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ALKA SARIN, J. –

1. The present revision petition under Article 227 of the constitution of India has been filed impugning the order dated 22.02.2021 passed by the Civil Judge (Junior Division), Hisar vide which the application filed by the defendant-petitioners under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) seeking rejection of the plaint has been dismissed.

2. Brief facts relevant to the present lis, as borne out from the plaint (Annexure P-3) are that the suit property was originally owned by one Shree Niwas who is stated to have died in the year 1934. He was survived by his children namely, Shyam Sunder, Kunj Bihari, Krishan Sarup, Brij Nandan, Mohan Lal, Nitya Nand and Vidyawati. Nitya Nand was bachelor and is stated to have died issueless. Vidyawati daughter of Shree Niwas filed Civil Suit No.636-CS of 1985 seeking a declaration therein that she was co-owner to the extent of 1/6th share of the suit property. On 18.11.1992 the said suit was decreed to the extent that the plaintiff therein i.e. Vidyawati was co-owner to the extent of 1/36th share of the suit property and a preliminary decree was passed to this effect.

3. On 25.04.2017 the sons of Kunj Bihari and the adopted son of Shyam Sunder filed the present suit for possession by way of partition. The defendant-petitioners herein moved an application under Order 7 Rule 11 CPC (Annexure P-4) for rejection of the plaint on the ground of the same being barred by principle of res judicata. The plaintiff-respondent Nos.1 to 6 filed a reply (Annexure P-5) to the said application and contested the same. Vide impugned order dated 22.02.2021 the Trial Court dismissed the application. Aggrieved by the said order, the present revision petition has been preferred.

4. Learned counsel for the defendant-petitioners would contend that the suit is barred inasmuch as the earlier suit filed by Vidyawati was qua the same subject matter and was amongst the same parties. It is further the contention of learned counsel for the defendant-petitioners that the fact of filing of the previous suit is evident from the plaint itself.

5. Per contra, learned counsel for the plaintiff-respondent Nos.1 to 6 has contended that Order 7 Rule 11 CPC has a limited scope and a suit which is said to be barred by res judicata cannot be dismissed on an application under Order 7 Rule 11 CPC since a finding on whether the suit is barred by res judicata can be arrived at only once the evidence has been led. In support of his arguments learned counsel for the plaintiff-respondent Nos.1 to 6 has relied upon the judgments of Hon’ble the Supreme Court in Kamala & Ors. Vs. K.T. Eshwara Sa & Ors. [2008(12) SCC 661] and Vaish Aggarwal Panchayat Vs. Inder Kumar & Ors. [2020(12) SCC 809] and judgment of this Court in S. S. Ahluwalia Vs. S. P. S. Ahluwalia & Ors. [2012(4) RCR (Civil) 50].

6. Heard.

7. In the present case the application under Order 7 Rule 11 CPC has been filed on the ground that since the earlier suit was filed by Vidyawati and a preliminary decree was passed therein, the present suit would be barred. Learned counsel for the defendant-petitioners has argued that the suit would be barred since the parties are the same and the subject matter is the same. However, it is contended that the argument is not that it is barred by res judicata and, hence, the application under Order 7 Rule 11 CPC ought to have been allowed.

8. The question whether the suit is barred by the principles of res judicata would be a mixed question of law and fact. Order 7 Rule 11 CPC reads as under:

“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 the 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.”

9. Order 7 Rule 11 CPC can be invoked when on the face of it i.e. on a meaningful reading of the plaint and the documents attached therewith, the suit does not disclose a cause of action; is undervalued; has been filed on insufficiently stamped papers; where it appears to be barred by any law; where it is not filed in duplicate; or where the plaintiff does not comply with the provisions of Rule 9.

10. Order 7 Rule 11(d) CPC has limited application. On a reading of the plaint it should be apparent that the suit is barred by any law. When the plea of res judicata is raised, the same being a mixed question of law and fact, it cannot be gone into without there being any evidence on the record and, thus, such a case is not one that can be dismissed on an application under Order 7 Rule 11 CPC.

11. Hon’ble the Supreme Court in the case of Kamala (supra) has held as under:

“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.

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.”

12. The facts of the said case are similar to the facts of the case in hand. In Kamala’s case (supra), in a suit for partition, the final decree proceedings were dismissed in default and, thereafter, another suit for partition was instituted. The Supreme Court while allowing the appeal observed as under:

“32. We may proceed on the assumption that the shares of the parties were defined. There was a partition amongst the parties in the sense that they could transfer their undivided share. 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, in our opinion, cannot be gone into in a proceeding under Order 7, Rule 11(d) of the Code. Whether any property is available for partition is itself a question of fact.”

13. In view of the law laid down by the Supreme Court as well as the fact that from a reading of the plaint in the present case it cannot be said that the suit is barred by any law, the application under Order 7 Rule 11 CPC rightly stands rejected. I do not find any illegality or infirmity in the order dated 22.02.2021 passed by the Trial Court. The revision petition is, accordingly, dismissed. Pending applications, if any, also stand disposed off.

14. It is, however, made clear that any observations made in the impugned order passed by the Trial Court or herein shall not be treated as an expression of opinion on the merits of the case.

15. Dismissed.

Petition dismissed.

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