Punjab-Haryana High Court
Arun Kaushal vs Jang Bahadur And Others on 18 September, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
CR-5426-2024 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-5426-2024 (O&M)
Date of Decision: 18.09.2024
Arun Kaushal ...... Petitioner
Versus
Jang Bahadur and others ......... Respondents
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present : Mr. Mayank Mathur, Advocate,
for the petitioner.
*****
PANKAJ JAIN, J. (ORAL)
1. Prayer is for setting aside order dated 10.07.2024 passed by
learned Civil Judge (Junior Division), Patiala, whereby application under
Order 7 Rule 11 CPC filed by the petitioner/defendant No.1 seeking
rejection of the plaint has been dismissed.
2. Plaintiff filed a suit for declaration claiming that his father
namely Som Nath Kaushal is missing since 11.10.2017. The General Power
of Attorney dated 15.03.2011 executed by Som Nath Kaushal in favour of
defendant No.1 and the sale deeds executed by defendant No.1 acting as
Power of Attorney of Som Nath Kaushal are result of fraud and are forged
documents. Further prayer was for grant of permanent injunction restraining
the defendants from alienating and transferring the property as described
under the head-note of the plaint. Further defendant No.1 filed an application
under Order 7 Rule 11 CPC claiming that the suit was filed before the Court
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which has no jurisdiction to try and entertain the same as the properties are
situated within the jurisdiction of Sub-Divisional Courts at Rajpura and at
Ambala and thus, Court at Patiala has no jurisdiction to try the suit.
3. Further it was claimed that Som Nath Kaushal himself earlier
filed a petition under the Maintenance and Welfare of Parents and Senior
Citizenship Act, 2007, which already stands decided by a forum of
competent jurisdiction vide order dated 27.04.2017 on the basis of
compromise between the parties and thus, the present suit was barred by res
judicata. Further ground pleaded in the application was with respect to
deficiency in the Court fee. It was claimed that the plaintiff has challenged
the sale deeds and has not affixed the ad volorem Court fee on the value of
the property. Trial Court vide impugned order dismissed the application
holding that the issue of jurisdiction cannot invoke the jurisdiction of claim.
So far as the plea of res judicata is concerned, the same being pure question
of fact, cannot be determined without there being evidence on the record. So
far as deficiency in the Court fee is concerned, trial Court opined that Power
of Attroney has been challenged on the ground of fraud. Plaintiff is not
executant of the sale deed and has not claimed possession thus, he was not
required to pay ad valorem Court fee.
4. Learned counsel for the petitioner while assailing the impugned
order has drawn attention of this Court to the application dated 25.05.2022,
placed on record as Annexure P-9, whereby the plaintiff himself admitted
that the suit has been filed before the Court, which had no jurisdiction to try
CR-5426-2024 (O&M) -3-
the same. Mr. Mathur further submits that from the reading of the plaint in
its entirety, it is evident that plaintiff is seeking cancellation of the sale deeds
and merely by clever drafting, he cannot be blamed to pay ad valorem Court
fee. He further submits that in view of the fact that Som Nath Kaushal
during his life time challenged the sale deeds and the Power of Attorney
invoking provisions of Maintenance and Welfare of Parents and Senior
Citizenship Act, 2007, before the competent authority and the matter having
been compromised, the present suit would be barred by principle of res
judicata.
5. I have heard learned counsel for the petitioner and carefully
gone through the record.
6. So far as the plea with respect to the suit being barred by res
judicata is concerned, I do not find any reason to interfere in the findings of
the trial Court. It is that doctrine of res judicata is pure question of fact and
the same cannot be ascertained at a later stage of the suit. It is only after
both the parties have adduced their evidence, the Court can ascertain
whether suit is barred by res judicata or not. Otherwise also, in order to
decide an application under Order 7 Rule 11 CPC, the Court has to evaluate
the plaint only. In whole of the plaint, there is no such averment from which
it can be held that the suit is barred by res judicata. Reference can be made
to Srihari Hanumandas Totala Vs. Hemant Vithal Kamat and others,
2021(9) SCC 99.
"16. Order 7 Rule 11(d) of CPC provides that the plaint shall
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be rejected "where the suit appears from the statement in the
plaint to be barred by any law". Hence, in order to decide
whether the suit is barred by any law, it is the statement in the
plaint which will have to be construed. The Court while
deciding such an application must have due regard only to the
statements in the plaint. Whether the suit is barred by any law
must be determined from the statements in the plaint and it is
not open to decide the issue on the basis of any other material
including the written statement in the case. Before proceeding
to refer to precedents on the interpretation of Order 7 Rule
11(d) CPC, we find it imperative to refer to Section 11 of CPC
which defines res judicata:
"11. Res judicata.--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
raised, and has been heard and finally decided by such
Court."
17. Section 11 of the CPC enunciates the rule of res
judicata: a court shall not try any suit or issue in which the
matter that is directly in issue has been directly or indirectly
heard and decided in a 'former suit'. Therefore, for the purpose
of adjudicating on the issue of res judicata it is necessary that
the same issue (that is raised in the suit) has been adjudicated
in the former suit. It is necessary that we refer to the exercise
taken up by this Court while adjudicating on res judicata,
before referring to res judicata as a ground for rejection of the
plaint under Order 7 Rule 11. Justice R C Lahoti (as the
learned Chief Justice then was), speaking for a two Judge
bench in V. Rajeshwari v. T.C. Saravanabava (2004) 1 SCC
551 discussed the plea of res judicata and the particulars that
would be required to prove the plea. The court held that it is
discussed the plea of res judicata and the particulars that
would be required to provide the plea. The court held that it is
necessary to refer to the copies of the pleadings, issues and the
judgment of the 'former suit' while adjudicating on the plea of
res judicata:
"11. The rule of res judicata does not strike at the root of
the jurisdiction of the court trying the subsequent suit. It
is a rule of estoppel by judgment based on the public
policy that there should be a finality to litigation and no
one should be vexed twice for the same cause.
CR-5426-2024 (O&M) -5-
13. Not only the plea has to be taken, it has to be
substantiated by producing the copies of the pleadings,
issues and judgment in the previous case. Maybe, in a
given case only copy of judgment in previous suit is filed
in proof of plea of res judicata and the judgment
contains exhaustive or in requisite details the statement
of pleadings and the issues which may be taken as
enough proof. But as pointed out in Syed Mohd. Salie
Labbai v. Mohd. Hanifa [(1976) 4 SCC 780] the basic
method to decide the question of res judicata is first to
determine the case of the parties as put forward in their
respective pleadings of their previous suit and then to
find out as to what had been decided by the judgment
which operates as res judicata. It is risky to speculate
about the pleadings merely by a summary of recitals of
the allegations made in the pleadings mentioned in the
judgment. The Constitution Bench in Gurbux Singh v.
Bhooralal [AIR 1964 SC 1810 : (1964) 7 SCR 831]
placing on a par the plea of res judicata and the plea of
estoppel under Order 2 Rule 2 of the Code of Civil
Procedure, held that proof of the plaint in the previous
suit which is set to create the bar, ought to be brought on
record. The plea is basically founded on the identity of
the cause of action in the two suits and, therefore, it is
necessary for the defence which raises the bar to
establish the cause of action in the previous suit. Such
pleas cannot be left to be determined by mere
speculation or inferring by a process of deduction what
were the facts stated in the previous pleadings. Their
Lordships of the Privy Council in Kali Krishna Tagore
v. Secy. of State for India in Council [(1887-88) 15 IA
186 : ILR 16 Cal 173] pointed out that the plea of res
judicata cannot be determined without ascertaining what
were the matters in issue in the previous suit and what
was heard and decided. Needless to say, these can be
found out only by looking into the pleadings, the issues
and the judgment in the previous suit."
(emphasis supplied)
18. At this stage, it would be necessary to refer to the
decisions that particularly deal with the question whether res
judicata can be the basis or ground for rejection of the
plaint. In Kamala & others v. KT Eshwara Sa (2008) 12
SCC 661, the Trial Judge had allowed an application for
rejection of the plaint in a suit for partition and this was
affirmed by the High Court. Justice S B Sinha speaking for the
CR-5426-2024 (O&M) -6-
two judge bench examined the ambit of Order 7 Rule 11(d) of
the CPC and observed:
"21. Order 7 Rule 11(d) of the Code has limited
application. It must be shown that the suit is barred
under any law. Such a conclusion must be drawn from
the averments made in the plaint. Different clauses in
Order 7 Rule 11, in our opinion, should not be mixed up.
Whereas in a given case, an application for rejection of
the plaint may be filed on more than one ground
specified in various sub-clauses thereof, a clear finding
to that effect must be arrived at. What would be relevant
for invoking clause (d) of Order 7 Rule 11 of the Code
are the averments made in the plaint. For that purpose,
there cannot be any addition or subtraction. Absence of
jurisdiction on the part of a court can be invoked at
different stages and under different provisions of the
Code. Order 7 Rule 11 of the Code is one, Order 14 Rule
2 is another.
22. For the purpose of invoking Order 7 Rule 11(d) of
the Code, no amount of evidence can be looked into. The
issues on merit of the matter which may arise between
the parties would not be within the realm of the court at
that stage. All issues shall not be the subject-matter of an
order under the said provision."
(emphasis supplied)
The Court further held:
"23. The principles of res judicata, when attracted,
would bar another suit in view of Section 12 of the Code.
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 that stage.
24. It is one thing to say that the averments made in the
plaint on their face discloses no cause of action, but it is
another thing to say that although the same discloses a
cause of action, the same is barred by a law.
25. The decisions rendered by this Court as also by
various High Courts are not uniform in this behalf. But,
then the broad principle which can be culled out
therefrom is that the court at that stage would not
consider any evidence or enter into a disputed question
of fact or law. In the event, the jurisdiction of the court is
found to be barred by any law, meaning thereby, the
CR-5426-2024 (O&M) -7-
subject-matter thereof, the application for rejection of
plaint should be entertained."
(emphasis supplied)
The above view has been consistently followed in a line
of decisions of this Court. In Church of Christ
Charitable Trust & Educational Charitable Society v.
Ponniamman Educational Trust (2012) 8 SCC 706 ,
Justice P Sathasivam (as the learned Chief Justice then
was), speaking for a two judge Bench, observed that
"10. [...] It is clear from the above that where the plaint
does not disclose a cause of action, the relief claimed is
undervalued and not corrected within the time allowed
by the court, insufficiently stamped and not rectified
within the time fixed by the court, barred by any law,
failed to enclose the required copies and the plaintiff
fails to comply with the provisions of Rule 9, the court
has no other option except to reject the same. A reading
of the above provision also makes it clear that power
under Order 7 Rule 11 of the Code can be exercised at
any stage of the suit either before registering the plaint
or after the issuance of summons to the defendants or at
any time before the conclusion of the trial.
11. This position was explained by this Court in Saleem
Bhai v. State of Maharashtra [(2003) 1 SCC 557], in
which, while considering Order 7 Rule 11 of the Code, it
was held as under: (SCC p. 560, para 9)
"9. A perusal of Order 7 Rule 11 CPC makes it clear
that the relevant facts which need to be looked into for
deciding an application thereunder are the averments in
the plaint. The trial court can exercise the power
under Order 7 Rule 11 CPC at any stage of the suit--
before registering the plaint or after issuing summons to
the defendant at any time before the conclusion of the
trial. For the purposes of deciding an application under
clauses (a) and (d) of Rule 11 of Order 7 CPC, the
averments in the plaint are germane; the pleas taken by
the defendant in the written statement would be wholly
irrelevant at that stage, therefore, a direction to file the
written statement without deciding the application
under Order 7 Rule 11 CPC cannot but be procedural
irregularity touching the exercise of jurisdiction by the
trial court."
It is clear that in order to consider Order 7 Rule 11, the
court has to look into the averments in the plaint and the
same can be exercised by the trial court at any stage of
CR-5426-2024 (O&M) -8-
the suit. It is also clear that the averments in the written
statement are immaterial and it is the duty of the Court
to scrutinize the averments/pleas in the plaint. In other
words, what needs to be looked into in deciding such an
application are the averments in the plaint. At that stage,
the pleas taken by the defendant in the written statement
are wholly irrelevant and the matter is to be decided only
on the plaint averments. These principles have been
reiterated in Raptakos Brett & Co. Ltd. v. Ganesh
Property [(1998) 7 SCC 184] and Mayar (H.K.) Ltd.
v. Vessel M.V. Fortune Express [(2006) 3 SCC 100]."
Similarly, in Soumitra Kumar Sen (supra), an application was
moved under Order 7 Rule 11 of the CPC claiming rejection of
the plaint on the ground that the suit was barred by res
judicata. The Trial Judge dismissed the application and the
judgement of the Trial Court was affirmed in revision by the
High Court. Justice AK Sikri, while affirming the judgment of
the High Court held:
"9. In the first instance, it can be seen that insofar as
relief of permanent and mandatory injunction is
concerned that is based on a different cause of action. At
the same time that kind of relief can be considered by the
trial court only if the plaintiff is able to establish his
locus standi to bring such a suit. If the averments made
by the appellant in their written statement are correct,
such a suit may not be maintainable inasmuch as, as per
the appellant it has already been decided in the previous
two suits that Respondent 1-plaintiff retired from the
partnership firm much earlier, after taking his share and
it is the appellant (or appellant and Respondent 2) who
are entitled to manage the affairs of M/s Sen Industries.
However, at this stage, as rightly pointed out by the High
Court, the defense in the written statement cannot be
gone into. One has to only look into the plaint for the
purpose of deciding application under Order 7 Rule 11
CPC. It is possible that in a cleverly drafted plaint, the
plaintiff has not given the details about Suit No. 268 of
2008 which has been decided against him. He has totally
omitted to mention about Suit No. 103 of 1995, the
judgment wherein has attained finality. In that sense, the
plaintiff-Respondent 1 may be guilty of suppression and
concealment, if the averments made by the appellant are
ultimately found to be correct. However, as per the
established principles of law, such a defense projected in
the written statement cannot be looked into while
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deciding application under Order 7 Rule 11 CPC."
Referring to Kamala (supra), the Court further observed that
"12. ... The appellant has mentioned about the earlier
two cases which were filed by Respondent 1 and wherein
he failed. These are judicial records. The appellant can
easily demonstrate the correctness of his averments by
filing certified copies of the pleadings in the earlier two
suits as well as copies of the judgments passed by the
courts in those proceedings. In fact, copies of the orders
passed in judgement and decree dated 31-3-1997 passed
by the Civil Judge (Junior Division), copy of the
judgment dated 31-3- 1998 passed by the Civil Judge
(Senior Division) upholding the decree passed by the
Civil Judge (Junior Division) as well as copy of the
judgment and decree dated 31-7-2014 passed by Civil
Judge, Junior Division in Suit No. 268 of 2008 are
placed on record by the appellant. While deciding the
first suit, the trial court gave a categorical finding that
as per MoU signed between the parties, Respondent 1
had accepted a sum of Rs 2,00,000 and, therefore, the
said suit was barred by principles of estoppel, waiver
and acquiescence. In a case like this, though recourse to
Order 7 Rule 11 CPC by the appellant was not
appropriate, at the same time, the trial court may, after
framing the issues, take up the issues which pertain to
the maintainability of the suit and decide the same in the
first instance. In this manner the appellant, or for that
matter the parties, can be absolved of unnecessary agony
of prolonged proceedings, in case the appellant is
ultimately found to be correct in his submissions."
(emphasis supplied)
While holding that "recourse to Order 7 Rule 11" by the
appellant was not appropriate, this Court observed that the
Trial Court may, after framing the issues, take up the issues
which pertain to the maintainability of the suit and decided
them in the first instance. The Court held that this course of
action would help the appellant avoid lengthy proceedings."
7. So far as the plea with respect to lack of jurisdiction of the
Court is concerned, Mr. Mathur has fairly agreed that even if the case of the
defendant is accepted, at the most, it would be a case of return of the plaint
CR-5426-2024 (O&M) -10-
and not rejection of the plaint.
8. Coming to the issue with regard to deficiency of Court fee, it
will be apt to peruse the prayer clause, which reads as under:-
"A. That the present revision petition may kindly be allowed,
the order dated 10.07.02024 (Annexure P-1) may kindly be
set aside and the plaint of respondent no. 1( Annexure P-6)
may kindly be rejected.
B. That the proceedings of the Ld. Trial Court may kindly be
stayed during the pendency of the present suit.
C. That the petitioner may kindly be exempted from filing the
certified copies of Annexure P-1 to Annexure P-10 and the
photocopies of the same may kindly be taken on record.
D. Pass any other order or direction in favour of the
petitioner which this Hon'ble Court may deem appropriate
in the peculiar facts and circumstances of the present
case."
9. The issue with respect to evaluation of the suit wherein sale
deed is subject matter of challenge has been well explained in the case of
Suhrid Singh @ Sardool Singh Vs. Randhir Singh and others, 2010 AIR
Supreme Court 2807. The Apex Court with the help of illustration has
explained the question. Operative part reads as under :-
"6. Where the executant of a deed wants it to be annulled, he has to
seek cancellation of the deed. But if a non-executant seeks
annulment of a deed, he has to seek a declaration that the deed is
invalid, or non-est, or illegal or that it is not binding on him. The
difference between a prayer for cancellation and declaration in
regard to a deed of transfer/conveyance, can be brought out by the
following illustration relating to `A' and `B' -- two brothers. `A'
executes a sale deed in favour of `C'. Subsequently `A' wants to
avoid the sale. `A' has to sue for cancellation of the deed. On the
other hand, if `B', who is not the executant of the deed, wants to
avoid it, he has to sue for a declaration that the deed executed by `A'
is invalid/void and non- est/ illegal and he is not bound by it. In
essence both may be suing to have the deed set aside or declared as
non-binding. But the form is different and court fee is also different.
If `A', the executant of the deed, seeks cancellation of the deed, he
has to pay ad-valorem court fee on the consideration stated in the
sale deed. If `B', who is a non-executant, is in possession and sues
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for a declaration that the deed is null or void and does not bind him
or his share, he has to merely pay a fixed court fee of Rs. 19.50
under Article 17(iii) of Second Schedule of the Act. But if `B', a non-
executant, is not in possession, and he seeks not only a declaration
that the sale deed is invalid, but also the consequential relief of
possession, he has to pay an ad-valorem court fee as provided under
Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for
a declaratory decree with consequential relief, the court fee shall be
computed according to the amount at which the relief sought is
valued in the plaint. The proviso thereto makes it clear that where
the suit for declaratory decree with consequential relief is with
reference to any property, such valuation shall not be less than the
value of the property calculated in the manner provided for by
clause (v) of Section 7."
10. Keeping in view that neither the plaintiff is executant of the sale
deed nor has sought possession, this Court finds that the case of the plaintiff
is squarely covered by the ratio of law laid down in Suhrid Singh @
Sardool Singh (supra). Being a non-executant, plaintiff can avoid the sale
deed and thus, is not required to afix ad valorum Court fee on the
value of the property.
11. In view of the above, finding no merits in the present case, the
same is hereby dismissed.
(PANKAJ JAIN)
JUDGE
18.09.2024
adhikari
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
