Summary
A plea of res judicata founded on an earlier ex parte decree cannot be decided on an application under Order VII Rule 11 CPC, because it requires examination of the pleadings, issues and decision in the former suit rather than the plaint alone. The Supreme Court set aside the rejection of the plaint and restored the suit for trial.
Issues
- Whether a plaint can be rejected under Order VII Rule 11 CPC on the ground that the suit is barred by res judicata by an earlier ex parte decree to which the plaintiff was not a party.
- Whether the trial court and the High Court were justified in rejecting the plaint without considering the plaintiff's averments of collusion, fraud and lack of territorial jurisdiction in the earlier suit.
Provisions considered
- Order VII Rule 11, Code of Civil Procedure, 1908On an application for rejection of the plaint the court may look only at the averments in the plaint and at most the documents filed with it; the defence cannot be considered. Since adjudicating res judicata needs the pleadings, issues and decision of the earlier suit, that plea falls outside the scope of Rule 11(d). The trial court had neither considered nor analysed the plaint and wrongly rejected it. (¶¶ 3, 8, 9, 10, 12)
- Article 227, Constitution of IndiaThe High Court dismissed the plaintiff's revision under Article 227 holding that the trial court's order did not warrant interference; the Supreme Court disagreed with that approach. (¶¶ 11, 13)
Held
- Adjudication of a plea of res judicata is beyond the scope of Order VII Rule 11(d) CPC, which permits reference only to the statements in the plaint; whether a prior suit was decided, whether the issues were directly and substantially the same, whether the parties were the same or claimed through the same title, and whether the issues were finally decided by a competent court, all require examination of the pleadings, issues and decision in the former suit. (¶¶ 8, 9)
- Where the plaintiff, who was not a party to the earlier suit, specifically pleads that the ex parte decree was obtained by collusion, that the earlier suit was filed in a court without territorial jurisdiction by fraud, and that he is a bona fide purchaser, those questions need detailed examination at trial; res judicata cannot be decided on speculation, inference or the assertions in the application for rejection of the plaint. (¶¶ 6, 9, 12)
- The trial court's order, which contained no consideration of the case set up in the plaint and faulted the plaintiff for not having objected to the earlier decree, could not sustain rejection of the plaint; the High Court erred in declining to interfere. No opinion was expressed on whether the ex parte decree would in fact operate as res judicata, which is left open for final determination along with all other defences. (¶¶ 10, 11, 12, 14)
Result
Appeal allowed; delay condoned; High Court's order in the civil revision set aside; suit O.S. No. 60 of 2009 restored to its original number before the District Munsif, Portonovo, with a direction for expeditious disposal; all defences including res judicata kept open; parties to bear their own costs.