SUPREME COURT OF INDIA DIVISION BENCH (Before : Dr. Dhananjaya Y. Chandrachud and M.R. Shah, JJ. ) SRIHARI HANUMANDAS TOTALA — Appellant Vs. HEMANT VITHAL KAMAT AND OTHERS — Respondent Civil Appeal No. 4665 2021 Arising out of SLP (C) No. 3899 of 2021
GOOD DAY
SUPREME COURT OF INDIA
DIVISION BENCH
(Before : Dr. Dhananjaya Y. Chandrachud and M.R. Shah, JJ. )
SRIHARI HANUMANDAS TOTALA — Appellant
Vs.
HEMANT VITHAL KAMAT AND OTHERS — Respondent
Civil Appeal No. 4665 2021 Arising out of SLP (C) No. 3899 of 2021
Decided on : 09-08-2021
Civil Procedure Code, 1908 (CPC) – Order 7 Rule 11(d) – Res judicata as a ground
for rejection of plaint – Plaint cannot be rejected – Guiding principles for deciding
an application under Order 7 Rule 11(d) 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 defense 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.
Cases Referred
Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman
Educational Trust, (2012) 8 SCC 706
Gurbux Singh v. Bhooralal [AIR 1964 SC 1810 : (1964) 7 SCR 831]
Kali Krishna Tagore v. Secy, of State for India in Council [(1887-88) 15 IA 186 : ILR 16
Cal 173]
Kamala & others v. KT Eshwara Sa, (2008) 12 SCC 661
Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [(2006) 3 SCC 100]
Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100
Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184]
Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184
Soumitra Kumar Sen v. Shyamal Kumar Sen, (2018) 5 SCC 644
Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780]
Saleem Bhai v. State of Maharashtra [(2003) 1 SCC 557]
Shakti Bhog Food Industries Ltd. v. Central Bank of India and Another, 2020 SCC
OnLine SC 482
Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557
V. Rajeshwari v. T.C. Saravanabava, (2004) 1 SCC 551
Counsel for Appearing Parties
Mr. Tarun Gupta, Advocate, Mr. Santosh Pujari, Advocate, for the Appellant; Ms. Kiran Suri,
Sr. Advocate, Mr. S.J. Amith, Advocate, Mr. Krishna Kumar, Advocate, Dr. (Mrs.) Vipin
Gupta, Advocate, for the Respondent.
22. For the above reasons, we hold that the plaint was not liable to be rejected under
Order 7 Rule 11 (d) and affirm the findings of the Trial Court and the High Court. We
clarify however, that we have expressed no opinion on whether the subsequent suit is
barred by the principles of res judicata. We grant liberty to the appellant, who claims as
an assignee of the bona fide purchaser of the suit property in an auction conducted by
KSFC, to raise an issue of the maintainability of the suit before the Additional Civil
Judge, Belgaum in OS No. 138/2008. The Additional Civil Judge, Belgaum shall
consider whether a preliminary issue should be framed under Order XIV, and if so,
decide it within a period of 3 months of raising the preliminary issue. In any event, the
suit shall be finally adjudicated upon within the outer limit of 31 March 2022.
23. For the above reasons, we dismiss the appeal and affirm the impugned judgment
and order of the High Court dated 18 January 2021. The application under Order 7 Rule
11 of the CPC shall stand dismissed. There shall be no orders as to costs.
24. Pending application(s), if any, stand disposed of.
Complied for Legal Eagles Elites
S.Manikandan Advocate Mannargudi
