Published on: 28 July 2023 at 09:40 IST
Court: Supreme Court
Citation: Prem Kishore V. Brahm Prakash (2023)
Honourable Supreme Court of India has held that the Order 7 Rule 11(d) of the Code of Civil Procedure 1908 can invoked only with respect to the averments in the plaint. It is further held that res judicata requires consideration of the pleadings, issues and decision in the ‘previous suit’ which is a plea will be beyond the scope of Order 7 Rule 11 (d) of the Code of Civil Procedure 1908.
37. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) of the CPC can be summarized as follows:—
(i) 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;
(ii) The defence made by the defendant in the suit must not be considered while deciding the merits of the application;
(iii) 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
(iv) 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.
Drafted By Abhijit Mishra