Ajaykumar Kamalkant Pathak vs Ramchandra Madari Katkamwar
2017 Latest Caselaw 3723 Bom

9-J-CRA-71-16                                                                               1/30


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR.

                 CIVIL REVISION APPLICATION NO.71 OF 2016


Ajaykumar Kamalakant Pathak, 
aged about 37 years, Occ. Astrologist, 
R/o Pankaj Apartment, Flat No.11, 
Khare Town, Dharampeth, Nagpur, 
Tah. and Dist. Nagpur.                                            ... Applicant 

-vs- 

Ramchandra Madari Katkamwar, 
aged about 70 years, 
Occ. Business, R/o 9, 
Pankaj Apartment,  
Khare Town, Dharampeth, Nagpur, 
Tah. and Dist. Nagpur.                                            ...  Non-applicant.   


Shri N. B. Kalwaghe, Advocate for applicant. 
Shri D. V. Chauhan, Advocate for non-applicant. 

                CORAM  :  DR (SMT) SHALINI PHANSALKAR-JOSHI, J. 

DATE : JUNE 29, 2017

Oral Judgment :

In this revision application, some interesting question of law

relating to application of the provisions of res judicata, as provided under

Order XII of Code of Civil Procedure, are raised.

2. The revision is directed against the order passed by the 7 th Jt. Civil

Judge, Sr. Dvn. Nagpur in Spl. C.S.No.2 of 2015 thereby rejecting the

9-J-CRA-71-16 2/30

application filed under Order VII Rule 11(d) read with Section 11 of the

CPC. The said application was filed by the present applicant who is

defendant in the suit, contending inter alia that the suit is barred by principle

of res judicata, since the issue directly and substantially in issue between the

same parties was already adjudicated and decided in earlier suit bearing Spl.

C.S. No.1423 of 2011.

3. Brief facts, which are necessary, for deciding this revision can be

stated as follows :

Respondent plaintiff has purchased flat No.11 of Pankaj

Apartment, Khare town, Dharampeth from Pankaj Prabha Co-operative

Housing Society Ltd. by registered sale deed dated 19/12/2006. Since prior

to purchase of the said flat, respondent was residing therein since 1999.

Initially the flat was allotted by said Society to one Ashok Jatiram Barve.

However, Ashok Barve never resided in the said flat. The President of the

Society mortgaged Pankaj Apartment with Maharashtra State Finance

Corporation. As Ashok Barve was unable to pay the loan amount, respondent

paid the same to the President of the Society and in lieu thereof purchased

the said flat. However meanwhile Maharashtra State Finance Corporation

had attached and sealed the said property along with the articles therein on

24/02/2004. Thereafter the Ex-President of the Society cleared the dues of

Maharashtra State Finance Corporation on 11/11/2005. Thus property

9-J-CRA-71-16 3/30

came into possession of the society and the keys thereof were handed over

to the new President with the consent of one Diwakar Patne, Sudhakar Tidke

and the Recovery Officer of the said Finance Company.

4. As per the grievance of the respondent, the petitioner herein

illegally broke open the lock of the said premises and took possession thereof

in absence of respondent. The cost of the articles was more than

Rs.5,00,000/-. According to the respondent, at the time of agreement it was

decided that Diwakar Patne and the petitioner herein will return the said

articles to respondent before execution of the sale deed. Therefore on the

basis of this assurance, the respondent No.1 entered into agreement of sale

with the consenter Diwakar Patne and the petitioner on 03/09/2009. As

per clause 7 of the agreement of sale, the sale deed was to be executed

within four months from the date of agreement and if it was not executed

then the agreement of sale was to stand automatically cancelled and earnest

money paid by the purchaser was to be returned.

5. According to the respondent, the petitioner failed to return the

household articles which were lying in the said premises. He also took

illegal possession of the said property without permission of the respondent

and as a result, the agreement stood automatically cancelled. The

respondent was always ready to return the earnest amount which he had

9-J-CRA-71-16 4/30

received at the time of execution of agreement to sale on 03/09/2009 to the

petitioner. Therefore respondent filed suit bearing RCS No.869/2011

against the petitioner for declaration and permanent injunction in respect of

the suit property. The said suit came to be dismissed on 22/09/2014. The

same agreement to sale on which the suit was filed by respondent, was

challenged by the petitioner also by filing Spl.C.S.No.1423/2011. That suit

also came to be dismissed on 25/04/2013. In this backdrop the respondent

filed fresh suit bearing spl.C.S. No.2/2015 before the trial Court seeking

declaration that the agreement dated 03/09/2009 stands cancelled on

account of breach of term and condition of the said agreement. In the suit he

also claimed for the decree of vacant possession and for return of articles or

to pay the cost of the articles which was Rs.5,00,000/-

6. This suit came to be resisted by the petitioner herein, vide his

written statement, raising a specific plea that the suit is barred by principle

of res judicata, as the earlier suit filed on the same cause of action, with the

same pleadings is dismissed by the Court and no appeal was preferred

against the same; therefore that decree has attained finality.

Alongwith written statement, the petitioner also filed an

application under Order 7 Rule 11(d) CPC for rejection of the plaint in view

of bar of res judicata under Section 11 CPC.

9-J-CRA-71-16 5/30

7. This application was resisted by the respondent contending inter

alia that the reliefs claimed in both the suits are different, the cause of action

for both the suits is also different and hence the bar of res judicata is not

attracted.

8. The trial Court, after hearing learned counsel for the petitioner

and respondent, rejected the said application holding that the reliefs claimed

in the present suit and the previous suit are not identical. Moreover in the

earlier suit bearing R.C.S. No.869/2011, the petitioner herein, who was

defendant in that suit, has not filed written statement or adduced evidence

and hence it cannot be said that the earlier suit was decided finally on

merits.

9. While challenging this order of the trial Court, the submission of

learned counsel for the petitioner is that the trial Court has failed to properly

appreciate the provisions of Section 11 of CPC which contain the principle of

res judicata. It is urged that even a bare perusal of the reliefs claimed and

averments made in both the suits, is more than sufficient to show that the

matter of lis in the present suit was substantially and directly in issue in the

earlier suit and in such situation, the bar of res judicata becomes clearly

attracted.

9-J-CRA-71-16 6/30

10. Secondly, it is submitted that the additional reliefs claimed by the

respondent-plaintiff in the subsequent suit, are also barred by constructive

res judicata under Explanation IV of Section 11 C.P.C. as he could have very

well asked for those reliefs in earlier suit also. It is also urged that the

provisions of Order II Rule 3 CPC also come into picture considering that

though those reliefs were available for the plaintiff, he has not asked for

those reliefs in the earlier suit. According to learned counsel for the

petitioner, the Court has to, not only see the bare averments in the plaint but

also understand the substance and the purport of the plaints in the earlier

suit and the subsequent suit. In the instant, case it is urged that the plaint

is drafted ingeniously, seeking additional relief and giving different cause of

action. However whatever dispute which is raised by the respondent-plaintiff

in the subsequent suit, he has already raised that dispute in the earlier suit

also and the said suit having been finally decided, the present suit is

apparently barred by principles of res judicata.

11. Per contra, learned counsel for the respondent-plaintiff has

submitted that the earlier suit was for cancellation of the sale deed whereas

the present suit is for recovery of possession and also for recovery of the

articles. In the instant case even additional relief of mandatory and

permanent injunction is also claimed. Further, the present suit is under

Section 6 of Specific Reliefs Act, whereas earlier suit was simplicitor for

9-J-CRA-71-16 7/30

declaration. Thus according to learned counsel for respondent-plaintiff, the

present suit cannot be considered to be barred by res judicata, having regard

to the different reliefs claimed in both the suits and that too under different

provisions of law.

12. In order to understand and appreciate the submissions advanced

by learned counsel for both the parties, in my opinion, it would be necessary

to consider the averments made in the earlier suit on the basis of which the

relief was claimed therein ? At the outset it has to be stated that there is no

dispute as to the fact that suit property claimed in both the suits is one and

the same. The parties to both the suit are also one and the same. In earlier

suit, the respondent-plaintiff has stated in paragraph 2 that he was living in

the suit property since 1999. It was initially allotted by Pankaj Prabha Co-

operative Society to Ashok Barve. However Ashok Barve never came to

reside in the said property. The President of the Society mortgaged Pankaj

Apartments with Maharashtra State Finance Corporation. Ashok Barve was

unable to pay the loan amount. Therefore plaintiff paid loan amount to the

President of the Society and purchased the said property. The President

failed to pay the loan amount and therefore Maharashtra State Finance

Corporation attached and sealed the suit property along with articles inside

it on 24/02/2004. Thereafter the Ex-president of the said Society cleared

the dues of Maharashtra State Finance Corporation on 11/11/2005. Thus

9-J-CRA-71-16 8/30

the property was with the Society since then. The Ex-President has not

handed over the keys of the premises to new President and with the consent

of Diwakar Patne, Sudhakar Tidke and the Recovery Officer of Finance

company, the lock of the premises was broken open by the defendant, the

present appellant and the possession of the premises was obtained illegally in

absence of the plaintiff.

13. In subsequent paragraph 3 of the said plaint, it was further stated

that the plaintiff's household and official articles were lying in the premises,

when Shri Patne and defendant forcibly broke open the lock of the premises

and took possession in absence of the plaintiff. It is further stated that the

cost of those articles lying in the premises was Rs.5,00,000/-. According to

plaintiff as stated in the said para at the time of agreement to sell it was

agreed that Shri Diwakar Patne and defendant will return the articles to the

plaintiff before execution of the sale deed and hence plaintiff entered into

agreement of sale along with consenter Diwakar Patne with the defendant

on 03/09/2009.

14. As per averments in paragraph 4 of the same plaint, it is stated

that in view of Clause 7 of agreement of sale dated 03/09/2009, sale deed

was to be executed within a period of four months on purchaser paying the

balance consideration to the vendor/consenter. Thereafter agreement was to

9-J-CRA-71-16 9/30

be stamped. According to plaintiff in that case, as defendant failed to

return the articles and also failed to fulfil the condition in Clause 7 of the

agreement, agreement stood cancelled and therefore as he was ready to

return the earnest amount, he filed suit in the trial Court seeking following

reliefs :

" i) Declare that the agreement dated 03/09/2009 which was executed

between plaintiff and the defendant stands cancelled as per the clause

and the condition of the agreement.

ii) Grant decree of permanent injunction there by restraining the defendant

his legal representatives administrators and assignees to enter in to any

agreement, mortgage, to lease, to rent, to transfer, or to create 3 rd party

interest in the above property.

iii) Direct the defendant to pay exemplary compensatory costs to the

plaintiff.

iv) Any other relief, as this Hon'ble court deems fit under the facts and

circumstances of the present case, be granted to the plaintiff. "

15. The said suit was filed on 20/10/2011. It is a matter of record

that the summons of the said suit was served on the defendant. The

defendant appeared in the matter but failed to file written statement.

Defendant also did not adduce any evidence. Hence on the basis of the

evidence adduced by the plaintiff, the suit came to be dismissed by judgment

9-J-CRA-71-16 10/30

and order dated 22/09/2014. No appeal was preferred against the said

judgment and decree and therefore, needless to state, it has attained

finality.

16. The subsequent suit is filed by the plaintiff on 29/12/2014. The

allegations made in paragraphs 2,3,4 and 5 of the said suit are exactly the

replica or one may say the 'cut, copy, paste' of the allegations and the

averments made in the earlier suit, without a single change in a comma, far

remain a change in the sentence or substance. Moreover in paragraph 6 of

the plaint of this suit, it was also stated that,

" plaintiff had filed the earlier suit bearing No.C.S.No.869/2011

against the defendant for declaration and injunction in respect of the same

suit property. The said suit was decided on 22/09/2014. In the said suit he

has challenged the agreement of sale."

It was further stated that,

" the agreement of sale which was subject matter of the said suit

was also challenged by the defendant by filing Spl. C.S. No.1423/2011. It

was also dismissed on 25/04/2013 and then plaintiff issued legal notice to

defendant on 16/12/2014. The defendant replied the said notice on

18/12/2014."

17. Then in para 12, the plaintiff has claimed following reliefs in the

9-J-CRA-71-16 11/30

subsequent suit :

" i) Treat the agreement dated 03/09/2009 which was executed between

plaintiff and the defendant stands cancelled, as per the clause and the

condition of the agreement.

ii) Grant possession of flat No.11 of Pankaj Apartment, Khare Town,

Dharampeth, Nagpur in a vacant possession, in favour of the plaintiff

immediately.

iii) Pass the decree of possession in favour of plaintiff and against the

defendant of above suit property.

iv) Direct the defendant to return the articles of the plaintiff or give the cost

of the articles Rs.5,00,000/- to the plaintiff.

v) Grant any other relief as this Hon'ble court deems fit under the facts and

circumstances of the present case be granted to the plaintiff. "

18. Thus it can be seen, even on bare reading of the plaints in both

the suits that the first prayer, that of " declaration that the agreement dated

03/09/2009 which was executed between the plaintiff and the defendant

stands cancelled," is exactly the same in the both the suits. Hence it follows

that in the earlier suit as the said relief was rejected on merits, by detailed

reasoning and that judgment being not challenged, the finding on that issue

has attained finality. Hence it goes without saying that the bar of res

judicata clearly applies to that issue and plaintiff cannot claim the same relief

9-J-CRA-71-16 12/30

again in subsequent suit.

The second prayer, which was in earlier suit for " a decree for

permanent injunction restraining the defendant from creating third party

interest in the suit property" is not included in the subsequent suit.

19. There are two more additional prayers made in the subsequent

suit, relating to getting possession of the suit property and for that purpose

sought a decree of possession and return of articles worth Rs.5,00,000/-. It

may be true that these two reliefs were not asked for in the earlier suit.

However, the fact remains that there were sufficient pleadings in the earlier

suit about these two prayers also, like in paragraph 3 of the plaint in earlier

suit it was stated that defendant has forcibly taken possession of the suit flat

and also illegally taken away the articles, the cost of which was

Rs.5,00,000/-. It is pertinent to note that when there were sufficient

averments made in the earlier plaint about these reliefs, it was necessary for

the plaintiff in the earlier suit itself to seek the relief of possession if it was

forcibly taken from him and also return of articles which were according to

him illegally taken away. The plaintiff has not asked for those reliefs which

were very much available to him in the earlier suit. However perusal of the

judgment passed in earlier suit reveals that the trial Court has in the said

judgment, considered these aspects also as to whether the plaintiff was

forcibly dispossessed from the suit premises and whether the articles worth

9-J-CRA-71-16 13/30

Rs.5,00,000/- were taken illegally by the defendant. The trial Court has

considered these aspects in paragraph 22, 23, 24 and 25 of the judgment of

that suit as follows :

" 22. From the case of plaintiff, it discloses that he has claimed the relief

of declaration on the basis of the alleged fact that his articles worth of

Rs.5,00,000/- are still lying with the defendants. It is his specific

contention that when the Maharashtra State Co-operative Housing

Finance has attached the suit flat for the recovery of loan amount on

26/02/2004, he was residing in the flat. His household articles worth of

Rs.5,00,000/- were lying in the suit flat. While attaching the suit flat, the

concern Recovery Officer has also attached the household articles of the

plaintiff under the list. In order to prove that fact, the plaintiff has placed

on record the letter dated 19-08-2013 (Article-B) thereby showing that

certain documents were given to the plaintiff on his demand. From bare

perusal of the documents, it discloses that certain articles were seized

under the seizure panchanama dated 26/02/2004 from the suit flat. On

the basis of said seizure panchanama, the plaintiff is claiming back the

said household articles worth of Rs.5,00,000/- showing that it was the

condition precedent of the contract as per their oral agreement. It is the

case of plaintiff that as the defendants have not returned those attached

articles as per oral agreement, the agreement (Exh.42) cannot be

executed.

9-J-CRA-71-16 14/30

23. The plaintiff has submitted that the returning of

household articles was the condition precedent and on that basis only the

agreement (Exh.42) came to be effected. When it is the specific contention

of plaintiff in that regard, then definitely such a material condition should

have been entered in the agreement in the normal circumstances.

However, no such condition is found in the agreement. The omission to

incorporate such condition in the agreement shows that the plaintiff has

impliedly waived his right for returning of such goods. On the contrary,

the plaintiff has also received certain consideration amount in

installments.

24. The plaintiff has also not raised the grievance about

returning of the goods immediately soon after the execution of the

agreement. Thus, the claim pertaining to reserving right for taking back

the household articles also does not seem to be probabale as alleged by the

plaintiff.

25. In view of the aforesaid facts and circumstances, it is clear

that the case of plaintiff does not stand either on legal or factual aspect.

Consequently, the agreement (Exh.42) cannot be declared as cancelled as

sought for. Hence I hold that the plaintiff has failed to prove that the

agreement (Exhibit-42) is either void or voidable. Hence, I answer Point

No.1 in the negative."

9-J-CRA-71-16 15/30

20. It is pertinent to note that the trial Court has in the said judgment

itself considered in detail not only as to how the prayer made by the plaintiff

for declaration of cancellation of agreement of sale was not tenable at all but

the trial Court has also dealt with his averments as to forcible dispossession

and return of articles. The discussion to that effect in the said judgment of

the trial Court in paragraph Nos.19, 20 and 21 is as follows :

" 19. Having regard to the claim of plaintiff specifically under

Section 31 of the Specific Relief Act is taken into consideration, it will be

clear that the declaration as to cancellation of document can be sought

only in the cases where the instrument or document is either void or

voidable. The plaintiff has not brought on record any material fact to

show that when the agreement was executed it was either void or voidable.

It is not his case that the agreement was the out come of any fraud,

misrepresentations etc. Thus, the legal aspect as required for claiming

cancellation of document is not complied with in the case in hand. The

said provision further provides that no person shall take advantage of such

void or voidable document in order to cause serious injury to the other.

Thus, the object of the provision is something different than claimed by the

plaintiff in the present suit.

20. If the entire pleadings of the plaint is taken into

consideration, it will show that the main contention of plaintiff is that the

defendants have committed breach of contract and thus the defendants are

9-J-CRA-71-16 16/30

not entitled for any relief such as enforcing the specific performance of

contract as well as retaining the possession in pursuance of contract. It is

a matter of fact that defendant No.1 was put in possession of the suit flat

as per clause-6 of the contract. The possession was delivered after

settlement of issues between the plaintiff and defendant No.2 by way of

agreement. In this background, the contention of plaintiff that clause-7

of the agreement was determination clause cannot be accepted.

21. The plaintiff may have grievance about the non-

compliance of contract. As stated the above, the plaintiff will have liberty

to put up his defence before the Court in which the other civil suit is

pending. In this background, the claim as to declaration of agreement as

cancel does not fall within scope of section 31 of the Specific Relief Act. "

21. Thus it is apparent that the trial Court in the said judgment has

not only considered as to whether the agreement to sale can be declared as

null and void and therefore can be cancelled, which was the relief directly

claimed in the suit and given a judicial finding to it, but the trial Court has

also, considered the other reliefs which plaintiff should have asked in that

suit but has not asked for in that suit and asked in this suit viz. the return of

the articles and his forcible dispossession. Therefore even as regards the

reliefs for the decree of possession, and return of articles which were though

not expressly claimed, the trial Court has considered those reliefs in its

9-J-CRA-71-16 17/30

judgment in detail. The trial Court has considered every aspect of the

controversy involved between the parties and also the case of the plaintiff

which should have been raised and should have sought the relief. In such

situation, the question is whether the subsequent suit seeking the same

relief relating to cancellation of agreement of sale and the consequential

reliefs like decree for possession and return of articles, which plaintiff could

have very well asked for in the earlier suit, but for the reasons best known

to him, he has not asked, will or will not be barred by principles of

constructive res judicata ?

22. For this purpose, one has to consider the provisions of Section 11

of Code of Civil Procedure which deal with principles of res judicata.

Section 11 CPC not only recognises the general principles of res judicata but

it also bars the jurisdiction of Court in terms of Section 12 of CPC. The

essential conditions for the applicability of the principles of res judicata are

elaborated several times in various judgments of the Apex Court and this

Court also and they can be stated as follows:

" (I) The matter directly and substantially in issue in the

subsequent suit or issue must be the same matter which was directly and

substantially in issue in the former suit;

(II) The former suit must have been a suit between the same

parties or between parties under whom they or any of them claim;

 9-J-CRA-71-16                                                                                 18/30


             (III)          The parties must have litigated under the same title in

the former suit; 

             (IV)           The   court   which   decided   the   former   suit   must   be   a

court competent to try the subsequent suit or the suit in which such issue is

subsequently raised; and

(V) The matter directly and subtantially in issue in the

subsequent suit must have been herd and finally decided by the court in the

first suit. Further Explanation I shows that it is not the date on which the

suit is filed later, it will be a former suit if it has been decided earlier. In

order therefore that the decision in the earlier two appeals dismissed by the

High Court operates as res judicata it will have to be seen whether all the five

conditions mentioned above have been satisfied."

23. The necessity of having such principles of res judicata and its

importance is emphasized by the Honourable Supreme Court in its decision

in the case of State of U.P. vs Nawab Hussein (1977) 2 SCC 806 as follows :

" The principle of estoppel per rem judicata is a rule of evidence. As has

been stated in Marginson v. Blackburn Borough council it may be said

to be 'the broader rule of evidence which prohibits the reassertion of a

cause of action'. This doctrine is based on two theories : (i) the finality

and conclusiveness of judicial decisions for the final termination of

disputes in the general interest of the community as a matter of public

9-J-CRA-71-16 19/30

policy, and (ii) the interest of the individual that he should be protected

from multiplication of litigation. It therefore serves not only a public

but also a private purpose by obstructing the reopening of matters which

have once been adjudicated upon. It is thus not permissible to obtain a

second judgment for the same civil relief on the same cause of action, for

otherwise the spirit of contentiousness may give rise to conflicting

judgments of equal authority, lead to multiplicity of actions and bring

the administration of justice into disrepute. It is the cause of action

which gives rise to an action, and that is why it is necessary for the

courts to recognize that a cause of action which results in a judgment

must lose its identity and vitality and merge in the judgment when

pronounced. It cannot therefore survive the judgment, or give rise to

another cause of action on the same facts. This is what is known as the

general principle of res judicata."

24. As to when the matter can be called as directly and substantially

in issue is explained in the judgment of Gujrat High Court in

Sajjadanashim Sayed v. Musa Dadabhai Ummer and ors. AIR 2000

Supreme Court 1238 by the the Apex Court laying down certain tests in

paragraph 18 as follows :

"18. In India, Mulla has referred to similar tests (Mulla, 15 th Ed, p.104).

The learned author says : As matter in respect of which relief is claimed in

9-J-CRA-71-16 20/30

an earlier suit can be said to be generally a matter 'directly and

substantially' in issue but it does not mean that if the matter is one in

respect of which no relief is sought it is not directly or substantially in

issue. It may or may not be. It is possible that it was 'directly and

substantially" in issue and it may also be possible that it was only

collaterally or incidentally in issue, depending upon the facts of the case.

The question arises as to what is the test for deciding into which category a

case falls ? One test is that if the issue was 'necessary' to be decided for

adjudicating on the principal issue and was decided, it would have to be

treated as "directly and substantially' in issue and if it is clear that the

judgment was in fact based upon that decision, then it would be res

judicata in a latter case, (Mulla, p. 104). One has to examine the plaint,

the written statement, the issues and the judgment to find out if the matter

was directly and substantially in issue (Isher Singh v. Sarwan Singh, AIR

1965 SC 948 Mohd. Hanifa, AIR 1965 SC 1559 (sic)). We are of the view

that the above summary in Mulla is a correct statement of the law."

25. In paragraph 19 of the said judgment, the Apex Court has further

cautioned that it is not to be assumed that matters, in respect of which issues

have been framed, are all of them directly and substantially in issue. Nor is

there any special significance to be attached to the fact that a particular issue

is the first in the list of issues. Which of the matters are directly in issue and

9-J-CRA-71-16 21/30

which are collaterally or incidentally, must be determined on the facts of

each case. A material test to be applied is whether the Court considers the

adjudication of the issue material and essential for its decision.

26. In paragraph 14 of the judgment, the Honourable Supreme Court

was further pleased to observe that, " a collateral or incidental issue is one

that is ancillary to a direct and substantive issue; the former is an auxiliary

issue and the latter the principal issue. The expression 'collaterally or

incidentally' in issue implies that there is another matter which is 'directly

and substantially' in issue.

27. Thus as per the tests laid down by the Apex Court in above said

decision, the issue becomes directly and substantially in issue when the Court

considers the adjudication of the said issue as material and essential for its

decision.

28. Here in the case so far as issue number one relating to the

cancellation of the agreement of sale is concerned, it was directly and

substantially in issue in the earlier suit and also the present suit. The very

first prayer made in both the suits is one and the same. As a matter of fact,

the entire edifice of both the suits is the cancellation of agreement of sale.

All other reliefs claimed by plaintiff, like decree for possession, return of

9-J-CRA-71-16 22/30

articles or injunction are merely consequential to the said relief, as plaintiff

can get those reliefs only if succeeds in getting cancellation of agreement of

sale. Even if one peruses the cause of action, on the basis of which, the

plaintiff is seeking these two reliefs in the subsequent suit, it can be seen that

the averments about cause of action are the same in this suit also, which

were pleaded in the earlier suit. In the earlier suit also, he has stated that as

there was no compliance of the condition in the agreement for sale and the

articles were not returned to him, he had asked for cancellation of

agreement. In this suit also the same averments are made. Thus in the

earlier suit, he could have easily asked for the return of those articles, as

according to him, the very cause for seeking relief of cancellation of

agreement was non-return of articles but he had not done so. Moreover if it

was his case that possession was taken illegally, then also whether he was

forcefully dispossessed or not from the flat was the crux of the issue which

was directly and substantially in issue in earlier suit also and not only

incidentally and collaterally. Moreover, in respect of decree for possession

also, in both the suits, he is claiming that his dispossession was illegal.

Hence he could have prayed for decree for possession in the earlier suit also.

29. As held by the Apex Court in the case of Hope Plantations Ltd.

vs. Taluk Land Board (1999) 5 SCC 590 :

" An adjudication is conclusive and final not only as to the actual matter

9-J-CRA-71-16 23/30

determined but as to every other matter which the parties might and ought

to have litigated and have had it decided as incidental to or essentially

connected with the subject-matter of the litigation and every matter

coming within the legitimate purview of the original action both in respect

of the matter of claim or defence. The principle underlying Explanation IV

is that where the parties have had an opportunity of controverting a

matter that should be taken to be the same thing as if the matter had been

actually controverted and decided. It is true that where a matter has been

constructively in issue it cannot be said to have been actually heard and

decided. It could only be deemed to have been heard and decided. The first

reason, therefore, has absolutely no force."

It was further more opined that,

"26. It is settled law that the principles of estoppel and res judicata are based

on public policy and justice. Doctrine of res judicata is often treated as a

branch of the law of estoppel though these two doctrines differ in some

essential particulars. Rule of res judicata prevents the parties to a judicial

determination from litigating the same question over again even though

the determination may even be demonstratedly wrong. When the

proceedings have attained finality, parties are bound by the judgment and

are estopped from questioning it. They cannot litigate again on the same

cause of action nor can they litigate any issue which was necessary for

decision in the earlier litigation. These two aspects are "cause of action

9-J-CRA-71-16 24/30

estoppel" and "issue estoppel". These two terms are of common law origin.

Again, once an issue has been finally determined, parties cannot

subsequently in the same suit advance arguments or adduce further

evidence directed to showing that the issue was wrongly determined. Their

only remedy is to approach the higher forum if available. The

determination of the issue between the parties gives rise to, as noted above,

an issue estoppel. It operates in any subsequent proceedings in the same

suit in which the issue had been determined. It also operates in subsequent

suits between the same parties in which the same issue arises. Section 11 of

the Code of Civil Procedure contains provisions of res judicata but these are

not exhaustive of the general doctrine of res judicata. Legal principles of

estoppel and res judicata are equally applicable in proceedings before

administrative authorities as they are based on public policy and justice."

30. Therefore as rightly submitted by learned counsel for the

defendant-appellant, in this case principles of res judicata squarely become

applicable. Explanation IV to Section 11 of CPC which deals with the

principles of constructive res judicata, clearly states any matter which might

and ought to have been ground for defence or attack in former suit shall be

deemed to have been a matter directly and substantially in issue in such suit.

Section 12 thereof bars filing of such suit at the instance of person who is

found to be precluded by rules from instituting a further suit in respect of

9-J-CRA-71-16 25/30

any particular cause of action, he shall not be entitled to institute a suit in

respect of such cause of action in any Court to which this Code applies.

31. On this aspect learned counsel for appellant has also relied upon

the recent judgment of Apex Court in the case of Mommamed Khan (D) Th

LRs. vs. Ibrahim Khan and anr. 2016 (7) SCALE 474. In that suit, the

respondent plaintiff has alleged that he was dispossessed in September,

1983. The fact remained that earlier suit was dismissed on 21 st February,

1981 and appeal against the decree of the trial Court was filed before the

appellate Court which was dismissed on 16th July, 1985. It was held that,

the mere fact that the respondent plaintiff pleaded that he was dispossessed

in September, 1983 which fact was not pleaded in the earlier suit filed in the

year 1976 could not be a ground to hold that the earlier decision between

the parties was not res judicata. The matter directly and substantially in

issue in the earlier suit was the claim of the respondent plaintiff to title to the

property and right to the possession which was also the issue in the second

suit. Hence it was held that the mere fact that in the second suit he gave a

different date of dispossession was not enough to hold that the principle of

res judicata was not applicable, particularly when the second date of

dispossession was during pendency of the proceedings in the earlier suit."

It was further held,

" Other reason given by the High Court that the defence put up

9-J-CRA-71-16 26/30

by the appellant defendant in the present proceedings was not the defence

in the earlier suit or that the defence was barred by Sections 91 and 92 of

the Evidence Act could be of no consequence. Even if the said defence is

ignored or the respondent plaintiff is permitted to raise the plea of Sections

91 and 92 of the Evidence Act, the plea of res judicata could not be

ignored. Res judicata applies when issue in earlier suit is directly and

substantially the same as in the subsequent suit irrespective of the plea

taken with reference to such an issue in the two suits. The finding on the

issue of title and right of possession, having been heard and finally decided

in the earlier suit, operated as a bar to trial of the subsequent suit as

rightly held by the trial Court. "

32. Here in the case at hand, the matter was directly and

substantially in issue in the earlier suit on all the four counts as to the

cancellation of agreement of sale, forcible dispossession and also for return

of the articles. However no relief was claimed, though the grounds for

attack for seeking those reliefs were pleaded in earlier suit and not only

pleaded but also considered by the trial Court in its judgment. Whether the

said suit proceeded without pelading and evidence of the defendant is

immaterial as, on his own also plaintiff failed to prove his case. Hence suit

came to be dismissed on merits. In such situation, the second suit seeking

same reliefs on same pleading cannot be maintainable.

9-J-CRA-71-16 27/30

33. In this respect, the provisions of Order II Rule 2 C.P.C. also get

attracted. Rule 2 of Order II provides for the suit to include the whole claim.

It states that every suit shall include the whole of the claim which the

plaintiff is entitled to make in respect of the cause of action but the plaintiff

may relinquish any portion of his claim in order to bring the suit within the

jurisdiction of the Court. Sub rule (3) of Rule 2 which is relevant in this

case, further lays down the consequences for omission to sue for one or more

reliefs. According to that Rule, " a person entitled to more than one relief in

respect of the same cause of action may sue for all or any of such reliefs, but

if he omits, except with the leave of the Court, to sue for all such reliefs, he

shall not afterwards sue for any relief so omitted."

34. In the instant case, the plaintiff could have very well sought the

relief of possession and for return of articles in the earlier suit, as the cause

of action for the same had already occurred and as there was also sufficient

pleading to that effect, considering that on the exactly same pleadings he is

seeking this relief in the subsequent suit. There is nothing on record to show

that plaintiff has omittted to claim the said reliefs, in the earlier suit, with

the leave of Court. In such circumstances, he cannot be permitted to seek

in the subsequent suit the reliefs which he has omitted to seek in the earlier

suit that too without leave of the Court.

9-J-CRA-71-16 28/30

35. Thus the present suit filed by the plaintiff clearly attracts the bar

under Order II Rule 2 sub rule (3) CPC also in addition to the specific bar

raised by principle of res judicata under Section 11 and also Explanation IV

of the said Section. Here the issue raised in the suit being directly and

substantially in issue in the earlier suit and considered and decided on merit

in earlier suit, the plaintiff cannot be permitted to agitate on the basis of

same pleadings and same cause of action. Though some more reliefs are

tried to be claimed which were not claimed in the earlier suit, though these

reliefs were available, the bar under Order II Rule 2(3) C.P.C. is attracted

thereto.

36. Hence the impugned order passed by the trial Court of rejecting

the application filed by the appellant-defendant merely on the ground that

some of the reliefs claimed in the earlier suit and the present suit are not

identical is not legal proper and correct. As to another reason given by the

trial Court for rejecting the application is that earlier suit was decided by the

trial Court without written statement and also without recording evidence of

defendant, hence the judgment in that suit cannot be operate as res judicata.

However, the judgment passed by the trial Court in first suit reveals that the

said suit was decided on merits, after considering all the contentions raised

by the plaintiff therein and also after considering the evidence adduced by

the plaintiff, though defendant has not appeared and not filed written

9-J-CRA-71-16 29/30

statement. Hence, if the earlier suit was decided on merits and the

judgment and decree passed therein is not challenged, then the present suit

filed under different guise and quoting different provision of Section 6 of

Specific Relief Act cannot be maintainable at all, especially even from the

averments in the plaint, suit under Section 6 of Specific Relief Act cannot be

maintainable as alleged dispossession of the plaintiff from the suit flat was

much earlier, in the year 2005 itself and on the same basis, he has filed

earlier suit. Therefore merely giving a different title or merely seeking

additional reliefs, which he could have asked for in the earlier suit, the

plaintiff cannot bring the present one, out of the clutches of Section 11 and

Order II Rule 2 sub clause (3) of the C.P.C.

37. If the suit is barred by principle of res judicata on the bare

averments made by the plaintiff in the suit, then as held by the Apex Court

in the case of State of Haryana vs. State of Punjab and anr. (2004) 12

Supreme Court Cases 673, it is barred by law. In para 71 of the said

judgment, it was observed by Apex Court that since the doctrine of res

judicata is an "essential part of the rule of law", it follows that if the issues

raised in the suit are barred by res judicata ex facie, then this Court is

required to reject the plaint in terms of Order 7 Rule 11 (d) C.P.C.

38. In the instant case, earlier proceedings have been referred by the

9-J-CRA-71-16 30/30

plaintiff in the plaint itself and therefore they were the matter of record and

hence on bare perusal of both the plaints, if it is apparently crystal clear that

the present suit is barred by principle of res judicata, then the trial Court

should have allowed the defendant's application filed under Order VII Rule

11(d) of CPC. The impugned order passed by the trial Court therefore

rejecting the said application being not legal, proper, valid and correct, said

order needs to be quashed and set aside.

39. Accordingly the revision is allowed. The impugned order passed

by the trial Court rejecting the defendant's application filed under Order VII

Rule 11(d) CPC is set aside.

40. In consequence, the said application is allowed and the plaint is

rejected under Order VII Rule 11(d) CPC being barred by principle of res

judicata and Order II Rule 2(3) C.P.C.

JUDGE

Asmita