In order to attract the provision of res judicata, there should not only be a sufficient pleading to that effect, but the plaint, the written statement, the issues involved in the earlier proceeding and the judgment of the earlier proceeding should be brought on record in accordance with the provision governing the field. (See, Md. Salie versus Md. Hanifa reported in MANU/SC/0510/1976 : AIR 1976 SC 1569 and V. Rajeshwari versus T.C. Saravanabava reported in MANU/SC/1057/2003 : (2004) 1 SCC 551.)
11. In case of Ishwar Dutta versus Land Acquisition Collector reported in AIR 2005 SC 3156, it is held that the principle of res judicata was based on the principle of estoppels.
12. When a proceeding based on particular cause of action has attained finality, the principle of res judicata applies. There is no hesitation in our mind to hold that the principle of res judicata is a mixed question of fact and law. (See, Kamala versus K.T. Eshwara Sa reported in MANU/SC/7542/2008 : (2008) 12 SCC 661.)
13. It is a settled proposition of law that the Court, at the time of considering an application under Order 7, rule 11 of the Code, shall confine itself to the averments made in the plaint and the documents annexed thereto. It shall not look into the defence of the defendants in order to find out as to whether the suit is barred by law. Therefore, the plaint cannot be rejected on the plea of being barred by principle of res judicata upon invocation of the provision contained under Order 7, rule 11 (d) of the Code.
IN THE HIGH COURT OF CALCUTTA
F.M.A.T. No. 737 of 2012 With C.A.N. No. 5500 of 2012
Decided On: 03.10.2012
Mahamaya Paul Vs. Dipak Kumar Mukherjee and Others
Hon'ble Judges/Coram:
Hon'ble Justice Shubhro Kamal Mukherjee and Justice Harish Tandon
Citation: (2013) 1 ICC 610,
1. This appeal arises from an order dated May 25, 2011 passed by the learned Civil Judge (Senior Division) in Title Suit No. 2800 of 2011 by which an application under Order 7, rule 11 of the Code of Civil Procedure was allowed and the plaint of the said suit was rejected. The appellant-petitioner filed Title Suit No. 2800 of 2010, inter alia, seeking for a decree for declaration that a compromise decree dated January 10, 1992 passed in Title Suit No. 31 of 1990 was bad being an outcome of fraud.
2. From the averments made in the plaint, it appears that the respondent/opposite party No. 1 instituted Title Suit No. 116 of 1987 in the capacity of sole shebait and next friend of the deities, namely, Shree Iswar Narayan Jew Thakur and Shree Iswar Shib Thakur against Deb Kumar Mukherjee and Bimal Kumar Chatterjee seeking declaration that the disputed property was a rebutter and the aforesaid persons could not treat the said property as secular one. Subsequently, on the prayer of the plaintiff made in the said suit, this appellant was added along with some other persons as the defendants therein. The said suit was, subsequently, renumbered as Title Suit No. 31 of 1990. The said suit was, ultimately, compromised between the parties on January 10, 1992. According to the petitioner although she was a party in the said suit, but summons were not served on her nor she had ever engaged any lawyer to represent her. She alleged that the lawyer, who, allegedly appeared on her behalf, was never engaged by her. She did not sign any compromise petition. Therefore, the said compromise decree was obtained fraudulently.
3. In this suit the plaintiff/appellant took out an application for injunction praying for an order restraining the respondents from interfering and/or dealing with the said property.
4. On the said application an order directing the parties to maintain status quo in respect of the suit property was passed.
5. The respondent/opposite party No. 1, thereafter, took out an application under Order 7, rule 11 of the Code of Civil Procedure praying for rejection of the plaint of this suit.
6. On perusal of the said application, it appears that the main thrust put forth therein was that the suit was, hopelessly, barred by principles of res judicata.
7. The point, which emanates from the respective submissions of the learned advocates, as aforesaid, is whether the plaint can be rejected under the provisions of Order 7, rule 11 (d) of the code of Civil Procedure having barred by principle of res judicata.
8. Before proceeding to deal the above aspect, it would be profitable to quote the provisions of Section 11 of the Code, which reads thus:
Section 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.
9. The principle of res judicata, as enshrined in the above provision, is based on the principle of equity, good conscience and justice. It would be inequitable, unfair and opposed to the principles of natural justice to adjudicate an issue raised in the later proceeding if such issue has been concluded in a former proceeding. It augments the principle of finality of the litigation.
10. In order to attract the provision of res judicata, there should not only be a sufficient pleading to that effect, but the plaint, the written statement, the issues involved in the earlier proceeding and the judgment of the earlier proceeding should be brought on record in accordance with the provision governing the field. (See, Md. Salie versus Md. Hanifa reported in MANU/SC/0510/1976 : AIR 1976 SC 1569 and V. Rajeshwari versus T.C. Saravanabava reported in MANU/SC/1057/2003 : (2004) 1 SCC 551.)
11. In case of Ishwar Dutta versus Land Acquisition Collector reported in AIR 2005 SC 3156, it is held that the principle of res judicata was based on the principle of estoppels.
12. When a proceeding based on particular cause of action has attained finality, the principle of res judicata applies. There is no hesitation in our mind to hold that the principle of res judicata is a mixed question of fact and law. (See, Kamala versus K.T. Eshwara Sa reported in MANU/SC/7542/2008 : (2008) 12 SCC 661.)
13. It is a settled proposition of law that the Court, at the time of considering an application under Order 7, rule 11 of the Code, shall confine itself to the averments made in the plaint and the documents annexed thereto. It shall not look into the defence of the defendants in order to find out as to whether the suit is barred by law. Therefore, the plaint cannot be rejected on the plea of being barred by principle of res judicata upon invocation of the provision contained under Order 7, rule 11 (d) of the Code.
14. The learned advocate appearing for the respondent candidly submits that the plea of suit being not maintainable in view of the embargo created under Order 23, rule 3A of the Code, was not taken by the defendant in his application under Order 7, rule 11 of the Code. However, he submits that such point is a pure question of law and, therefore, the respondent no. 1 should be permitted to raise such issue.
15. The learned advocate appearing for the respondent no. 1, has invited our attention to a judgment of the Apex Court in case of Banwari Lal versus Shrimati Chando Devi and another reported in MANU/SC/0152/1993 : AIR 1993 SC 1139 for the proposition that the suit challenging a compromise decree is barred under the provisions of Order 23, rule 3A of the Code and the remedy lies to aggrieve party is either to approach the same court or to prefer an appeal under Order 43, rule 1A of the Code of Civil Procedure. He, further, placed reliance upon a judgment of the Apex Court in case of N.V. Srinivasa Murthy and others versus Mariyamma and others reported in MANU/SC/0403/2005 : (2005) 5 SCC 548, which accepted and applied the ratio laid down in case of Banwari Lal (supra).
16. In case of Morium Bibi and others versus Musst. Showkatara Begum and others reported in MANU/WB/0483/1994 : 98 CWN 1074, the Division Bench of this Court was considering an appeal filed under Order 43, rule 1A of the Code challenging the compromise decree being not binding as it was obtained by practicing fraud. It is held that non-party to a proceeding, which ended into a compromise, could not maintain an appeal under Order 43, rule 1A of the Code.
17. However, in case of Arjunagouda versus Basavappa Basarkod and another reported in (2007) 15 SCC 784, the Apex Court was considering a case where the suit challenging the compromise decree on the plea of fraud was a subject-matter. The Apex Court refused to interfere with the concurrent findings of the fact.
18. Much reliance is placed upon a judgment of the Apex Court in case of Horil versus Keshav and another reported in MANU/SC/0045/2012 : (2012) 5 SCC 525, in contending that this suit is barred under the provisions of Order 23, rule 3A of the Code.
19. We have given our anxious consideration on the above noted decisions, but we fail to convince ourselves as to whether we should venture to decide such point in absence of any plea being taken by the respondent no. 1 in an application under Order 7, rule 11 of the Code. As indicated above, the solitary ground taken in the said application was the plea of res judicata and there was no whisper in the said application that the suit was barred under Order 23, rule 3A of the Code.
20. We feel that it will be improper to permit the appellant to raise the said new plea as such plea was never taken in the application filed under Order 7, rule 11 of the Code of Civil Procedure.
21. Mr. Mitra, learned senior advocate, was right in submitting that if we permit the respondent no. 1 to raise such plea, the same would cause serious prejudice to the appellant as the respondent no. 1 is taking his adversary by surprise. In the absence of giving an opportunity to the adversary to meet the point in the trial court, it would be improper for us to allow the respondent no. 1 to agitate a new point, may be a question of law, in the appeal court.
22. Therefore, the order impugned is set aside. The application under Order 7, rule 11 of the Code of Civil Procedure filed by the respondent no. 1 is rejected. The suit is restored to its original file and number.
23. However, in order to avoid all future harassments, we feel that justice will be sub-served if we direct the learned trial judge to dispose of the suit expeditiously. We take this opportunity by requesting the learned trial judge to dispose of the suit as expeditiously as possible preferably by March, 2013. We request the learned trial judge not to grant any unnecessary adjournments to either of the parties while hearing the said suit.
24. By way of abundant caution, we record that we have not been gone into the merits of the claims and the counter-claims of the parties and all issues are left open to decide.
25. In view of the above, the appeal becomes infructuous and the same is, also, disposed of.
26. Consequent to the disposal of the appeal itself, the connected application being C.A.N. No. 5500 of 2012 is, also, disposed of.
27. However, there shall be no order as to costs.
28. The office is directed to communicate this order to the Court below immediately.
29. Urgent Photostat certified copy of this order, if applied for, be given to the learned advocates for the parties on priority basis.
Shubhro Kamal Mukherjee, J.
I agree.
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