Article by Vijay Pal Dalmia, Advocate, Supreme Court of
India and Delhi High Court, Partner & Head of Intellectual
Property Laws Division, Vaish Associates Advocates,
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The concept of "Res Judicata" has evolved from English common law and since then it has been defined and interpreted through various judicial pronouncements. Before moving forward it is important to understand the concept of Res Judicata which is explained under Section 11 of the Code of Civil Procedure 1908. As per Section 11 of CPC 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.
Recently, the Supreme Court in the case of Srihari HanumandasTotala v. Hemant Vithal Kamat & Ors1 (https://main.sci.gov.in/supremecourt/2021/4370/4370_2021_35_1501_29116_Judgement_09-Aug-2021.pdf) interpreted the concept of "Res Judicata" with respect to Order VII Rule 11 of the Code of Civil Procedure 1908 ("CPC"). To analyse the concept of Order VII Rule 11, it is further imperative to understand prima facie that Order VII Rule 11 lays down instances wherein a "plaint" shall be rejected. Meaning thereby, the instances discussed therein should be considered prima facie at the time of presentation of plaint filed by the plaintiff and no other pleading.
The Supreme Court in the above case analysed Order 7 Rule 11(d) of Code of Civil Procedure, 1908 (CPC). Order 7 Rule 11 of CPC lays down instances when a plaint should be rejected. It includes rejection of plaint :-
- when it does not disclose a cause of action,
- where the plaint is insufficiently stamped, or
- the relief claimed is undervalued, and
- it further provides that the plaint shall be rejected "where the suit appears from the statement in the plaint to be barred by any law".
The court emphasized that the averments in the plaint should be the basis upon which it should be considered whether the plaint is barred by any law or not.
It was also further observed that reference to any other materials such as written statements cannot be made to decide the issue.
Further, the court elaborated the definition of res judicata given in Section 11 of the CPC. It was laid crystally by the court that to decide an issue concerning res judicata, the same issue (that is raised in the suit) has been decided in the former suit. The court referred to the judgement in V. Rajeshwari v. T.C Saravanabava2 and laid emphasis on the following lines:
"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. 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".
The Court referred to the decision in Kamala & others v. KT Eshwara Sa3 which particularly deal with the question of res judicata being used as a ground for rejection of the plaint. Justice S B Sinha examined the ambit of Order 7 Rule 11(d) of the CPC "the court at that stage would not consider any evidence or enter into a disputed question of fact or law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for rejection of plaint should be entertained".
The Court from the above analysis and judgements laid down 4 guiding principles for deciding an application under Order 7 Rule 119(d). These principles are -
- 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;
- The defence made by the defendant in the suit must not be considered while deciding the merits of the application;
- To determine whether a suit is barred by res judicata, it is
- the 'previous suit' is decided,
- the issues in the subsequent suit were directly and substantially in issue in the former suit;
- the former suit was between the same parties or parties through whom they claim, litigating under the same title; and
- that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and
- 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.
1.Civil Appeal No 4665 2021
2.(2004) 1 SCC 551
3.(2008) 12 SCC 661.
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