Kolipaka Sree Vishnu, vs Kolipaka Laxmi,

Telangana High Court

Kolipaka Sree Vishnu, vs Kolipaka Laxmi, on 25 January, 2024

Author: K. Lakshman

Bench: K. Lakshman

              HON'BLE SRI JUSTICE K. LAKSHMAN

          CIVIL REVISION PETITION No.3369 OF 2023
ORDER:

Heard Mr. C.A.R. Seshagiri Rao, learned counsel for the

petitioner and Mr. Dharmesh D.K. Jaiswal, learned counsel for

respondent No.1 - plaintiff.

2. The present Civil Revision Petition is filed challenging the

order dated 07.06.2023 in I.A. No.339 of 2021 in O.S. No.07 of 2021

passed by the Principal Senior Civil Judge at Hanumakonda,

dismissing the petition filed under Order - VII, Rule 11 read with 151

of CPC.

3. The petitioner herein is defendant No.22 while respondent

No.1 is the plaintiff and respondent Nos.2 to 35 are the remaining

defendants.

4. For the sake of convenience, the parties hereinafter will be

referred to as arrayed in O.S. No.7 of 2021.

5. The Plaintiff filed the aforesaid suit against the defendants

seeking partition of the suit schedule property. While so, defendant

Nos.1 and 22 to 24 filed an application vide I.A. No.339 of 2021 in 2

O.S. No.7 of 2021 under Order - VII, Rule 11 read with Section 151

of CPC to reject the plaint on the following grounds:

i) The suit is barred by limitation;

ii) The plaint averments do not disclose the cause of action;

iii) The decree in O.S. No.86 of 1970 was a compromise decree

and, therefore, there cannot be a second suit for partition of the same

properties after lapse of 50 years and it operates res judicata.

6. Defendant Nos.25 to 28 filed their counter supporting the

contention of defendant Nos.1 and 22 to 24.

7. Plaintiff herein filed counter contending that the suit schedule

property is not a subject matter of earlier suit and the final decree in

I.A. No.85 of 1971 in O.S. No.86 of 1970. The suit schedule property

is in joint possession and enjoyment of the parties to the suit.

8. Defendant Nos.5 and 6 filed counter on the very same lines

of the plaintiff.

9. After hearing both sides, vide order 07.06.2023, trial Court

dismissed I.A.No.339 of 2021 holding that the suit schedule property

in the present suit is not part and parcel of the earlier suit, that there is

a cause of action to file the suit and it is within the limitation. 3

10. Challenging the said order dated 07.06.2023 defendant

No.22 filed the present revision on the following grounds:

i) The trial Court erred in giving a finding that present suit

schedule property was not included in the earlier suit;

ii) The trial Court failed to appreciate the grounds raised by the

petitioner herein /defendant No.22 in its entirety;

iii) The impugned order is not based on consideration of facts

and law;

11. Sri C.A.R. Seshagiri Rao, learned counsel for the petitioner

herein/defendant No.22 would contend that the trial Court failed to

observe that the siblings of plaintiff's father already filed a suit for

partition and separate possession of the joint family properties in

O.S.No.86 of 1970, the same was decreed in terms of compromise

arrived between the parties. A Final decree was passed on 15.02.1971

and the same attained finality. Therefore, re-partition of the

partitioned property cannot be permitted and the same cannot be

reopened after 50 years. The lis in the present suit is purely of fact

having been decided in earlier proceedings by a competent Court,

must, in a subsequent litigation between the parties be recorded as

finally decided and cannot be re-opened and more particularly, when 4

the partition of ancestral joint family properties having been found to

have taken place 50 years back. The trial Court failed to appreciate

that where a plaintiff omits to sue in respect of, or intentionally

relinquishes, any portion of his claim, he shall not afterwards sue in

respect of the portion so omitted or relinquishes. The trial Court

failed to presume that the present suit schedule property was not

included in the earlier suit. There is no pleading to the said effect. A

consent decree is binding upon the parties thereto as a decree passed

by invitum. The compromise having been found not to be vitiated by

fraud, misrepresentation, misunderstanding or mistake, has the

binding force and operates as a res judicata and a person is barred

from re-agitating the issue. The trial court failed to consider pleadings

in their entirety and dismissed the application filed by the petitioner

under Order VII Rule 11 of CPC to reject the very plaint itself. The

trial Court failed to appreciate that mere stray pleading in the plaint

that the demand for partition was made in the year 2020 and that the

same was not responded to, cannot be believed in the absence of any

proof. The observation of the learned trial Court that the question of

limitation is a mixed question of law and fact and that would be

considered on conducting full fledged trial, cannot be permitted. He 5

places reliance on the principle laid down by a 3 Judge Bench of the

Apex Court in Shankar Sitaram Sontakke vs. Balkrishna Sitaram

Sontakke 1, a 5 Judge Bench of Apex Court in Shailendra Narayan

Bhanja Deo vs. The State of Orissa 2, the Bombay High Court in

SNP Shipping Services Pvt.Ltd. vs. World Tanker Carrier

Corporation 3 and a Division Bench of the then High Court of

Andhra Pradesh in Indira Bai Patel vs. B.A.Patel 4. With the said

submissions, he sought to set aside the impugned order.

12. Whereas, Sri Dharmesh D.K. Jaiswal, learned counsel for

plaintiff would contend that the trial Court on consideration of entire

pleadings, cause of action, lis involved in the present suit, lis decided

in the earlier suit and also Section 11 of CPC, dismissed the

I.A.No.339 of 2021 filed by the petitioner herein under Order VII

Rule 11 of CPC to reject the plaint. The trial Court also relied on the

principle laid down by the Apex court in several judgments. All the

grounds on which the plaint sought to be rejected are triable issues.

The impugned order is a reasoned order and well founded. There is no

error in it. He has also placed reliance on the principle laid down by

1 AIR 1954 SC 352 2 AIR 1956 SC 346 3 AIR 2000 Bombay 34 4 AIR 1974 AP 303 6

the Apex Court in Kamala vs. K.T.Eshwara Sa 5, in Srihari

Hanumandas Totala vs. Hemant Vithal Kamat 6 and in K.Armuga

Velaiah vs. P.R.Ramasamy 7.

FINDINGS OF THE COURT:-

13. it is not in dispute that the suit schedule properties in

O.S.No.86 of 1970 and suit schedule property in the present suit

originally belongs to late Kullipaka Sree Rama Rao. He died leaving 5

sons i.e. Late Laxmikantha Rao, late Prakash Rao, Late Babu Rao,

Late Sugunakar Rao and Late Prabhakar Rao. The plaintiff and

defendant Nos. 20 and 21 are children of late Kolipaka Prabhakar

Rao. The plaintiff's father has filed a suit vide O.S.No.86 of 1970 for

partition against his brothers. The same was ended in compromise.

Final decree was passed on 15.02.1971. According to the petitioner

herein, the same was acted upon.

14. It is the specific contention of the plaintiff herein is that the

suit schedule property i.e. land admeasuring Ac.3.03guntas in

Sy.No.471 situated at Waddepally Village, Hanamkonda Mandal,

Warangal Urban District is not included in the earlier suit i.e.

5 (2008) 12 SCC 661 6 (2021) 9 SCC 99 7 (2022) 0 Supreme (SC) 66 7

O.S.No.86 of 1970. After the death of late Kollipaka Sri Rama Rao, at

the instance of defendant No.1 i.e. Late Kollipaka Sugunakar Rao and

on his information, father of the plaintiff, namely Kollipaka Prabhakar

Rao has filed a suit for partition. 1st defendant was practicing

Advocate at the relevant time and having more knowledge about the

ancestral properties and records. Believing the same, all the brothers

including father of the plaintiff have settled their shares in the

schedule properties of the said suit. Pursuant to the final decree dated

15.02.1971 in O.S.No.86 of 1970, all the parties to the suit were

inducted into their respective shares. Some of the parties have also

alienated their respective shares of properties to third parties.

15. It is further contended by the plaintiff that recently it came

to her knowledge that 1st defendant had intentionally furnished the

false information in respect of the extents of the ancestral properties of

her father and got filed the suit O.S.No.86 of 1970, thereby partition

was effected only to the extents reflected in the said suit. The land

covered by Sy.No.471 (new) (old Sy.Nos. 492, 493, 494, 495, 496,

and 497) of Waddepally Village, Hanamkonda Mandal, Warangal

Urban District is Ac.12-38guntas. Whereas, only Ac.9.35gutas was

mentioned in the earlier suit. Therefore, difference in extent of land is 8

Ac.3.03guntas in Sy.No.421. The same was remained undivided and

the same was in joint possession of the plaintiff and defendants

Nos.21. The details of the same was also mentioned in paragraph No.6

of the plaint.

16. It is also contended by the plaintiff that in the process of

amalgamation of said survey numbers, the land to an extent of

Ac.12.38guntas was allotted to Sy.No.471, which is the new number

allotted for old survey numbers 492, 493, 494, 495, 496 and 497 of

Waddepally Village. Since the lesser extent was recorded in old

survey numbers as Ac.9.35guntas, the same was rectified after due

survey and measurement and an extent of Ac.12.38guntas was shown

in Sy.No.471, thereby the extent covered by the old survey numbers

was rectified and merged in new survey number i.e. 471 to an extent

of Ac.12.38guntas. Accordingly, the land to an extent of

Ac.3.03guntas was very much available in Sy.No.471 of Waddepally

i.e. the new survey number allotted to 492, 493, 494, 495, 496 and 497

of Waddepally. The same is evident from revenue record. The suit

schedule property in the present suit is not the suit schedule property

in the earlier suit. Therefore, according to her, 1st defendant played 9

mischief. Therefore, she has approached 1st respondent for partition.

The same was not accepted. Therefore, she filed the present suit.

17. The petitioner herein/defendant No.22, defendant No.1 and

23 and 24 have filed I.A.No.339 of 2021 in O.S.No.7 of 2021 under

Order VII Rule 11 ('a' to 'd') read with Section 151 of CPC to reject

the plaint, on the aforesaid grounds i.e. plaint does not disclose cause

of action, it is hopelessly barred by limitation and lis in the present

suit is hit by res judicata. The same was opposed by defendants 25,

26, 27 and 28 on the ground that the grounds on which the petitioner

and others sought to reject the plaint are triable issues and the same

can be considered only on conducting full fledged trial.

18. Sri C.A.R. Seshagiri Rao, learned counsel for the petitioner

would contend that the father of the plaintiff earlier obtained final

decree dated 15.02.1971 in O.S.No.86 of 1970. It is a compromise

decree. Therefore, she cannot file the present suit after lapse of 50

years. The contention of the plaintiff that the suit schedule property is

not covered by earlier decree is untenable.

19. He has also placed reliance on the memo vide RC

No.A2/959/2023 dated 04.01.2023 issued by the Assistant Director,

District Survey and Land Record, Hanumakonda. The earlier survey 10

numbers were amalgamated and new survey numbers is 471. The total

extent is Ac.10.17gunts. Even then, the plaintiff herein has filed the

present suit after lapse of 50 years. He has also filed a copy of final

decree dated 15.02.1971. The aforesaid facts would reveal that

according to the petitioner herein/D.22, the lis involved in the present

suit is hopelessly barred by limitation, there is no cause of action and

the lis in the present suit is hit by res judicata.

20. Order VII Rule 11 of CPC deals with rejection of plaint and

the same is extracted below:-

11. Rejection of plaint.-

The plaint shall be rejected in the following cases:-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where plaintiff fails to comply with the provisions of rule 9:

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp- paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.

21. Section 11 of CPC deals with res judicata. There is no

dispute with regard to legal position that limitation is a mixed question

of fact and law.

22. In the plaint, respondent/plaintiff has specifically stated that

she came to know about the extent of Sy.No.471 recently and the

defendant No.1, her paternal uncle has not disclosed the suit schedule

property in the earlier suit. 1st defendant played fraud on the father of

the plaintiff by intentionally furnishing false information with regard

to extents of land of ancestral properties. The extent mentioned in the

earlier suit was Ac.9.35gunts in stead of Ac.12.38guntas. Therefore,

Ac.3.03guntas in Sy.No.471 i.e. suit schedule property in the present

suit was not included in the earlier suit. Thus, according to her, 1st

defendant played mischief. Therefore, she approached 1st respondent

and demanded for partition on 15.02.2020. She has mentioned cause

of action specifically in paragraph No.22 of the plaint. Therefore, she

has filed the present suit in the year 2021. Therefore, the aforesaid 12

aspect of limitation is a mixed question of law and fact, which will be

decided on conducting full -fledged trial. On the said ground, plaint

cannot be rejected.

23. According to the petitioner herein, plaintiff failed to

mention cause of action. As discussed supra, in paragraph No.22 of

the plaint, the plaintiff specifically mentioned about cause of action

which includes bundle of facts. The averments of the plaint have to be

considered for rejection of plaint on the ground of lack of cause of

action. The defence or the contents of the written statement cannot be

considered for the said purpose. The said aspect was considered by the

trial Court in the impugned order.

24. With regard to res judicata, it is the specific case of the

plaintiff that there is difference in extent in Sy.No.471 of Waddepally

village. In the earlier suit an extent of Ac.9.35guntas was mentioned in

stead of Ac.12.38guntas. The said extent of Ac.3.03guntas in

Sy.No.471 of Waddepally was not included in the earlier suit

O.S.No.86 of 1970. Even according to her, 1st defendant intentionally

failed to furnish the said extent correctly to the father of the plaintiff.

According to her, 1st defendant played fraud.

25. According to the petitioner, the suit schedule property in

the present suit is included in the earlier suit. Plaintiff cannot file the

present suit after 50 years. The said aspects i.e. whether the total

extent of Sy.No.471 of Waddepally Village is Ac.9.35guntas or

Ac.12.38 guntas is a question of fact. Even amalgamation of survey

numbers is also a question of fact. The same cannot be considered in a

petition filed by the petitioner under Order VII Rule 11 of CPC for

rejecting the plaint. The said aspect can be considered only on

conducting full fledged trial.

26. On consideration of the said aspects, the trial court

dismissed I.A. filed by the petitioner herein. Trial Court rightly

observed that if the plaintiff pleads about the validity of the

compromise decree for the same extent, then the principles of res

judicata and Order II Rule 2 will be applicable. The plaintiff is

claiming the land which is not included in the earlier suit. Admittedly,

the suit schedule properties originally belong to late Kollipaka Sri

Rama Rao. He died leaving behind five sons i.e. Late Laxmikantha

Rao, late Prakash Rao, Late Babu Rao, Suunakar Rao and Late

Prabhakar Rao. There is no error in the said finding of the trial Court. 14

27. In SNP Shipping Services Pvt.Ltd. (supra), Bombay High

Court considered the relinquishment of a relief with the permission to

seek it in subsequent suit. Permission has to be obtained from Court

trying earlier suit, cannot be granted in subsequent suit by accepting

statement of plaintiff that they have selected to press the relief in the

subsequent suit rather than earlier suit. The earlier suit of the plaintiff

is bound by the terms of compromise and consequent decree falling

upon it. Thus, the Apex Court held that the plaint is barred by

limitation for re-adjudicating the question in the present suit.

28. Whereas, in the present case, the facts are slightly different.

According to the plaintiff herein, the suit schedule property is not

subject matter of earlier suit. There is difference in extent of land.

Therefore, the same are triable issues and on the said ground the plaint

cannot be rejected.

29. In Shailendra Narayan Bhanja Deo (supra), the Apex

Court on consideration of Section 11 of CPC, Order XXIII Rule 3 of

CPC and on examination of the facts therein held that a judgment by

consent is intended to put a stop to litigation between the parties just

as much as is a judgment which results from the decision of the Court 15

after the matter has been fought out to the end. In the present case the

facts are altogether different.

30. In Indira Bai Patel (supra), a Division bench of Andhra

Pradesh High Court held that the principles of res judicata will not

apply to the case of a consent decree. As discussed supra, in the

present case, the facts are slightly different. The plaintiff is claiming

that suit schedule property is not included in the earlier suit. There is

difference of extent. Therefore, the lis in the present suit does not hit

by res judicata. The same are factual aspects and will be decided on

conducting full fledged trial.

31. In Kamala (supra), the Apex Court held that what would,

however, be the effect of a partition suit which had not been taken to

its logical conclusion by getting the properties partitioned by metes

and bounds is a question which cannot be gone into in a proceeding

under Order VII, Rule 11(d) of the Code. Whether any property is

available for partition is itself a question of fact. Whether the

properties mentioned in the plaint are available for partition is

essentially a question of fact. Whether an order of injunction was

obtained on the basis of a misleading statement in the earlier suit or 16

whether they were entitled therefor are not the questions which can be

gone into at this stage.

32. In the said case, it was contended that some lands have been

acquired by the Bangalore Development Authority. The Apex Court

held that in whose favour the awards were made and even if

somebody has received the awarded amount, what would be the effect

thereof will be considered during trial. The said aspects cannot be

considered in a petition filed under Order VII Rule 11 (d) of CPC. The

Apex Court also considered the suppression of fact. If there is

suppression of fact on the part of the plaintiff, the effect of the said

suppression of fact has to be determined. Such suppression of fact is a

question of fact which requires further probe during trial. It can not be

considered on a petition under Order VII Rule 11 of CPC.

33. In Liverpool & London S.P. & I Association Ltd. v. M.V.

Sea Success I 8 the Apex Court held as follows:-

133. "The idea underlying Order 7 Rule 11(a) is that when no cause of action is disclosed, the courts will not unnecessarily protract the hearing of a suit. Having regard to the changes in the legislative policy as adumbrated by the amendments carried out in the Code of Civil Procedure, the courts would interpret provisions in such a manner so as to save expenses, achieve expedition and avoid the court's resources being used up on cases which will serve no useful purpose. A litigation which in the opinion of the court is doomed to fail would not further be allowed to be used as a device

8 (2004) 9 SCC 512 17

to harass a litigant. [See Azhar Hussain v. Rajiv Gandhi (1986) Supp SCC 315" at pp. 324-35]"

139. "Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed."

34. In C.Natarajan vs. Ashim Bai 9, the Apex Court held as

follows:-

"An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence. {See [Popat and Kotecha Property v. State Bank of India Staff Association [(2005) 7 SCC 510]}"

35. In Papat and Kotecha Property vs. SBI Staff

Association 10, the question which arose for consideration was as to

whether the suit was barred by limitation. In paragraph Nos.22 and 23

are relevant and the same are extracted below:-

"22. There is distinction between "material facts" and "particulars".

The words "material facts" show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. The distinction which has been made between "material facts" and "particulars" was brought by Scott, L.J. in Bruce v. Odhams Press Ltd.

9 (2007) 14 SCC 183 10 (1936) I KB 697 18

23. Rule 11 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word "shall" is used clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13."

Thus, the Apex Court opined that the question of facts were to be

determined.

36. Balasaria Construction (P) Ltd (2) vs. Hanuman Seva

Trust 11, the Apex Court held as follows:-

"8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure."

37. K.Armuga Velaiah (supra), Paragraph No.30 is relevant

and the same is extracted below:-

(2006) 5 SCC 658 19

30. In this context, following judgments could be cited with regard to the operation of the principles of res judicata in respect to the previous proceeding and judgment:

a) In Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B. Jeejeebhoy (AIR 1971 SC 2355), it was observed as under:

"10. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in Section 11 of the Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land."

b) In Mohanlal Goenka v. Benoy Kishna Mukherjee (AIR 1953 SC 65), the second round of litigation was admittedly in respect of same property and between the same parties, after the earlier litigation had attained finality even up to the stage of execution. It was held that later on the judgment debtor was precluded from raising the plea of jurisdiction in view of principles of constructive res judicata. In Paragraph 23 it was as under :

"23. There is ample authority for the proposition that even an erroneous decision on a question of law operates as 'res judicata' between the parties to it. The correctness or 20

otherwise of a judicial decision has no bearing upon the question whether or not it operates as 'res judicata."

c) In State of West Bengal v. Hemant Kumar Bhattacharjee (AIR 1966 SC 1061), the main issue related to the Special Court to try a Criminal offence, in asmuch as an incorrect decision cannot be equated with a decision rendered without jurisdiction. Even a wrong decision can be superseded only through appeals to higher tribunals or Courts or through review, if provided by law.

38. Considering the said judgments, the Apex Court held that

partition of ancestral/joint family properties having found to have

been taken place in 1964 and the same having been acted upon, a

fresh suit for partition and separate possession of the suit properties is

not at all maintainable. The principle of res judicata squarely applies

to the present case.

39. In the said case, the facts were not in dispute. The lis

involved in the latter suit was decided in the earlier suit. According to

the plaintiff herein, the suit schedule property in the present suit was

not included in the earlier suit and the same was not decided.

Therefore, plaint cannot be rejected on the ground of res judicata.

40. In Srihari Hanumandas Totala (supra), the paragraphs 18

and 25 (1 to 4) are relevant and the same are extracted below:- ---

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 21

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. Saravanabava5 discussed the plea of res judicata and the particulars that would be required to prove 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.

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).

25. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarized as follows:

25.1. To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to;

25.2. The defense made by the defendant in the suit must not be considered while deciding the merits of the application;

25.3. To determine whether a suit is barred by res judicata, it is necessary that

(i) the 'previous suit' is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and

25.4. Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the 'previous suit', such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.

41. In the light of the aforesaid principle laid down by the Apex

Court, as discussed supra, the facts in the present case are different.

According to the plaintiff, the suit schedule property i.e. the land

admeasuring Ac.3.03guntas in Sy.No.471 was not included in the

earlier suit. The said aspect was not even decided. There is excess land

in Sy.No.471. In the earlier suit only land admeasuring Ac.9.35 guntas

was included but actual extent of Sy.No.471 is Ac.12.35guntas. The

said aspects are factual aspects and are triable issues. The same will

be considered only on conducting full -fledged trial. On the said

grounds, the plaint cannot be rejected at the threshold.

42. The said aspects were considered by the trial Court in the

impugned order. It is a reasoned order. It does not require interference 23