraph Nos.4 and 5 as under :
"4. After having heard the learned counsel appearing for the parties, we find that the plea of res judicata could not have been gone into on an application made by the appellant under Rule 11 of Order VII of CPC. Apart from pleadings in the earlier suit, several other documents which were relied upon by the appellant in his application under Rule 11 of Order VII of CPC were required to be gone into for deciding the issue of res judicata.
5. As far as scope of Rule 11 of Order VII of CPC is concerned, the law is well settled. The Court can look into only the averments made in the plaint and at the highest, documents produced along with the plaint. The defence of a defendant and documents relied upon by him cannot be looked into while deciding such application."
15. The learned Counsel for the applicant has relied on the judgment of this Court in Sarjerao Dhondiba Sarode and Ors. Vs. Kamal Kerubhau Pachange and Ors. reported in 2018 (5) Mh.L.J. 323, in which it is observed by this Court in paragraph Nos.15 and 16 as under :
"15. It is true that normally the issue of res-judicata being a mixed question of facts and law, cannot be decided at the interim stage, but the use of the word, "normally" indicates that the said proposition of law is not too wide to preclude the Court from deciding the said issue at preliminary stage, even in a case, where on the face of it, it is apparent that the suit is barred by res-judicata.
16. In the present case, the judgments of the trial Court, Appellate Court and this Court, in the earlier suit are produced on record. The perusal of those judgments coupled with the averments made by the plaintiffs, in the present plaint giving the details of the earlier litigation, is more than sufficient to show that the issue, which was 8 cra.138.19-J.odt directly and substantially raised and decided in that suit, is again raised as direct and substantial issue in this suit and that too, by the legal heirs of one of the plaintiffs of that suit. Therefore, here, no further evidence is necessary at all to decide the issue of res-judicata. Hence, it cannot be said that this issue requires further consideration and it cannot be decided by this Court at the interim stage, in view of the fact that apparently the suit is clearly barred by principle of res- judicata, on the own showing of plaintiffs in view of the details of earlier litigation given in this plaint itself. If for deciding the issue of res-judicata, the Court is required to consider the pleadings or evidence in the earlier suit, then only, it may be necessary to defer the hearing and decision on that issue till final hearing of the suit but that is not the case here. Here on the very documents produced by the plaintiffs and own averments made by the plaintiffs in the plaint, bar of res-judicata clearly becomes applicable and therefore, on this very ground itself, the plaint is liable to be rejected."
16. Order VII Rule 11 of the C.P.C. provides to consider the contents in plaint only. On perusal of the plaint, it appears that the entire proceedings between the same parties and about same issue is decided and is stated by the plaintiffs. Therefore, it is not required to prove that the issue in question is already decided in earlier proceedings. For that purpose, it is not required to look into written statement or any other material which is filed on record by the defendants. Therefore, though the Hon'ble Apex Court has stated about res judicata cannot be looked into as it is the observation of the Hon'ble Apex Court to decide the matter only after considering the contents in the plaint. In the case in hand, it does not require to look into another material.
9 cra.138.19-J.odt
17. The judgment of the Trial Court, Appellate Court and this Court in the earlier suit are produced on record. Perusal of those judgments coupled with the averments made by the plaintiffs in the present plaint giving the details of the earlier litigation is more than sufficient to show that the issue which was directly and substantially raised and decided in that suit is again raised as direct and substantial issue in this suit and, therefore, for the issue of res judicata, no further evidence is necessary. Hence, it cannot be said that this issue requires further consideration and it cannot be decided by this Court at the interim stage. In view of the fact that apparently, the suit is clearly barred by the principle of res judicata on its own showing as of the plaintiffs have mentioned the details of the earlier litigation in this plaint itself. If for deciding the issue of res judicata, the Court is required to consider the pleadings or evidence in the earlier suit, then only it may be necessary to defer the hearing and decision of that issue till final hearing of the suit, but that is not the case in hand. Here, on the very document produced by the plaintiffs and own averments made by the plaintiffs in the plaint, bar of res judicata clearly becomes applicable and, therefore, on this very ground itself, the plaint is liable to be rejected. There remains nothing further to litigate or to decide and, therefore, the plaint in the present suit is liable to be rejected only on the ground that the suit is apparently barred by the principle of res judicata and also on the ground that it does not disclose the real cause of action or any right to sue and 10 cra.138.19-J.odt only the illusory cause of action is pleaded. The impugned order, therefore, passed by the Trial Court needs to be quashed and set aside. Accordingly, I pass the following order :
i] Revision Application is allowed.
ii] The impugned order dated 29.08.2019 passed by 3rd Civil
Judge Senior Division, Wardha in Regular Civil Suit No.327/2017 is hereby quashed and set aside.
iii] As a result, the application filed by the present defendant for rejection of the plaint under Order VII Rule 11(a) and (d) of the C.P.C. is allowed.
iv] The plaint is rejected on the ground of suit being barred by the principle of res judicata and for not disclosing the real cause of action.
Rule is made absolute in aforesaid terms. No costs.
(MRS. VRUSHALI V. JOSHI, J.) RGurnule Signed by: Mrs. R.M. MANDADE Designation: PA To Honourable Judge Date: 17/07/2025 18:21:47