Punjab-Haryana High Court
Som Nath vs Jaspal Kaur And Ors on 9 September, 2024
Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** SAO No.5 of 2022 (O&M) Reserved on: 28.08.2024 Pronounced on: 09.09.2024 Som Nath .....Appellant Vs. Jaspal Kaur and others .....Respondents CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA Present:- Mr. Vaibhav Sehgal, Advocate for the appellant. Mr. Rajat Malhotra, Advocate for respondent No.1. **** DEEPAK GUPTA, J.
In civil suit N: 20 of 2014, an applica&on under Order 7 Rule 11
CPC for rejec&on of the plaint, moved by the defendant No. 6- Som Nath
(appellant herein), was accepted by Ld. Civil Judge (Jr Divn), Ludhiana vide
order dated 09.09.2016. However, the appeal (CA N: 88 of 2017) filed by
plain&ff – Jaspal Kaur (respondent No.1 herein), has been allowed by the Ld.
Addl. District Judge, Ludhiana, by way of the impugned order dated
09.12.2021, thus, dismissing the applica&on under Order 7 Rule 11 CPC. It
is against this reversal that defendant N: 6 of the suit has approached this
Court by filing the present second appeal against order.
2. The facts of the case in brief are as under:-
2.1 In the suit filed by plain&ff – Jaspal Kaur (respondent No.1), it
was claimed that she was the owner in possession of the suit property
detailed in head note of the plaint; that her father Gurdial Singh had
purchased the property in dispute from defendant No.1 Balwant Singh
(respondent No.2 herein) and had paid the en&re sale considera&on.
However, her father had gone to Amarnath Yatra and did not return, due to
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which, defendant No.1 through defendant No.2 Harchand (respondent No.3
herein) executed and got registered sale deed bearing Vasika No.2369 dated
19.09.1995 of the property in ques&on in favour of the plain&ff. However,
inadvertently, the name of the vendee was men&oned as Makhan Singh son
of Gurdial Singh, instead of Jaspal Kaur wife of Makhan Singh. Taking
undue advantage of this wrong entry in the sale deed and in the revenue
record, defendant No.3 – Makhan Singh (respondent No.4 herein) started
threatening the plain&ff to dispose of the property to somebody else.
Plain&ff requested the defendants No.1 and 2 to get the sale deed
corrected by incorpora&ng her name but they refused. Plain&ff further
pleaded that cause of ac&on in her favour arose, when her name was
wrongly not men&oned in the sale deed and also later on, when defendants
refused to get corrected the sale deed to incorporate her name as vendee
of the suit property. This suit was filed by the plain&ff on 15.07.2014
seeking necessary declara&on.
2.2 Som Nath (present appellant), who was not impleaded as a
defendant to the suit, moved an applica&on under Order 1 Rule 10 CPC to
implead him as a party. His applica&on was allowed vide order dated
15.12.2014 (Annexure P5) and then he was impleaded as defendant N: 6.
2.3.1 He (Somnath) then moved an applica&on under Order 7 Rule
11 CPC (Annexure P6) for rejec&ng the plaint, by pleading that suit had been
filed in collusion with defendants No.1 to 3 and by concealing the material
facts from the Court. Defendant No.3 – Makhan Singh was none else than
the husband of the plain&ff, who being the owner in possession of the suit
property, had entered into an agreement to sell dated 02.08.1997 with the
applicant- defendant- Som Nath. As said Makhan Singh failed to perform
his part of contract, Civil suit No.270 of 1998 for possession by way of
specific performance was filed by said applicant. ADer hotly contes&ng, the
suit was decreed on 10.08.2009 vide judgment Annexure P1. In the
execu&on filed by the applicant – decree holder of Civil Suit No.270 of 1998,
sale deed bearing Vasika No.24945 dated 11.03. 2013 was executed and
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registered in his favour and warrant of possession was issued. Police help
was ordered to be provided for delivering the possession, when the
applicant along with other family members started crea&ng hindrance in
delivering the possession.
2.3.2 Applicant- defendant No. 6- Som Nath further pleaded that
earlier plain&ff had filed a Civil Suit No.308 dated 15.12.1998, against
defendants No. 2 and 3 [Harchand Singh and Makhan Singh], in which, the
present applicant was not impleaded as a party and, therefore, his
applica&on under Order 1 Rule 10 CPC to be impleaded as a party was
accepted. In that suit filed in 1998 by plain&ff- Jaspal Kaur, defendant –
applicant had specifically pleaded about the agreement to sell in his favour
but s&ll no ac&on was taken by the plain&ff at that &me. That suit was also
hotly contested and ul&mately, the same was dismissed on 09.11.2009 vide
judgment Annexure P3. No appeal was filed against that judgment and
thus, it aGained finality.
2.3.3 It was further pleaded in the applica&on under Order 7 Rule 11
CPC that in the above circumstances, the present suit was barred by law, as
maGer in controversy raised in the present suit was directly and
substan&ally in issue in the earlier suit and had already been set at rest in
the earlier li&ga&on vide judgment & decree dated 09.11.2009 Annexure P3
and, therefore, that decision was binding upon the plain&ff.
2.4 In reply to the above applica&on, plain&ff did not specifically
deny the filing of the previous suit and the dismissal thereof. However, she
prayed for dismissal of the applica&on.
3. Learned Civil Judge (Junior Division) Ludhiana, vide order dated
09.09.2016 accepted the applica&on of the appellant- defendant under
Order 7 Rule 11 CPC on the ground that the suit was barred by the principle
of res-judicata as contained in Sec&on 11 CPC and further held that the suit
had been filed with a mo&ve to frustrate the execu&on pe&&on. The
applica&on was accordingly allowed and the plaint was ordered to be
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rejected.
4. However, the appeal filed by the plain&ff- Jaspal Kaur against
the aforesaid order, was allowed by the Appellate Court of learned
Addi&onal District Judge, Ludhiana vide impugned order dated 09.12.2021.
Learned Addi&onal District Judge referred to the provisions of Order 7 Rule
11 CPC and observed that at the &me of deciding an applica&on under
Order 7 Rule 11 CPC, the Court was required to look into the averments of
the plaint only and not the averments of the wriGen statement. It was
observed further that in the present case, the reading of the plaint did not
reveal any such material, by which it could be stated that suit was barred by
any law. Learned Addi&onal District Judge referred to S.S. Ahluwalia Vs.
S.P.S. Ahluwalia, 2012 (4) RCR (Civil) 140 and Srihari Hanumandas Totala
Vs. Hemant Vithal Kamat & Ors., Civil Appeal No.4665 of 2021 decided by
Hon’ble Supreme Court on 09.08.2021. Thus, accep&ng the appeal, it was
held that applica&on under Order 7 Rule 11 CPC could not be allowed and
plaint could not be rejected at this stage.
Conten7ons of the appellant:
5.1 Assailing the afore-said order by way of present appeal, it is
contended by Ld. counsel for the appellant- defendant Somnath that the
suit was clearly barred under Order 21 CPC, as whatever objec&ons the
plain&ff had, the same could have been decided under Order 21 Rule 101
CPC, as all the ques&ons rela&ng to rights, &tle or interests in the property
arising between the par&es out of the proceedings raised by the third party
can be disposed of by the Execu&ng Court and not by a separate suit. It is
pointed out by learned counsel that in the execu&on filed by the appellant,
objec&ons were in fact filed by the plain&ff, on the same ground that sale
deed dated 19.09.1995 was wrongly executed in favour of her husband
Makhan Singh and that the sale deed was required to be registered in her
name. However, those objec&ons were dismissed by the trial Court on
16.04.2015 vide Annexure P2 by holding that Jaspal Kaur i.e. plain&ff wasPage No.4 out of 30 pages
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not the owner of the suit property.
5.2 It is argued that not only above, even the earlier suit filed by
the plain&ff way back in 1998 was also dismissed in 2009 vide Annexure P3.
Learned Appellate Court failed to observe that issues involved in the
present suit are the same as already adjudicated upon by the trial Court not
only in Civil Suit No.308 of 1998, dismissed on 09.11.2009 but also in the
execu&on filed by the defendant- appellant.
5.3 Learned counsel further contends that the present suit is even
barred under the law of limita&on, inasmuch as the sale deed of 1995 has
been challenged by the plain&ff in 2014.
5.4 It is also the conten&on of ld. counsel that a li&gant, who is
dishonest and has approached the Court with concealment of the material
facts, cannot be given any advantage by the Court.
5.5 In order to support his conten&on, counsel for the appellant
has relied upon the following authori&es:-
i. T. Arivandandam Vs. T.V. Satyapal, 1978 RLR 17;
ii. Sameer Singh and another Vs. Abdul Rab and others, 2015(1) ALT 27;
iii. Yogesh Maini Vs. State of Punjab and others, CWP-12476-2020
(O&M) decided on 21.09.2020;
iv. Holy Health and Educa8onal Society (Regd.) Vs. Delhi Development
Authority, 1993) R.C.R. (Civil) 531;
v. K.K. Modi Vs. K.N. Modi and others, 1998(3) SCC 573;
vi. T. Palanisamy Gounder Vs. Sankara Ramanathan and others 2000(2)
MLJ 656;
vii. Surender Mohan (deceased) by LR Vs. Baldev Singh and others, 2019
(3) Law Herald (P&H) 2241; andviii. N. Babu Vs. S. Shanmugam and others, 2012(51) R.C.R. (Civil) 206
5.6 With all the above submissions, prayer is made for seLng aside
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the impugned order passed by learned Addi&onal District Judge, Ludhiana
and to restore the order of the trial Court, whereby the plaint was rejected
by accep&ng the applica&on under Order 7 Rule 11 CPC.
Conten7ons of the respondent:
6. Refu&ng all the afore-said conten&ons, it is contended by
learned counsel for the plain&ff- respondent that learned Appellate Court
has rightly allowed the appeal by rejec&ng the applica&on under Order 7
Rule 11 CPC, as the plea of res-judicata cannot be considered at this stage
and for that reason, plaint cannot be rejected. Learned counsel has
referred to Srihari Hanumandas Totala Vs. Hemant Vithal Kamat & Ors.
(supra) and S.S. Ahluwalia Vs. S.P.S. Ahluwalia, 2012 (4) RCR (Civil) 140
(supra).
7. This Court has considered submissions of both the sides and
have appraised the en&re record thoroughly and carefully.
8. On perusal of the paper book and hearing both the sides, the
facts in chronological order emerge as under:
x Makhan Singh is the owner of the suit property by virtue of a
registered sale deed dated 19.09.1995.
x Said Makhan Singh executed an agreement to sell dated 02.08.1997
so as to sell the suit property to Somnath (present appellant).
x Based upon the agreement to sell dated 02.08.1997, Som Nath filed
Civil Suit No.270 on 03.08.1998 against Makhan Singh seeking
specific performance of agreement and possession of the suit
property.
x ADer approximately four months, i.e. on 15.12.1998, Jaspal Kaur, the
wife of Makhan Singh, filed separate suit No.308 of 1998, claiming to
be owner of the suit property. This suit was filed against her husband
– Makhan Singh; and one Harchand Singh Grewal, without
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impleading Som Nath as a party. On an applica&on moved under
Order 1 Rule 10 CPC, Som Nath was impleaded as defendant No.3 in
that suit, who in his wriGen statement referred about the agreement
to sell dated 02.08.1997 in his favour executed by Makhan Singh. He
further pleaded that it is Makhan Singh, who was owner in
possession of the suit property on the dint of sale deed dated
19.09.1995. Said suit filed by Jaspal Kaur was dismissed on
09.11.2009 by specifically holding that it is Makhan Singh, who was
the true owner of the suit property on the basis of sale deed dated
19.09.1995 and that he had entered into the agreement to sell the
same with Som Nath. No appeal against this judgment and decree
dated 09.11.2009 (Annexure P3) was filed by Jaspal Kaur.
x On the other hand, Civil Suit No.270 of 1998 filed by Som Nath for
specific performance was decreed on 10.08.2009.
x In the execu&on filed by Somnath on 24.10.2009, sale deed in his
favour was executed on 11.03.2013 pursuant to the order of the
Court and warrants of possession was directed to be issued.
x As the judgment debtor- Makhan Singh, his wife Jaspal Kaur (plain&ff
of present suit N: 20 of 2014) and other family members created
hindrance in delivery of the possession, the Execu&ng Court directed
for providing police help for delivering the possession.
x However, it is at this stage that during pendency of the execu&on,
present Civil Suit No.20 of 2014 was filed by Jaspal Kaur on
15.07.2014 again on the ground that she is the owner in possession
of the suit property on the basis of sale deed dated 19.09.1995 and
that name of Makhan Singh was wrongly incorporated in the sale
deed.
x It is very important to no&ce at this stage itself that in the said suit,
Jaspal Kaur did not make even a whisper about the earlier suit
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No.308 of 1998 filed by her on the same cause, which had been
dismissed on 09.11.2009.
x In this suit filed on 15.07.2014 also, Jaspal Kaur did not implead
Somnath as a party and rather, the said suit was filed against Makhan
Singh, Balwant Singh, Harchand Singh and two others. As Som Nath
came to know about this suit, he filed applica&on under Order 1 Rule
10 CPC, which was allowed on 15.12.2014 (vide Annexure P5) and
then he moved the applica&on under Order 7 Rule 11 CPC by
disclosing the factum regarding the earlier li&ga&on.
Court analysis:
9. With above factual background facts, let us take note of Order 7
Rule 11 CPC, which reads as under:-
“11. Rejec7on of plaint.– The plaint shall be rejected in the following cases:
—
(a) where it does not disclose a cause of ac&on;
(b) where the relief claimed is undervalued, and the plain&ff, on being
required by the Court to correct the valua&on within a &me to be fixed
by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is wriGen
upon paper insufficiently stamped, and the plain&ff, on being required
by the Court to supply the requisite stamp-paper within a &me 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 plain&ff fails to comply with the provisions of rule 9:
Provided that the &me fixed by the Court for the correc&on of
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extended unless the Court, for reasons to be recorded, is sa&sfied that
the plain&ff was prevented by any cause of an excep&onal nature from
correc&ng the valua&on or supplying the requisite stamp-paper, as the
case may be, within the &me fixed by the Court and that refusal to
extend such &me would cause grave injus&ce to the plain&ff.”
10. As the above provision would reveal that when the plaint is
sought to be rejected under Clause (d) of Rule 11 of Order 7 CPC, only this
much is to be seen that from the statement in the plaint, the suit is barred
by any law. Meaning thereby, at the &me of considering the ques&on as to
whether the plaint should be rejected under Clause (d), apart from the
averments made in the plaint, no conten&on of the defendant or the
averment made by him in the applica&on under Order 7 Rule 11 CPC can be
considered.
(A) Rejec+on of plaint on ground of res-judicata (when there is no concealment
of facts) –
11.1 The legal posi&on regarding under Clause (d) of Order 7 Rule 11
CPC and par&cularly when the plaint is sought to be rejected on the ground
of res-judicata, was considered by Hon’ble Supreme Court in Srihari
Hanumandas Totala Vs. Hemant Vithal Kamat & Ors.(supra).
11.2 In that case i.e., Srihari Hanumandas Totala (supra), the facts
were that one Leela Vithal Kamat, was the &tle holder of the suit property.
On her death, the property was mutated in the name of her two legal heirs.
Said legal heirs allegedly took a loan from Karnataka State Finance
Corpora&on (KSFC) and mortgaged the suit property as security for
repayment of the loan. As loan was not repaid, KSFC auc&oned the
property. Sale deed dated 8.8.2006 was executed in favour of the highest
bidder, i.e. auc&on purchaser. However, possession was not delivered to
him and, therefore, he filed the Civil Suit for delivery of possession on
various grounds. In the said suit, one of the legal heirs of Leela Vithal
Kamat, filed the wriGen statement alleging that KFSC had no authority to
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put the property to sale; that he had not taken any loan from KFSC nor had
any transac&on with it and that he had no concern with the borrower. Issue
was framed in this suit filed by auc&on purchaser to the effect as the
‘whether KFSC had no authority to put the suit property for sale?’
11.3 Said legal heir also filed an independent suit challenging the
sale deed dated 08.08.2006 in favour of the auc&on purchaser. He also
sought par&&on of the suit property and possession of his share. His
conten&on was the same to the effect that aDer the death of his mother,
suit property was inherited by him and his brother; that it is his brother,
who had mortgaged the suit property with KFSC without his consent and
that KFSC without inves&ga&ng the &tle and verifying the &tle documents,
had accepted the suit property as security and that he was not bound by
the said mortgage.
11.4 The suit filed by the auc&on purchaser was decreed, against
which the second brother who claimed to have not taken the loan, filed the
appeal. On the other hand, the auc&on purchaser moved an applica&on
under Sec&on 10 CPC in the second suit filed by abovesaid second brother,
on the ground that issues involved in both the cases were directly and
substan&ally the same. The trial Judge allowed the applica&on and the
proceedings in the subsequent suit were accordingly stayed, against which
the said brother who had alleged to have not taken the loan, filed appeal
before the High Court. The decree of the previous suit as filed by auc&on
purchaser was upheld by the High Court. ThereaDer, the auc&on purchaser
moved an applica&on under Order 7 Rule 11 CPC in the second suit for
rejec&on of the plaint. That applica&on was dismissed by the trial Judge
and the order was upheld in revision by the High Court.
11.5 It is against the above rejec&on of applica&on under Order 7
Rule 11 CPC that the auc&on purchaser/ his successor-in-interest filed the
appeal before the Hon’ble Supreme Court.
11.6 Hon’ble Supreme Court, aDer referring to the provisions of
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Order 7 Rule 11 CPC held as under:-
“16 Order 7 Rule 11(d) of CPC provides that the plaint shall be rejected
“where the suit appears from the statement in the plaint to be barred by any
law”. Hence, in order to decide whether the suit is barred by any law, it is the
statement in the plaint which will have to be construed. The Court while
deciding such an applica&on must have due regard only to the statements in
the plaint. Whether the suit is barred by any law must be determined from
the statements in the plaint and it is not open to decide the issue on the basis
of any other material including the wriGen statement in the case. Before
proceeding to refer to precedents on the interpreta&on of Order 7 Rule
11(d) CPC, we find it impera&ve to refer to Sec&on 11 of CPC, which defines
res judicata:
“11. Res judicata.–No Court shall try any suit or issue in which the
maGer directly and substan&ally in issue has been directly and
substan&ally in issue in a former suit between the same par&es, or
between par&es under whom they or any of them claim, li&ga&ng
under the same &tle, 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.”
17. Sec&on 11 of the CPC enunciates the rule of res judicata : a court shall
not try any suit or issue in which the maGer that is directly in issue has
been directly or indirectly heard and decided in a ‘former suit’. Therefore,
for the purpose of adjudica&ng on the issue of res judicata, it is necessary
that the same issue (that is raised in the suit) has been adjudicated in the
former suit. It is necessary that we refer to the exercise taken up by this
Court while adjudica&ng on res judicata, before referring to res judicata as
a ground for rejec&on of the plaint under Order 7 Rule 11. Jus&ce R C
Laho& (as the learned Chief Jus&ce then was), speaking for a two Judge
bench in V. Rajeshwari v. T.C. Saravanabava (2004) 1 SCC 551 discussed the
plea of res judicata and the par&culars that would be required to prove
the plea. The court held that it is necessary to refer to the copies of the
pleadings, issues and the judgment of the ‘former suit’ while adjudica&ng
on the plea of res judicata:
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“11. The rule of res judicata does not strike at the root of the
jurisdic&on of the court trying the subsequent suit. It is a rule of
estoppel by judgment based on the public policy that there should
be a finality to li&ga&on and no one should be vexed twice for the
same cause.
13. Not only the plea has to be taken, it has to be substan&ated by
producing the copies of the pleadings, issues and judgment in the
previous case. Maybe, in a given case only copy of judgment in
previous suit is filed in proof of plea of res judicata and the
judgment contains exhaus&ve or in requisite details the statement
of pleadings and the issues which may be taken as enough proof.
But as pointed out in Syed Mohd. Salie Labbai v. Mohd.
Hanifa [(1976) 4 SCC 780] the basic method to decide the ques&on
of res judicata is first to determine the case of the par&es as put
forward in their respec&ve pleadings of their previous suit and
then to find out as to what had been decided by the judgment
which operates as res judicata. It is risky to speculate about the
pleadings merely by a summary of recitals of the allega&ons made
in the pleadings men&oned in the judgment. The Cons&tu&on
Bench in Gurbux Singh v. Bhooralal [AIR 1964 SC 1810 : (1964) 7
SCR 831] placing on a par the plea of res judicata and the plea of
estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held
that proof of the plaint in the previous suit which is set to create
the bar, ought to be brought on record. The plea is basically
founded on the iden&ty of the cause of ac&on in the two suits and,
therefore, it is necessary for the defence which raises the bar to
establish the cause of ac&on in the previous suit. Such pleas cannot
be leD to be determined by mere specula&on or inferring by a
process of deduc&on what were the facts stated in the previous
pleadings. Their Lordships of the Privy Council in Kali Krishna
Tagore v. Secy. of State for India in Council [(1887-88) 15 IA 186 :
ILR 16 Cal 173] pointed out that the plea of res judicata cannot be
determined without ascertaining what were the maGers in issue in
the previous suit and what was heard and decided. Needless to say,Page No.12 out of 30 pages
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these can be found out only by looking into the pleadings, the
issues and the judgment in the previous suit.”
(emphasis supplied)
18. At this stage, it would be necessary to refer to the decisions that
par&cularly deal with the ques&on whether res judicata can be the basis
or ground for rejec&on of the plaint. In Kamala & others v. KT Eshwara
Sa, (2008) 12 SCC 661, the Trial Judge had allowed an applica&on for
rejec&on of the plaint in a suit for par&&on and this was affirmed by the
High Court. Jus&ce S B Sinha speaking for the two judge bench examined
the ambit of Order 7 Rule 11(d) of the CPC and observed:
“21. Order 7 Rule 11(d) of the Code has limited applica&on. 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
applica&on for rejec&on 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 addi&on or subtrac&on. Absence of jurisdic&on
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 maGer which may arise between the par&es would not
be within the realm of the court at that stage. All issues shall
not be the subject-maGer of an order under the said
provision.”
(emphasis supplied)
The Court further held:
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“23. The principles of res judicata, when aGracted, would bar
another suit in view of Sec&on 12 of the Code. The ques&on
involving a mixed ques&on of law and fact which may require
not only examina&on 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 ques&on
cannot be determined at that stage.
24. It is one thing to say that the averments made in the plaint
on their face discloses no cause of ac&on, but it is another
thing to say that although the same discloses a cause of ac&on,
the same is barred by a law.
25. The decisions rendered by this Court as also by various
High Courts are not uniform in this behalf. But, then the broad
principle which can be culled out therefrom is that the court at
that stage would not consider any evidence or enter into a
disputed ques&on of fact or law. In the event, the jurisdic&on
of the court is found to be barred by any law, meaning thereby,
the subject-maGer thereof, the applica&on for rejec&on of
plaint should be entertained.”
(emphasis supplied)
The above view has been consistently followed in a line of decisions
of this Court.
11.7 Hon’ble Supreme Court, aDer referring to various other
precedents on the subject, concluded as under:
20. On a perusal of the above authori&es, the guiding principles for
deciding an applica&on 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 applica&on;
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(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 substan&ally in issue in the former
suit; (iii) the former suit was between the same par&es or par&es
through whom they claim, li&ga&ng under the same &tle; and (iv) that
these issues were adjudicated and finally decided by a court
competent to try the subsequent suit; and
(iv) Since an adjudica&on of the plea of res judicata requires
considera&on 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.”
11.8 ADer considering the factual and legal posi&on of the case
before Hon’ble Supreme Court, it was then held as under:
“21. In the present case, a meaningful reading of the plaint makes it
abundantly clear that when the first respondent ins&tuted the subsequent
suit, he had been impleaded as the second defendant to the earlier suit (OS
No. 103/2007) that was ins&tuted on 13 March 2007. The first respondent
ins&tuted the subsequent suit, OS 138/2008 though he had knowledge of the
earlier suit. The plaint in the subsequent suit which was ins&tuted by the first
respondent indicates that he was aware of the mortgage executed in favour of
KSFC, that KSFC had executed its charge by selling the property for the
recovery of its dues and that the property had been sold on 8 August 2006 in
favour of the predecessor of the appellant. As a maGer of fact, the plaint
contains an averment that there was every possibility that the first
respondent may suffer a decree for possession in OS 103/2007 which “has
forced” the first respondent to ins&tute the suit for challenging the legality of
the sale deed. Given the fact that an argument was raised in the previous suit
regarding no challenge having been made to the auc&on and the subsequent
sale deed executed by the KFSC, it is possible that the first respondent then
decided to exercise his rights and filed the subsequent suit. Be that as it may,
on a reading of the plaint, it is evident that the first respondent has not made
an aGempt to conceal the fact that a suit regarding the property was pending
before the civil court at the &me. It is also relevant to note that at the &me of
ins&tu&on of the suit (OS No. 138/2008) by the first respondent, no decree
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had been passed by the civil court in OS No. 103/2007. Thus, the issues
raised in OS No. 103/2007, at the &me, had not been adjudicated upon.
Therefore, the plaint, on the face of it, does not disclose any fact that may
lead us to the conclusion that it deserves to be rejected on the ground that it
is barred by principles of res judicata. The High Court and the Trial Court were
correct in their approach in holding, that to decide on the arguments raised
by the appellant, the court would have to go beyond the averments in the
plaint, and peruse the pleadings, and judgment and decree in OS No.
103/2007. An applica&on under Order 7 Rule 11 must be decided within the
four corners of the plaint. The Trial court and High Court were correct in
rejec&ng the applica&on under order 7 Rule 11(d).”
12. Two material facts are required to be noted from the afore-said
observa&ons and findings of the Hon’ble Supreme Court to the effect that in
the subsequent suit, the plain&ff had not concealed any fact regarding the
earlier suit. He had disclosed everything about the previous suit and the
wriGen statement filed by him and also the mortgage deed executed by his
brother on the basis of which the earlier suit had been decreed. Secondly, it
was observed by the Hon’ble Supreme Court that at the &me, when the
second suit was filed, the earlier suit had not been decided and so, the
principle of res-judicata was not applicable.
13. It is in the light of the afore-said dis&nguishable facts that it is
required to be seen, as to whether the principles laid down Srihari
Hanumandas Totala (supra) as above, are applicable to the facts of the
present case or not.
(B) Whether plaint is to be rejected on ground of res-judicata (when there is
concealment of material facts) –
14. In the present case, as has already been noted that earlier Civil
Suit No.308 of 1998 filed by plain&ff- Jaspal Kaur was dismissed by the trial
Court on 09.11.2009 and that decree had aGained finality, as no appeal was
filed against it. In the said judgment, it was specifically held that it is
Makhan Singh, the husband of the plain&ff, who was the owner of the
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property and who had executed an agreement to sell in favour of Somnath
and thus, Jaspal Kaur was held to be not the owner of the suit property.
15. In the present suit filed in 2014, plain&ff- Jaspal Kaur did not
even make a whisper about the earlier ins&tuted suit filed by her and the
dismissal thereof.
16. The ques&on is as to whether in the afore-said facts and
circumstances, plain&ff should be given any advantage or premium for the
concealment of the material facts from this Court. In other words, whether
the court should extend its helping hand to a dishonest li&gant, who
approaches the court by concealing material facts. Thus, court is also
confronted with a ques&on in these circumstances. On one hand, there is a
li&gant, who approaches the court and discloses each and every fact about
the previous li&ga&on and result thereof, in his subsequent suit. On the
other hand, there is another li&gant, who in his subsequent suit, has
concealed every fact regarding the previous li&ga&on and the result thereof,
and thus, is guilty of the concealment of the material fact. Whether the
court should side with such a dishonest li&gant.
17. If the conten&on of Ld. counsel for the respondent is accepted
and the reasoning given by the First Appellate Court is allowed, it would
mean that in the case of first li&gant, who has disclosed everything honestly
before the Court, his plaint would be liable to be rejected on the ground of
res-judicata, as the same issue had already been decided; whereas on the
other hand, in the case of dishonest li&gant of the second instance (such as
the present case), since he has not disclosed anything about the previous
li&ga&on, then his plaint cannot be rejected, as only the averments of the
plaint are to be considered and the court cannot know about previous
li&ga&on from the plaint.
18. This Court is of the clear view that no premium or advantage
can be given to a dishonest li&gant, who comes to the Court by concealing
all the material facts from the Court. Rather, such a li&gant should be
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thrown out of the Court with heavy costs so as to deter him to approach
the Court again with the vexa&ous li&ga&on.
19.1 In this regard, it is necessary to no&ce the provisions of Order 7
Rule 1 CPC which read as under:-
“1. Par+culars to be contained in plaint. -The plaint shall contain the
following par8culars:-
(a) the name of the Court in which the suit is brought;
(b) the name, descrip8on and place of residence of the plain8ff;
(c) the name, descrip8on and place of residence of the defendant, so
far as they can be ascertained;
(d) where the plain8ff or the defendant is a minor or a person of
unsound mind, a statement to that effect;
(e) the facts cons8tu8ng the cause of ac8on and when it arose;
(f) the facts showing that the Court has jurisdic8on;
(g) the relief which the plain8ff claims;
(h) where the plain8ff has allowed a set-off or relinquished a por8on of
his claim, the amount so allowed or relinquished; and
(i) a statement of the value of the subject-maHer of the suit for the
purposes of jurisdic8on and of court fees, so far as the case admit.”
19.2 Apart from the above par&culars, which are required to be
men&oned in the plaint, clause (j) was also inserted by Punjab, Haryana and
Chandigarh by way of a no&fica&on No. G.S.R. 17/C.S. 5/1908/S.122/78,
dated 15.03.1991, which is to the following effect:-
“(j) A statement to the effect that no suit between the same par+es, or
between par+es under whom they or any of them claim, li+ga+ng on the
same grounds has been previously ins+tuted or finally decided by a Court of
competent jurisdic+on or limited jurisdic+on, and if so, with what results.”
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20. It is, thus, clear that in every plaint, plain&ff is required to
specifically men&on that no suit between the same par&es or between the
par&es under whom they or any of them claim, li&ga&ng on the same
grounds, has been previous ins&tuted or finally decided by a Court of
competent jurisdic&on or limited jurisdic&on and if so, what was the result
of that previous lis.
21. As noted earlier that in present case, the plain&ff dishonestly
concealed the material fact from the Court about the previous li&ga&on of
1998 ins&tuted by her, which was dismissed in 2009.
(C) Effect of the concealment of material facts in the plaint –
22. What is the effect of the concealment of material facts in the
plaint from the court, is required to be considered. In K.K. Modi Vs. K.N.
Modi and others (supra), it has been observed by Hon’ble Supreme Court
as under:-
“43. The Supreme Court Prac&ce 1995 published by Sweet & Maxwell in
paragraph 18/19/33 (page 344) explains the phrase “abuse of the process of
the court” thus: “This term connotes that the process of the court must be
used bona fide and properly and must not be abused. The court will prevent
improper use of its machinery and will in a proper case, summarily prevent its
machinery from being used as a means of vexa&on and oppression in the
process of li&ga&on…….. The categories of conduct rendering a claim
frivolous, vexa&ous or an abuse of process are not closed but depend on all
the relevant circumstances. And for this purpose considera&ons of public
policy and the interests of jus&ce may be very material.”
44. One of the examples cited as an abuse of the process of court is re-
li&ga&on. It is an abuse of the process of the court and contrary to jus&ce and
public policy for a party to re-li&gate the same issue which has already been
tried and decided earlier against him. The re-agita&on may or may not be
barred as res judicata. But if the same issue is sought to be re-agitated, it also
amounts to an abuse of the process of court. A proceeding being filed for a
collateral purpose, or a spurious claim being made in li&ga&on may also in a
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given set of facts amount to an abuse of the process of the court. Frivolous or
vexa&ous proceedings may also amount to an abuse of the process of court
especially where the proceedings are absolutely groundless. The court then
has the power to stop such proceedings summarily and prevent the &me of
the public and the court from being wasted. Undoubtedly, it is a maGer of
courts’ discre&on whether such proceedings should be stopped or not; and
this discre&on has to be exercised with circumspec&on. It is a jurisdic&on
which should be sparingly exercised, and exercised only in special cases. The
court should also be sa&sfied that there is no chance of the suit succeeding.”
23. The effect of concealment of the material facts has also been
considered by the Division Bench of Madras High Court in Murugesan v. Sri
Kundramadai Ayyanar Koil etc., (1997) 2 L.W 780, wherein it has been held
that it is a seGled proposi&on of law that it is the duty of the person
invoking the jurisdic&on of the Court to make a full and true disclosure of all
relevant facts. He should not suppress any fact. If he makes a statement,
which is false, or conceals something from the court, which is relevant, the
Court will refuse to go into the maGer. It was further held that the suit as
well as the injunc&on applica&on are liable to be dismissed, not only on the
ground that there is suppression of material fact but also on the ground
that the very basis of the suit does not exist.
24. Thus, as per the seGled proposi&on of law, it is the duty of the
person invoking the jurisdic&on of the Court to make a full and true
disclosure of all relevant facts. He should not suppress any fact. If he
makes a statement, which is false, or conceals something from the court,
which is relevant, the Court will refuse to go into the maGer. The court will
prevent improper use of its machinery and will in a proper case, summarily
prevent its machinery from being used as a means of vexa&on and
oppression in the process of li&ga&on. It is an abuse of the process of the
court and contrary to jus&ce and public policy for a party to re-li&gate the
same issue, which has already been tried and decided earlier against him.
The re-agita&on may or may not be barred as res judicata. But if the same
issue is sought to be re-agitated, it also amounts to an abuse of the process
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of court. The court then has the power to stop such proceedings summarily
and prevent the &me of the public and the court from being wasted.
Undoubtedly, it is a maGer of court’s discre&on whether such proceedings
should be stopped or not and this discre&on has to be exercised with
circumspec&on.
25. On the ques&on, as to whether a plaint can be rejected under
Order 7 Rule 11 CPC, when the suit is clearly found to be barred by principle
of res-judicata contained in 11 CPC , it has been held by this Court in
Surender Mohan (deceased) by LR Vs. Baldev Singh and others (supra) as
under:-
“15. Consequently, I would find no ground to hold that a second suit
ins&tuted by the defendant in the first lis was maintainable, raising an issue
which had already been decided in the previous lis to which he was a party.
Though, undoubtedly, the law seGled on the issue is that an applica&on filed
under the provisions of Order 7 Rule 11 of the CPC would not normally be
rejected on a principle of res judicata being raised, such a plea oDen being a
mixed ques&on of law and fact, however, in the present case, where the
second suit is obviously and wholly one seeking a declara&on on an issue
already clearly seGled in the previous lis between the same par&es, and the
relief claimed in the second suit to that effect is very clearly visible from a
plain reading of the plaint itself, then I would hold that the applica&on has to
be accepted and the plaint on that ground alone, despite the fact that
previous revisions filed by the present pe&&oner have been dismissed by this
court.”
26. Apart from above, in T. Arivandandam Vs. T.V. Satyapal
(supra), Hon’ble Supreme Court considered the ques&on about rejec&on of
a plaint under Order 7 Rule 11 CPC, wherein it was found that it is
manifestly fic&&ous and meritless. It will be apt to reproduce the
observa&ons made by Hon’ble Mr. Jus&ce V.R. Krishna Iyer in that case,
which are as under:-
“5. We have not the slightest hesita&on in condemning the pe&&oner for the
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gross abuse of the process of the court repeatedly and unrepentantly resorted
to. From the statement of the facts found in the judgment of the High Court,
it is perfectly plain that the suit now, pending before the First Munsif’s Court,
Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints.
The learned Munsif must remember that if on a meaningful-not formal-
reading of the plaint it is manifestly vexa&ous, and meritless, in the sense of
not disclosing a clear right to sue, be should exercise his power under Or. VII
Rule 11 C.P.C. taking care to see that the ground men&oned therein is fulfilled.
And, if clever, draDing has created the illusion of a cause of ac&on, nip it in the
bud at the first hearing by examining the party searchingly under Order X
C.P.C. An ac&vist Judge is the answer to irresponsible law suits. The trial court
should insist impera&vely on examining the party at the first bearing so that
bogus li&ga&on can be shot down at the earliest stage. The Penal Code (Ch.
XI) is also resourceful enough to meet such men, and must be triggered
against them. In this case, the learned Judge to his cost realised what George
Bernard Shaw remarked on the assassina&on of Mahatma Gandhi “It is
dangerous to be too good.”
27. It is clear from the legal posi&on explained by Hon’ble Supreme
Court as well as this High Court that when it is a clear case of re-li&ga&on
and the concealment of material facts from the Court, the Court should
strike off the plaint at the earliest instance and the filing of the subsequent
suit is a clear abuse of the process of the Court and that should not be
allowed.
(D) Bar of limita+on & rejec+on of plaint –
28. Apart from the fact that plaint of the present suit as filed by
Jaspal Kaur is liable to be rejected on the ground of res-judicata as the plea
raised by her in the second suit was already decided in the first li&ga&on
decided in 2009, the said plaint deserves to be rejected on other grounds
also. In the plaint Annexure P4 filed on 15.07.2014, while seeking a decree
of declara&on to the &tle of the suit property and seeking injunc&on to
direct the official defendants to make necessary correc&on in the sale deed
dated 19.09.1995, plain&ff- Jaspal Kaur pleaded her cause of ac&on in para
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No.7 of the plaint, as under:-
“7. That cause of ac&on arose to the plain&ff against the defendants
when the name of the plain&ff was wrongly men&oned in the sale deed as
Makhan Singh s/o Gurdial Singh instead of Jaspal Kaur D/o Gurdial Singh
and a few days back when the defendant no.1 and 2 refused to get
corrected the sale deed to the effect of name of vendees and when the
defendant no.3 threatened to alienate the property finally yesterday when
the defendants refused to make correc&on in their respec&ve cause of
ac&on.”
29. From the above-said para of the plaint, it is clear that cause of
ac&on is stated to have arisen in favour of the plain&ff, when sale deed was
executed in favour of Makhan Singh by incorpora&ng his name instead of
the name of plain&ff- Jaspal Kaur. The sale deed was executed in
September, 1995, whereas the present suit has been filed for seeking
declara&on and mandatory injunc&on in July, 2014 and thus, the suit is
clearly barred by limita&on and on this ground also, the plaint is liable to be
rejected in view of Order 7 Rule 1 clause (d) CPC.
[E) Maintainability of suit & rejec+on of plaint in the light of provisions of Order
21 CPC –
30. Moreover, as no&ced earlier that suit for specific performance
filed by Som Nath in the year 1999 was decreed on 10.08.2009 and in the
execu&on filed by him, sale deed was executed in his favour on 11.03.2013
pursuant to the order passed by the Court and then warrant of possession
was issued, when the judgment debtor – Makhan Singh, his wife Jaspal Kaur
and other family members obstructed the delivery of possession and the
Court was compelled to order for providing police help.
31. Order 21 Rule 97 of the Code of Civil Procedure deal with the
resistance or obstruc&on to possession of the immoveable property. The
decree holder can complain about the said obstruc&on by moving the
necessary applica&on and the appropriate order can be passed by the
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Execu&ng Court. Rule 99 further provides that if a person other than the
judgment debtor is dispossessed of the immoveable property by the decree
holder for possession of his property or where property has been sold in
execu&on by the purchaser thereof, such a person who is being
dispossessed may make an applica&on to the Court complaining of such
dispossession and such applica&on is to be adjudicated upon by the Court in
accordance with the provisions made herein before.
32. Order 21 Rule 101 CPC is very material in this regard, which
reads as under:-
“101. Ques7on to be determined. – All ques&ons (including ques&ons
rela&ng to right, &tle or interest in the property) arising between the par&es
to a proceeding on an applica&on under rule 97 or rule 99 or their
representa&ves, and relevant to the adjudica&on of the applica&on, shall be
determined by the Court dealing with the applica&on and not by a separate
suit and for this purpose, the Court shall, notwithstanding anything to the
contrary contained in any other law for the &me being in force, be deemed to
have jurisdic&on to decide such ques&ons.”
33. It is, thus, clear that all ques&ons rela&ng to right, &tle or
interest in property, arising between the par&es are to be decided by the
Execu&ng Court and not by an independent suit.
34. In the present case also, in case the plain&ff- Jaspal Kaur, who
was obstruc&ng the delivery of possession had any right whatsoever as
claimed by her in the suit property, she could have filed the objec&ons
before the Execu&ng Court but cannot be allowed to maintain the
independent suit as filed by her and for this reason also, the plaint is liable
to be rejected.
35.1 In this regard, reference can be made to Sameer Singh and
another Vs. Abdul Rab and others (supra) wherein Hon’ble Supreme Court
has held as under:-
“13. To appreciate the submissions raised at the Bar, it is necessary to
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appreciate the whole gamut of provisions contained in Order XXI, Rules 97 to
103 of CPC and the fundamental objects behind the same. Rule 97 deals with
resistance or obstruc&on to possession by the holder of a decree for
possession or the purchaser of any such property sold in execu&on of a
decree. It empowers such a person to file an applica&on to the Court
complaining of such resistance or obstruc&on and requires the Court under
sub-rule (2) to adjudicate upon the applica&on in accordance with the
provisions provided therein. Rule 99 deals with dispossession by decree-
holder or purchaser. It s&pulates that where any person other than the
judgment-debtor is dispossessed of immovable property by the holder of a
decree for the possession of such property or where such property has been
sold in execu&on of a decree, by the purchaser thereof, he may make an
applica&on to the Court complaining of such dispossession. The Court is
obliged to adjudicate such an applica&on. Thus this rule, as is manifest,
includes any person other than the judgment-debtor. Rule 101 deals with the
ques&ons to be determined. It provides that all ques&ons including ques&ons
rela&ng to right, &tle or interest in the property arising between the par&es to
a proceeding on an applica&on under Rule 97 or Rule 99 or their
representa&ves, and relevant to the adjudica&on of the applica&on shall be
determined by the Court dealing with an applica&on and not by a separate
suit and for the said purpose, the execu&ng court has been conferred the
jurisdic&on to decide the same. Rule 100 deals with orders to be passed upon
applica&on complaining of dispossession. It is apt to reproduce the said rule:-
“Rule 100. Order to be passed upon applica7on complaining of
dispossession.- Upon the determina&on of the ques&ons referred in Rule 101,
the Court shall, in accordance with such determina&on,-
(a) make an order allowing the applica&on and direc&ng that the
applicant be put into possession of the property or dismissing the
applica&on; or
(b) pass such order as, in the circumstances of the case, it may deem
fit.”
14. Rule 98 deals with orders aDer adjudica&on. Sub-rule (1) provides that
upon the determina&on of ques&ons referred to in Rule 101, the Court in
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accordance with determina&on and subject to provisions of sub-rule (2)
therein make an order allowing the applica&on and direc&ng that the
applicant be put in possession of the property or dismissing the applica&on or
pass such other order, as in the circumstances of the case it may deem fit. As
far as sub-rule (2) is concerned, the same is not necessary to be taken note of
for the purposes of present case. Rule 103 which is significant reads as
follows:-
“Rule 103. Orders to be treated as decrees.- Where any applica&on
has been adjudicated upon under Rule 98 or Rule 100, the order made
thereon shall have the same force and be subject to the same
condi&ons as to an appeal or otherwise as if it were a decree.”
15. The submission of the learned counsel for the appellants is that if the
scheme underlying the said Rules is appositely appreciated, it is clear as
crystal that the legislature in order to avoid mul&plicity of proceedings has
empowered the execu&ng court to conduct necessary enquiry and adjudicate
by permiLng the par&es to adduce evidence, both oral and documentary, and
to determine the right, &tle and interest of the par&es and, therefore, such an
order has been given the status of a decree. As has been put forth by him, a
proceeding in terms of Rule 97 or Rule 99 is in the nature of a suit and the
adjudica&on is similar to that of a suit and when in the case at hand, the Court
has declined to embark upon any enquiry by calling for reply, recording
evidence and appropriately adjudica&ng the controversy, the order passed
cannot be regarded under Rule 103 of Order XXI as a decree. In this context,
the authori&es that have been commended to us need to be carefully
no&ced.”
35.2 ThereaDer, Hon’ble Supreme Court referred to the various
precedents and then concluded in para No.21 as under:-
“21. The aforesaid authori&es clearly spell out that the court has the
authority to adjudicate all the ques&ons pertaining to right, &tle or interest in
the property arising between the par&es. It also includes the claim of a
stranger who apprehends dispossession or has already been dispossessed
from the immovable property. The self-contained Code, as has been
emphasised by this Court, enjoins the execu&ng court to adjudicate the lis andPage No.26 out of 30 pages
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the purpose is to avoid mul&plicity of proceedings. It is also so because, prior
to 1976 amendment the grievance was required to be agitated by filing a suit
but aDer the amendment, the en&re enquiry has to be conducted by the
execu&ng court. Order XXI, Rule 101 provides for the determina&on of
necessary issues. Rule 103 clearly s&pulates that when an applica&on is
adjudicated upon under Rule 98 or Rule 100 the said order shall have the
same force as if it were a decree. Thus it is a deemed decree.”
36. In another case &tled Ved Kumari (Dead through her Legal
Representa+ve) Dr. Vijay Aggarwal Vs. Municipal Corpora+on of Delhi
through its Commissioner, AIR 2023 Supreme Court 4155, a decree for
possession was passed. During execu&on, judgment debtor stated that suit
land was not in his possession, as it had been encroached upon. The
execu&on pe&&on was dismissed on the ground that the encroachers were
not party to the suit and, therefore, decree could not be executed. SeLng
aside the said order, it was held by the Hon’ble Supreme Court that it was
the duty of the Execu&ng Court to issue warrant of possession for effec&ng
delivery of the suit land to the decree holder and if any resistance was
offered by any stranger to the decree, the same could have been
adjudicated in accordance with Order 21 Rule 97 to 101 CPC and that the
Execu&ng Court was directed to execute the decree by effec&ng delivery of
physical vacant possession to decree holder in accordance with provisions
of Order 21.
37. Hon’ble Supreme Court in yet another case in Jini Dhanrajgir
and another Vs. Shibu Mathew and another, AIR 2023 Supreme Court
2567, held as under:-
“17. Sec&on 47 of the CPC, being one of the most important provisions
rela&ng to execu&on of decrees, mandates that the court execu&ng the
decree shall determine all ques&ons arising between the par&es to the suit or
their representa&ves in rela&on to the execu&on, discharge, or sa&sfac&on of
the decree and that such ques&ons may not be adjudicated in a separate suit.
What is intended by conferring exclusive jurisdic&on on the execu&ng court is
to prevent needless and unnecessary li&ga&on and to achieve speedy disposal
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of the ques&ons arising for discussion in rela&on to the execu&on, discharge
or sa&sfac&on of the decree. Should there be any resistance offered or
obstruc&on raised impeding due execu&on of a decree made by a court of
competent jurisdic&on, the provisions of Rules 97, 101 and 98 of Order XXI
enable the execu&ng court to adjudicate the inter se claims of the decree-
holder and the third par&es in the execu&on proceedings themselves to avoid
prolonga&on of li&ga&on by driving the par&es to ins&tute independent suits.
No wonder, the provisions contained in Rules 97 to 106 of Order XXI of the
CPC under the sub-heading “Resistance to delivery of possession to decree-
holder or purchaser” have been held by this Court to be a complete code in
itself in Brahmdeo Chaudhary (supra) as well as in a decision of recent origin
in Asgar vs. Mohan Verma, (2020) 16 SCC 230. In the laGer decision, it has
been noted that Rules 97 to 103 of Order XXI provide the sole remedy both to
par&es to a suit as well as to a stranger to the decree put to execu&on.
18. In Bhanwar Lal vs. Satyanarain, (1995) 1 SCC 6, this Court held that when
any person, whether claiming deriva&ve &tle from the judgment-debtor or
sets up his own right, &tle or interest de hors the judgment debtor, the
execu&ng court whilst execu&ng the decree, in addi&on to the power under
Rule 35(3), is empowered to conduct an enquiry whether the obstruc&on by
that person is legal or not.
19. This Court in Noorduddin v. Dr. K.L. Anand, (1995) 1 SCC 242, reiterated
that the execu&ng court was bound to adjudicate the claim of an
obstruc&onist and to record a finding allowing or rejec&ng the claim which
was laid before the execu&ng court, the person being neither a party to the
earlier proceedings nor the decree being passed against him.
20. Yet again, in Babulal v. Raj Kumar & Ors., (1996) 3 SCC 154, this Court
aDer seLng aside the order impugned held that a determina&on is required
to be conducted under Order XXI Rule 98 before removal of the obstruc&on
caused by the objector and a finding is required to be recorded in that regard.
It was also held that the execu&ng court was required to determine the
ques&on rela&ng to when the appellants had objected to the execu&on of the
decree as against those appellants who were not par&es to the decree for
specific performance.
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21. The decision in Brahmdeo Chaudhary (supra) cited by Mr. Chitambaresh,
is also to the same effect.
22. Considering the scheme of Order XXI Rules 97 to 106, this Court
in Silverline Forum Pvt. Ltd. v. Rajiv Trust & Anr., 17 (1998) 3 SCC 723 , found
it difficult to agree with the High Court that resistance or obstruc&on made by
a third party to the decree put to execu&on cannot be gone into under Order
XXI Rule 97. Referring to Rules 97 to 106, this Court further held that they
were intended to deal with every sort of resistance or obstruc&on raised by
any person and that Rule 97(2) made it incumbent on the court to adjudicate
upon such complaint in accordance with the procedure laid down. This Court
also proceeded to observe:
“It is clear that execu&ng court can decide whether the resistor or obstructer
is a person bound by the decree and he refuses to vacate the property. That
ques&on also squarely falls within the adjudicatory process contemplated in
Order 21, Rule 97(2) of the Code. The adjudica&on. men&oned therein need
not necessarily involve a detailed enquiry or collec&on of evidence. Court can
make the adjudica&on on admiGed facts or even on the averments made by
the resistor. Of course, the Court can direct the par&es to adduce evidence for
such determina&on if the Court deems it necessary”.
23. The long line of precedents notwithstanding, it is indeed true that in terms
of the ordainment of Rule 102 of Order XXI, Rules 98 and 100 thereof would
not apply to resistance or obstruc&on in execu&on of a decree for the
possession of immovable property by a person to whom the judgment-debtor
has transferred the property aDer the ins&tu&on of the suit in which the
decree was passed.”
Conclusion:
38. In view of the afore-said legal posi&on, it is held that in case
the plain&ff Japsal Kaur claim to be in possession of the suit land, she could
have filed the objec&ons under Order 21 CPC before the Execu&ng Court in
the execu&on filed by the decree holder- Som Nath, in whose favour a
decree for specific performance has already been passed. In fact, Smt.
Jaspal Kaur filed the objec&ons before the Execu&ng Court and the same
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were dismissed by the Execu&ng Court and for this reason also, the
independent suit filed by her was not maintainable , and for this reason
also, the plaint is liable to be rejected.
39. In view of the en&re discussion as above, it is found that plaint
is liable to be rejected for various reasons – concealment of material facts
about previous li&ga&on and the result thereof, res-judicata, bar of
limita&on and non-maintainability of the suit in view of provisions of Order
21 CPC.
40. As such, it is held that the impugned order passed by learned
Addi&onal District Judge, Ludhiana cannot be sustained in the eyes of law.
The said order is hereby set aside. The order of the trial Court is hereby
restored, whereby the applica&on under Order 7 Rule 11 CPC filed by Som
Nath was allowed, rejec&ng the plaint of Smt. Jaspal Kaur.
41. The present appeal is allowed accordingly.
September 09, 2024 (DEEPAK GUPTA)
renu JUDGE
Whether Speaking/reasoned Yes
Whether Reportable Yes
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