Orissa High Court

*** vs Basanta Kumar Dash & Others on 31 October, 2025

                   ORISSA HIGH COURT : CUTTACK

                        CRP No.7 of 2022

     An application under Section 115 of the CPC, 1908.

                             ***

Srusti Prava Das

... Petitioner.

-VERSUS-

Basanta Kumar Dash & Others

... Opposite Parties.

Counsel appeared for the parties:

For the Petitioner : Mr. U.K. Samal, Advocate

For the Opposite Parties : Mr. A. Tripathy, Advocate.

(For the Opp. Party Nos.1 & 2)

P R E S E N T:

HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA

Date of Hearing : 27.10.2025 :: Date of Judgment : 31.10.2025

J UDGMENT

ANANDA CHANDRA BEHERA, J.--

1. This Revision under Section 115 of the CPC, 1908 has

been filed by the petitioner (defendant No.2 in the suit vide

C.S. No.209 of 2020) against the plaintiffs in the suit vide C.S.

No.209 of 2020 arraying them (plaintiffs) as Opp. Party Nos.1

and 2 and also arraying the defendant No.1 and 3 to 9 as

proforma Opp. Parties praying for setting aside the impugned

order of rejection to his petition under Order 7, Rule 11 read

with Section 151 of the CPC, 1908 passed on dated

31.01.2022 in the suit vide C.S. No.209 of 2020 by the

learned Senior Civil Judge, Odagaon.

2. The factual backgrounds of this Revision, which

promoted the petitioner (defendant No.2) for filing of the same

is that, the Opp. Party Nos.1 and 2 in this Revision being the

plaintiffs filed the suit vide C.S. No.209 of 2020 in the Court of

learned Senior Civil Judge, Odagaon against the defendants

(petitioner and Opp. Party Nos.3 to 9 in this Revision) praying

for partition, declaration and permanent injunction.

The defendant No.2 (petitioner in this revision) filed a

petition on dated 03.02.2021 under Order 7, Rule 11 read

with Section 151 of the CPC, 1908 in that suit vide C.S.

No.209 of 2020 praying for rejection of the plaint of the

plaintiffs (Opp. Party Nos.1 and 2) on the ground that, the suit

is barred by res judicata, because, in the earlier suit and first

appeal vide C.S. No.9110 of 2015 and R.F.A. No.26 of 2004

respectively, the properties of the present suit vide C.S.

No.209 of 2020 were the subject matter in the earlier suit and

first appeal vide C.S. No.9110 of 2015 and R.F.A. No.26 of

2004 respectively and the earlier suit vide C.S. No.9110 of

2015 was withdrawn as per Order 23, Rule 1 read with

Section 151 of the CPC, 1908 passed by the order of the

learned Civil Judge, Sr. Division, Bhubaneswar and R.F.A.

No.26 of 2004 was decided by the learned ADJ, Nayagarh, for

which, the present suit vide C.S. No.209 of 2020 for the self-

same subject matter is not entertainable. Therefore, the plaint

of the present suit vide C.S. No.209 of 2020 is liable to be

rejected.

To which, the plaintiffs (Opp. Party Nos.1 and 2 in this

revision) objected stating that, the suit vide C.S. No.9110 of

2015 before the learned Civil Judge, Sr. Division,

Bhubaneswar was not for the same subject matter and the

parties in the said suit were different from the present suit.

The previous suit vide C.S. No.9110 of 2015 has not been

adjudicated, but the same was withdrawn at the desire of the

father of the plaintiffs and defendant No.1.

The matters involved in the present suit are required to

be adjudicated as per law. The principles of res judicata is not

applicable to the present suit vide C.S. No.209 of 2020. For

which, as per law, the plaint cannot be rejected. Therefore, the

petition under Order 7, Rule 11 read with Section 151 of the

CPC, 1908 filed by the defendant No.2 for rejection of the

plaint in the suit vide C.S. No.209 of 2020 is liable to be

rejected.

3. After hearing from both the sides, the learned Trial Court

rejected to the petition dated 03.02.2021 under Order 7, Rule

11 read with Section 151 of the CPC, 1908 of the defendant

No.2 assigning the reasons that,

"the entire subject matter, nature and parties of the earlier suit and appeal vide C.S. No.9110 of 2015 and R.F.A. No.26 of 2004 respectively

were not same with the present suit vide C.S. No.209 of 2020."

4. On being aggrieved with the said impugned order dated

31.01.2022 i.e. to the order of rejection to the petition under

Order 7, Rule 11 read with Section 151 of the CPC, 1908 of

the defendant No.2 passed in C.S. No.209 of 2020 by the

learned Senior Civil Judge, Odagaon, he (defendant No.2)

challenged the same by filing this Revision being the petitioner

against the plaintiffs arraying them (plaintiffs) as Opp. Party

Nos.1 and 2 and also arraying the defendant No.1 and

defendant Nos.3 to 9 as proforma Opp. Parties.

5. I have already heard from the learned counsel for the

petitioner (defendant No.2) and the learned counsel for the

Opp. Party Nos.1 and 2 (plaintiffs), as none appeared on

behalf of the other Opp. Parties (defendant Nos.1 and 3 to 9)

for participating in the hearing of this Revision.

6. When after going through the averments made in the

plaint of the plaintiffs and the Xerox copies of the documents

and orders relating to the earlier suit and appeal vide C.S.

No.9110 of 2015 and R.F.A. No.26 of 2004, the learned Trial

Court has rejected to the petition dated 03.02.2021 under

Order 7, Rule 11 read with Section 151 of the CPC, 1908 of

the defendant No.2 (petitioner in this Revision) through the

impugned order dated 31.01.2022 assigning the reasons that,

the subject matter, nature and parties in the earlier suit vide

C.S. No.9110 of 2015 and R.F.A. No.26 of 2004 are not same

with the present suit vide C.S. No.209 of 2020 and the matters

involved in the present suit vide C.S. No.209 of 2020 are

adjudiciable, then, at this juncture, the question of interfering

with the impugned order through this Revision filed by the

petitioner (defendant No.2) does not arise.

The conclusion drawn above finds support from the ratio

of the following decisions:

I. In a case between Srihari Hanumandas Totala Vs. Hemant Vithal Kamat & Others reported in (2021) 9 SCC 99 that, plaint in subsequent suit cannot rejected on ground that it is barred by principles of res judicata as same will require production of pleadings, issues framed and judgment in previous suit, to compare it with present suit and that cannot be done for deciding an application under Order 7, Rule 11(d), as only the averments in the paint itself may be considered at this stage. The same can only be determined upon trial of the suit as

only the averments in the plaint itself may be considered at this stage.

II. In a case between Tek Chand & Another Vs. Kimtu Devi & Others reported in 2024 (3) Civ.C.C. 667 (HP) (DB) that, plaint cannot be rejected on a plea of Res Judicata raised by defendants, because, adjudication of plea of Res Judicata requires consideration of pleadings, issues and the decision in the previous suit, which cannot be done in an application under Order 7, Rule 11 of the CPC, 1908.

III. In a case between Shashi Kumar Prabhune & Others Vs. Dr. Sanjay Prabhune & Others reported in 2025 (4) Civ.C.C. 53 (Raj.) that, grounds of Res Judicata and cause of action would be decided after evidence of parties. Plaint cannot be rejected. (para No.7) IV. In a case between Smt. Omwati & Others Vs. Raghubar Singh Yadav & Others reported in 2021 (1) Civ.C.C. 22 (Allh.) that, any question which requires to be decided on the basis of evidence of parties, cannot be basis for rejecting a plaint. (Para No.17) V. In a case between Usha Rai & Another Vs. Sanskrit Pathsala Samiti, Pipariya reported in 2024 (3) Civ.L.J. 424 (MP) that, issue of "Res Judicata" is a mixed question of law and fact and should be decided after recording of evidence of parties.

7. When the petition dated 03.02.2021 of the petitioner

(defendant No.2) under Order 7, Rule 11 read with Section

151 of the CPC, 1908 for rejection of the plaint of the plaintiffs

on the ground of Res Judicata has been rejected by the

learned Trial Court through the impugned order and when as

per the ratio of the above decisions, the above ground raised

by the defendant No.2 (petitioner in this revision) for rejection

of plaint can be decided on the basis of the evidence of the

parties, then, at this juncture, the ends of justice can bestly

be served, if this revision filed by the petitioner (defendant

No.2) shall be disposed of finally being dismissed by giving

liberty to the defendant No.2 to raise the ground of Res