Rajendra Mishra vs Manisha Mishra
2022 Latest Caselaw 7177 Chatt

                                       1

                                                                     NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                               CR No. 36 of 2020
       Rajendra Mishra S/o Late Shri Grijashankar Mahadev, aged
        about 65 years, R/o Street Adjacent Vikram Super Bazar,
        Vidyanagar, Bilaspur (CG)
                                                   ---- Petitioner/defendant
                                    Versus
      1. Manisha Mishra W/o Late Prabhat Mishra, aged about 50 years,
      2. Vishal Mishra S/o Prabhat Mishra, aged about 20 years,
         Both R/o Sukravari, Gadiyari (in front of Shashibala Kanya
         Shala), Raipur (CG)
                                               ---- Respondents/plaintiffs


For Petitioner             :       Shri Anand Shukla, Advocate.
For Respondents            :       Shri M.N. Thakur, Advocate


                    Hon'ble Smt. Justice Rajani Dubey

                               Order On Board
30/11/2022

        The matter is listed for order on admission. However, with the

consent of the parties, it is heard finally.


02.     The petitioner/defendant has filed this civil revision under Section

115 of Code of Civil Procedure against the order dated 5.3.2020

passed by III Civil Judge, Class-I, Bilaspur in Civil Suit No.205-A/2018

whereby application under Order 7 Rule 11 of CPC filed by the

petitioner/defendant has been rejected on the ground that the provision

of Section 11 of CPC i.e. the doctrine of res judicata is not applicable in

the present suit.

03.     Facts

, in brief, necessary for adjudication of this case are that

the respondents/plaintiffs filed a suit for partition, possession and

mesne profit against the petitioner/defendant in respect of the suit

property situated at Juna Bilaspur, PHN 22/35, Ward No.16, Khasra

No.708/1 and 709/1, area 3000 sq.ft out of which a double-storey

house No.14/407 is constructed.

The petitioner/defendant in his written statement denied the

plaint averments and also filed an application under Order 7 Rule 11 of

CPC for dismissal of the suit on the ground that the suit is barred by

the doctrine of res judicata and limitation. The defendant had earlier

filed a suit i.e. Civil Suit No.21-A/2016 against the plaintiffs herein

which was allowed in part by the I Civil Judge, Class-2, Bilaspur vide

judgment and decree dated 31.1.2017 and as such, the present suit

between the same parties against the same suit property is not

maintainable.

04. The trial Court vide impugned order dated 5.3.2020 rejected the

application under Order 7 Rule 11 of CPC of the petitioner/defendant

with an observation that doctrine of res judicata is not applicable in the

present suit. Hence this revision petition.

05. Learned counsel for the petitioner/defendant submits that the

trial Court ought to have considered that the issue between the parties

was already adjudicated by the competent civil Court vide judgment

and decree dated 31.1.2017 which has attained its finality and

therefore, the subsequent suit with respect to the same suit property

between the same parties is barred by the principles of res judicata. As

per Section 11 of CPC, 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. For the

aforesaid reasons, the impugned order being against the legal

principles of res judicata is not sustainable and is liable to be set aside.

Reliance has been placed on the judgment dated 2.8.2005 of the

Hon'ble Supreme Court passed in Appeal (Civil) No.443 of 2001 in

the matter of Ishwar Dutt Vs. Land Acquisition Collector and

another.

06. On the other hand, learned counsel for the respondents/plaintiffs

submits that in the previous suit between the parties, the trial Court

directed defendant No.1 (respondent No.1 herein) not to make any

interference in possession of the plaintiff over the suit property, except

by following due process of law, either herself or through any other

means. Therefore, the respondents filed the present suit against the

petitioner, the cause of action in both the suits are quite different; the

previous suit was filed by the petitioner claiming his own declaration of

title but in that suit he failed to prove his title and only injunction was

granted in his favour from illegal dispossession. In view of above, the

doctrine of res judicata is not applicable in the present suit and the trial

Court has rightly rejected the application under Order 7 Rule 11 of

CPC of the petitioner.

Reliance has been placed on the judgment of the Hon'ble Apex

Court in the matter of Kamala and others Vs. K.T. Eshwara Sa and

others reported in (2008) 12 SCC 661.

07. Heard learned counsel for the parties and perused the material

available on record.

08. In Civil Suit No.21-A/2016 filed by the petitioner herein, the

learned trial Court passed judgment and decree on 31.1.2017 partly

allowing the suit as under:

"izfroknh dzekad&1 dks funsZf'kr fd;k tkrk gS fd og okn laifRr esa oknh ds

dCts es a fof/k dh izfdz;k ls fHkUu Lo;a ;k fdlh vU; ds ek/;e ls fdlh Hkh

rjg dk gLr{ksi uk djsaA"

It is clear from the above decree that the respondents herein

were restrained from dispossessing the petitioner illegally and liberty

was reserved in favour of the respondents by the trial Court to interfere

with possession of the petitioner over the suit property only by following

the due process of law, and consequently, the present suit has been

filed by the respondents against the petitioner for partition, possession

and mesne profit.

09. In the matter of Kamala and others (supra), the Hon'ble Supreme

Court held that 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 the stage of proceeding under Order

7 Rule 11(d) of CPC.

10. In the present case, in the previous suit filed by the petitioner

against the respondents, liberty was reserved in favour of the

respondents to claim possession over the suit property by following

due process of law and consequently, the present suit has been filed.

The question of res judicata is a mixed question of law and facts which

cannot be decided in proceeding under Order 7 Rule 11 of CPC.

Therefore, this Court finds no illegality or perversity in the impugned

order of the trial Court rejecting the application under Order 7 Rule 11

of CPC filed by the petitioner.

11. For the aforesaid reasons, the instant revision petition is

disposed of with a direction to the trial Court to frame an issue

regarding res judicata along with other issues, which shall be decided

at the time of passing of final judgment.

sd/ (Rajani Dubey) Judge

Khan