Madhya Pradesh High Court
Sureshchandra vs Prakash on 13 October, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:30028
1 MA-2486-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI
ON THE 13th OF OCTOBER, 2025
MISC. APPEAL No. 2486 of 2023
SURESHCHANDRA AND OTHERS
Versus
PRAKASH AND OTHERS
Appearance:
Shri Padmnabh Saxena, learned counsel for the appellants.
Shri Shailendra Shrivastava, learned counsel for respondents No.1 to
4.
Shri Anand Bhatt, learned Government Advocate for respondent No.8
/ State.
ORDER
The appellants have filed this Misc. Appeal under Order XLIII Rule
1(u) of the Code of Civil Procedure challenging the order dated 22.02.2023
passed by learned II District Judge, Jhabua, District Jhabua in Civil Appeal
No.17/2022. By the said order, the learned appellate Court set aside the order
dated 01.08.2022 passed by the learned trial Court in Civil Suit No.1-A/2022
and remanded the matter back for fresh adjudication after recording
evidence.
2. The brief facts of the case are that respondents No.1 to 4 filed a suit
for declaration of title and permanent injunction in respect of land situated in
Survey No.557 of Village Meghnagar, District Jhabua. It was averred in the
NEUTRAL CITATION NO. 2025:MPHC-IND:30028
2 MA-2486-2023
plaint that in a previous round of litigation, a judgment and decree were
obtained by providing false information to the Court. Allegations were also
made regarding the manipulation of the mutation records and suppression of
facts related to the earlier litigation.
3. During the pendency of the suit, the appellants / defendants No.1 to
7 filed an application under Order VII Rule 11 of the CPC raising objections
regarding locus standi under Section 91 of the Civil Procedure Code and the
mandatory requirement of Section 80 of the said Code. They also raised the
defence of res judicata stating that judgments had already been passed from
the trial Court up to the Hon'ble Apex Court; therefore, the suit could not be
tried afresh on the same issue.
4. Learned trial Court entertained the application under Order VII Rule
11 of the CPC vide order dated 01.08.222, dismissed Civil Suit No.1-A/2022
by holding that the suit was barred by the principles of res judicata.
5. Respondents No.1 to 4 challenged the said order by filing a regular
civil appeal before the first appellate Court. After considering the issue in
question, the first appellate Court held that the plea of res judicata could not
be decided at the stage prior to recording of evidence. Accordingly, vide
order dated 22.02.2023 it directed that the issue of res judicata be framed and
decided after recording the evidence in accordance with the law. As such, the
matter was remanded back to the trial Court for fresh adjudication.
6. Learned counsel for the appellants submits that it is a settled
principle of law that while deciding an application preferred under Order VII
Rule 11 of the CPC only averments made in the plaint are to be considered.
NEUTRAL CITATION NO. 2025:MPHC-IND:30028
3 MA-2486-2023
In the present case, the averments in the plaint themselves demonstrate that
the suit is barred by the principles of res judicata. He, therefore, submits that
the first appellate Court committed a palpable error in reversing the order
passed by the trial Court, inasmuch as no evidence was required to be led
when the plaint itself disclosed facts sufficient to establish the appellants'
case.
7. Per contra, learned counsel for respondents No.1 to 4 as well as the
learned Government Advocate for the State contend that the question of the
application of res judicata is always a mixed question of fact and law.
Without recording evidence, the issue could not have been properly decided.
Hence, the learned first appellate Court rightly remanded the matter back to
the learned trial Court for framing an issue on res judicata and after recording
evidence, deciding the same in accordance with law. They, therefore, support
the impugned order.
8. Heard learned counsel for the respective parties and perused the
record.
9. From the averments in the plaint, it is evident that respondents No.1
to 4 / plaintiffs have explained the circumstances under which the earlier
judgment and decree were granted in favour of the appellants. They have
attempted to establish that the said judgment and decree were obtained by
playing fraud upon the Court.
10. In view of the these allegations, the plaint averments do not by
themselves establish the case of the appellants, it is a settled position of law
that the question of res judicata is a mixed question of law and fact, which
NEUTRAL CITATION NO. 2025:MPHC-IND:30028
4 MA-2486-2023
cannot be decided without recording the evidence. Hence, this Court does
not find any infirmity in the impugned order.
11. Considering the fact that this is the second round of litigation and
that the parties have already approached the Hon'ble Apex Court in the
earlier round, it is expected that the learned trial Court shall decide the suit as
expeditiously as possible.
12. With the aforesaid, the present appeal stands disposed off.
Certified copy as per rules.
(PAVAN KUMAR DWIVEDI)
JUDGE
Anushree
