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.
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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
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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
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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
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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
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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
