Madhya Pradesh High Court
Sugra Begum (Deceased) Wd/O Late Shri … vs The State Of Madhya Pradesh on 16 June, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 16th OF JUNE, 2025
Civil Revision No.705 of 2024
SUGRA BEGUAM AND OTHERS
Versus
STATE OF MADHYA PRADESH
............................................................................................................................................
Appearance :
Shri Shubham Manchani - Advocate for the applicants.
Shri Ajay Ojha - Government Advocate for the respondent/State.
............................................................................................................................................
Reserved on : 24.04.2025
Pronounced on : 16.06.2025
ORDER
Pleadings are complete. With the consent of learned counsel for the
parties, the matter is finally heard.
2. This civil revision is filed under Section 115 r/w Section 151 of
the Code of Civil Procedure challenging the order dated 15.07.2024
(Annexure-P/11) passed in a pending civil suit i.e. RCSA No.147/2023
(State of Madhya Pradesh v. Sugra Begum and others) whereby an
application filed by the applicants under Section 11 of CPC has been
rejected by the trial Court.
3. By the impugned order, the trial Court has rejected the application
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filed under Section 11 of CPC raising a ground that suit is barred by res
judicata because issue raised in civil suit has already been settled up to
the Supreme Court, therefore, for the same issue and even for the same
relief, second suit is barred and, therefore, it is not maintainable.
However, the trial Court has rejected the application by the impugned
order holding therein that it is not possible to ascertain that the suit is
barred by res judicata and observed that it can be decided only after
framing the issue and recording the evidence of the parties.
4. Learned counsel for the applicants has submitted that the trial
Court has not properly considered the application and on a general
perception, decided the same saying that the question of res judicata
shall be decided only after recording the evidence of the parties but it
cannot be decided at initial stage whereas the suit could have been
decided and dismissed on the basis of averments made in the plaint
which clearly indicate that the suit is not maintainable because earlier
also for the same relief, the suit travelled up to the Supreme Court and
the issue involved therein has been decided.
5. Although, the counsel for the State has supported the order passed
by the trial Court and relied upon several judgments of the Supreme
Court and also of this High Court saying that it is settled principle of
law that the issue of res judicata has to be decided after recording the
evidence of the parties because it is the main question of facts and law.
6. Considering the rival contentions of learned counsel for the parties
and judgments relied upon by them, to answer the questions that emerge
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to be adjudicated, it is apposite to mention the necessary facts of the
case, which are as under:-:-
(6.1) On 10.12.1999, an ex parte judgment and decree for
declaration of title and possession as well as permanent
injunction was passed by the First Civil Judge Class-II, District
Satna (MP) in respect of a land situated over Survey Nos.502,
506, 507, 508, 532 and 533 at Tahsil Raghurajnagar, District
Satna. The said judgment and decree is available on record as
Annexure-P/2.
(6.2) Thereafter, that judgment and decree was appealed under
Section 96 of the CPC and the Fifth Additional District Judge,
Satna, has decided the said appeal preferred by
respondent/State vide judgment and decree dated 21.07.2005
(Annexure-P/3) setting aside the judgment and decree passed
by the trial Court.
(6.3) The judgment and decree passed by the first Appellate Court
was again assailed by the present applicants by filing a second
appeal i.e. S.A. No.1913/2005 (Sugra Begum and others Vs.
State of M.P.) decided by judgment and decree dated
23.02.2017 (Annexure-P/4) allowing the same setting aside the
judgment and decree passed by the first Appellate Court and
restored the judgment and decree passed by the trial Court on
10.12.1999.
(6.4) Though against the said judgment and decree, the State
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preferred an SLP(C) Diary No(s).4591/2018, but the Supreme
Court vide order dated 19.02.2018 (Annexure-P/5) has
dismissed the same on the ground of delay.
(6.5) On 16.03.2023, the plaintiff/respondent herein has filed a fresh
suit i.e. RCSA No.147/2023 in respect of the same property
before the First Civil Judge (Junior Division) Satna with a
prayer to set aside the judgment and decree dated 10.12.1999
(Annexure-P/2) which was passed in favour of present
applicants. The ground of challenge was that the said judgment
and decree was obtained by playing a fraud and also seeking
relief that it be declared that the suit land belongs to
plaintiff/respondent herein.
(6.6) After perusal of averments made in the plaint, the present
applicants being defendants have moved an application before
the trial Court for rejection of the plaint and dismissal of suit
alleging therein that it is barred by Section 11 of CPC, but that
application has been rejected by the trial Court vide the
impugned order dated 15.07.2024.
7. As per the stand taken by the plaintiff/respondent herein that the
original decree dated 10.12.1999 has been obtained by the present
applicants fraudulently and concealing material facts. In the plaint dated
16.03.2023 (Annexure-P/8), it is repeatedly averred that the judgment
and decree dated 10.12.1999 has been obtained by fraud suppressing
material facts, but nowhere it is shown as to what type of fraud has been
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played by the present applicants and what type of material facts have
been suppressed by them. It is also averred that even the Supreme Court
has not decided the SLP on merit, but it got dismissed on the ground of
delay.
8. In the plaint itself, it is admitted by the plaintiff/respondent herein
about the fact that the suit of similar nature even between the same
parties has been decided upto the Supreme Court, but after almost six
years from the date of the order passed by the Supreme Court, the
second civil suit has been filed. In paragraph-12 of the plaint, it is
mentioned that the cause of action accrues in favour of the
plaintiff/respondent herein only when a Government Advocate has given
opinion to file a civil suit and then the suit has been filed. Thus, it is
clear from the plaint itself that undisputably the issue travelled upto the
Supreme Court in respect of the same property and also for the relief
claimed therein and cause of action accrues in favour of the
plaintiff/respondent herein only from the date of opinion given by the
Government Advocate. It is also clear from the plaint itself that second
civil suit has been filed seeking setting aside the judgment and decree
dated 10.12.1999 as the same had been obtained by playing a fraud and
concealing material facts.
9. However, I am surprised as to how a cause of action would accrue
in favour of the plaintiff/respondent herein from the date on which the
opinion was given by the Government Advocate. This analogy is
unacceptable because law nowhere provides such type of cause of action
and the date of starting point of limitation, therefore, in my opinion, the
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cause of action as has been averred in paragraph-12 of the plaint, is no
cause of action in the eyes of law. The suit could have been dismissed
also on the ground that no cause of action survives.
10. From the averments made in the plaint, it is clear that the second
suit has been filed on the ground that the judgment and decree dated
10.12.1999 was obtained fraudulently and concealing material facts, but
the plaint nowhere speaks as to what fraud has been played and what
type of material facts have been suppressed by the present applicants
whereas the plaintiff/respondent herein had filed an appeal against the
said judgment and decree and their first appeal was allowed but in
second appeal before this Court, the judgment and decree of the first
Appellate Court was set aside, meaning thereby, on each and every
occasion, they contested the matter and they were present before the
Courts even before the Supreme Court. When they preferred the SLP,
they could convince the Supreme Court that the judgment and decree
dated 10.12.1999 since obtained fraudulently by concealing material
facts, therefore, the limitation would not come in their way for
dismissing the SLP.
11. However, from the orders of the Courts and even from the order of
Supreme Court, it does not reveal that the State has ever taken a ground
of fraud and concealing material facts by the present applicants. In my
opinion, if the respondent/State is allowed to continue to file such type
of suit then it would create a very absurd position under the law because
this attitude of the parties would be endless and there would be no end
of litigation. It may be continued only alleging the fraud against the
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party that the previous litigation was decided without considering the
material facts. This practice is highly unacceptable. Even otherwise, in
my opinion, Order 6 Rule 4 of CPC specifically provides the
requirement to make an averment if the suit is filed seeking setting aside
a judgment and decree on the same issue alleging fraud and then only it
has to be specifically pleaded as to what type of fraud has been
committed. As such, the plaint filed by the plaintiff/respondent herein is
not tenable as the same does not fulfill the requirement of Order 6 Rule
4 of CPC.
12. The counsel for the respondent/State has placed reliance upon a
judgment reported in 2023 LiveLaw (SC) 799 (Keshav Sood v. Kirti
Pradeep Sood & Ors.), in which the Supreme Court has observed that
the issue of res judicata could not have been decided on an application
filed under Order 7 Rule 11 of CPC because while deciding such
application, the Court has to see the averments made in the plaint.
13. However, this law of the Supreme Court even otherwise does not
go against the present applicants because from the averments of the
plaint, it is clear that the judgment and decree dated 10.12.1999 has been
affirmed upto the Supreme Court and the application of res judicata
could have been decided on the basis of averments made in the plaint
itself.
14. He has further placed reliance upon a judgment reported in (2021)
12 SCC 809 (Vaish Aggarwal Panchayat v. Inder Kumar and others)
in which also, the Supreme Court has observed that the issue of res
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judicata if on the basis of plaint alone cannot be decided, then the same
cannot be rejected and the issue has to be decided by conducting trial,
but again, this analogy is not applicable in the present case because all
the facts are being gathered and taken note of on the basis of averments
made in the plaint.
15. In a case reported in (2021) 9 SCC 99 (Srihari Hanumandas
Totala v. Hemant Vithal Kamat and others), the Supreme Court has
again reiterated the same analogy that if on the basis of plaint’s
averments, question of res judicata cannot be decided, then it is required
to be taken into account the other aspects of the matter by conducting
trial.
16. Further, in a case reported in (2010) 8 SCC 383 (Meghmala and
others v. G. Narasimha Reddy and others), the Supreme Court has
observed that if an order/judgment is obtained by fraud then such order
or judgment is not sustainable. The observation made in the said case is
as under:-
“28. It is settled proposition of law that where an
applicant gets an order/office by making
misrepresentation or playing fraud upon the competent
authority, such order cannot be sustained in the eye of
the law. “Fraud avoids all judicial acts, ecclesiastical
or temporal.” (Vide S.P. Chengalvaraya
Naidu v. Jagannath [(1994) 1 SCC 1 : AIR 1994 SC
853] .) In Lazarus Estates Ltd. v. Beasley [(1956) 1 QB
702 : (1956) 2 WLR 502 : (1956) 1 All ER 341 (CA)]
the Court observed without equivocation that : (QB p.
712) “No judgment of a court, no order of a Minister,
can be allowed to stand if it has been obtained by
fraud. Fraud unravels everything.”
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29. In A.P. State Financial Corpn. v. GAR Re-Rolling
Mills [(1994) 2 SCC 647 : AIR 1994 SC 2151]
and State of Maharashtra v. Prabhu [(1994) 2 SCC
481 : 1994 SCC (L&S) 676 : (1994) 27 ATC 116] this
Court observed that a writ court, while exercising its
equitable jurisdiction, should not act as to prevent
perpetration of a legal fraud as the courts are obliged
to do justice by promotion of good faith. “Equity is
always known to defend the law from crafty evasions
and new subtleties invented to evade law.”
17. However, as per the submissions made by the counsel for the
applicants and their stand before this Court that mere recital of fraud in
the plaint by adopting clear drafting does not give rise to the cause of
action that too after six years from the date of order passed by the
Supreme Court in SLP. They have also relied upon a judgment reported
in 2022 SCC OnLine SC 1330 (C.S. Ramaswamy v. V.K. Senthil and
others) and other connected appeals, and in a case of Srihari
Hanumandas Totala (supra).
18. I have heard the rival contentions of learned counsel for the
parties and perused the material available on record so also the
judgments on which reliance has been placed by them.
19. I have already observed that what averments have been made in
the plaint and whether the application and objection raised by the
present applicants before the Court could have been decided only on the
basis of averments of the plaint, then in my opinion ‘YES’, it can be
decided because everything has been narrated in the plaint and
subsequent suit has been filed only on the ground that the decree was
obtained by fraud and concealing material facts.
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20. Although, the counsel for the respondent/State has placed reliance
upon several judgments of the Supreme Court and on that aspect, this
Court does not have any distinct opinion but at the same time, the Court
has to see the analogy laid down by the Supreme Court in a case
reported in (1998) 3 SCC 573 (K.K. Modi v. K.N. Modi and others),
in which the Supreme Court has observed as under:-
“44. One of the examples cited as an abuse of the
process of the court is relitigation. It is an abuse of the
process of the court and contrary to justice and public
policy for a party to relitigate the same issue which has
already been tried and decided earlier against him. The
reagitation may or may not be barred as res judicata.
But if the same issue is sought to be reagitated, it also
amounts to an abuse of the process of the court. A
proceeding being filed for a collateral purpose, or a
spurious claim being made in litigation may also in a
given set of facts amount to an abuse of the process of
the court. Frivolous or vexatious proceedings may also
amount to an abuse of the process of the court
especially where the proceedings are absolutely
groundless. The court then has the power to stop such
proceedings summarily and prevent the time of the
public and the court from being wasted. Undoubtedly,
it is a matter of the court’s discretion whether such
proceedings should be stopped or not; and this
discretion has to be exercised with circumspection. It
is a jurisdiction which should be sparingly exercised,
and exercised only in special cases. The court should
also be satisfied that there is no chance of the suit
succeeding.”
21. Thus, in view of the above observation of the Supreme Court, it is
clear that the Court cannot permit any such litigation which from open
eye can be said to be an abuse of process of Court. It is also observed by
the Supreme Court that the Court has the power to stop such proceeding
summarily and prevent the time of the public and the Court from being
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wasted and in my opinion, it is not only a clear cut case of abuse of
process of law but the same is a pure wastage of the precious time of the
Court.
22. If the averments of the plaint are seen, then there is no extra effort
required for the Court to see that such suit is not maintainable and it
cannot be allowed to be continued.
23. Earlier, this Court had an occasion to consider this aspect and in
case of Municipal Council Khajuraho v. Brajkishor Agrawal and
others, S.A. No.525 of 2015 decided vide order dated 03.10.2015, the
Court has considered as to in what manner the plea of res judicata at the
threshold can be decided and observed as under:-
“11. From perusal of the averments made in the
plaint itself and the application filed under Order 7
Rule 11 of CPC, it reveals that the
defendant/respondent has claimed that one suit has
already been decided in which the original owner, i.e.
SADA was the party and, therefore, a second suit that
too after such a long time is not maintainable. I find
that there is nothing wrong committed by the trial
Court and the legal position as has been laid down by
the Supreme Court in the cases on which counsel for
the appellant has placed reliance in the facts and
circumstances of the case, is not applicable because it
is a case in which Section 11 of CPC comes into
operation. Section 11 is relevant, which reads as
under:-
“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
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subsequently raised, and has been heard and
finally decided by such Court.
Explanation I.– The expression former suit
shall denote a suit which has been decided
prior to a suit in question whether or not it
was instituted prior thereto.
Explanation II.– For the purposes of this
section, the competence of a Court shall be
determined irrespective of any provisions as
to a right of appeal from the decision of such
Court.
Explanation III.–The matter above referred
to must in the former suit have been alleged
by one party and either denied or admitted,
expressly or impliedly, by the other.
Explanation IV.– Any matter which might
and ought to have been made ground of
defence or attack in such former suit shall be
deemed to have been a matter directly and
substantially in issue in such suit.
Explanation V.– Any relief claimed in the
plaint, which is not expressly granted by the
decree, shall for the purposes of this section,
be deemed to have been refused.
Explanation VI.– Where persons litigate
bona fide in respect of a public right or of a
private right claimed in common for
themselves and others, all persons interested
in such right shall, for the purposes of this
section, be deemed to claim under the
persons so litigating.
[Explanation VII.– The provisions of this
section shall apply to a proceeding for the
execution of a decree and references in this
section to any suit, issue or former suit shall
be construed as references, respectively, to a
proceeding for the execution of the decree,
question arising in such proceeding and a
former proceeding for the execution of that
decree.
Explanation VIII.– An issue heard and
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suit, notwithstanding that such Court of
limited jurisdiction was not competent to try
such subsequent suit or the suit in which such
issue has been subsequently raised.]”
The aforesaid section very categorically provides and
it starts with non obstante clause that ‘no Court shall
try any suit’, meaning thereby that there is a clear
binding upon the Court for not trying any suit which
has already been decided and the Court cannot shut its
eyes when the facts were very much clear before the
Court and the Court was fully aware of the fact that the
suit has already been decided and the issue involved in
the case has already been dealt with earlier and the
decree has been passed in that regard. Only because
the SADA merged in the Nagar Palika Parishad, the
subsequent civil suit cannot be entertained at the
instance of Nagar Palika Parishad and if it is
entertained then it would be a mockery of justice
because the said civil suit is absolutely vexatious and
meritless and result of the same is known to
everybody. The Karnataka High Court in case of Smt.
Sofyamma K. J. Vs. Sri. Chandy Abraham passed in
R.F.A. No. 722 of 2008 has dealt with the situation
and decided the said issue observing therein the scope
of Section 11 as well as Order 7 Rule 11 of CPC. The
observations made by the Karnataka High Court in
paras 11 to 23 are as under:-
“11. In view of the above contentions, the question
that arises for consideration of this Court is:
“Whether the rejection of the plaint under the
impugned order is sustainable in law?”
12. The certified copies of the Judgments in O.S.
No. 5693/1992, RFA No. 714/1994, C.A. No.
36/1999 and R.P. No. 1434/2004 in C.A. No.
36/1999 are produced before the trial Court and
they are available in the records. They show that
plaintiff claimed permanent injunction on the
ground that she is the absolute owner and in
possession of plaint schedule “A” and “B”
properties as purchaser and in respect of plaint
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schedule “C” property as prospective purchaser.
She claimed that when the sale deeds and
agreement of sale were executed in her favour the
power of attorney executed by her mother in law
in favour of her husband was in force and
therefore, her sale deeds are valid. She further
contended that in view of the registered sale deeds
and agreement of sale in her favour, the
subsequent sale deeds in favour of the defendant
executed by her brother in law are invalid. Thus, it
is clear that in the said proceedings the Court was
called upon to decide not the issue of possession
of the property simpliciter, but it was called upon
to decide the plaintiff’s lawful possession of the
suit properties. Issue No. 1 was, “Whether the
plaintiff is in lawful possession of the suit
properties?”
13. To legitimize her possession, she traced her
right through the sale deeds and agreement of sale.
Therefore, in those proceedings the trial Court, the
First Appellate Court and the Apex Court were
required to adjudicate on the merits/legality of the
sale deeds and the sale agreement. In fact the
reading of the judgments show that the Courts
considered the question of title to consider the
lawful possession.
14. Section 11, CPC says, “No Court shall try any
suit or issue in which the matter directly arid
substantially in issue has been directly arid
substantially in issue in a former suit between the
same parties…….. has been heard arid finally
decided by such Courts”. The plaintiff does not
dispute the judgments in the earlier proceedings
referred to supra. In those cases, though she had
not filed that suit for declaration of title and that
was a suit for bare injunction, the Courts decided
the legality of the sale deed/title of plaintiff
because the claim of possession was based on the
title.
15. In this context it is necessary and relevant to
refer to paragraph 16 of the judgment in RFA No.
714/1994.
“16. It is contended by Sri. Raghavachar,
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learned advocate for the plaintiff relying upon
certain decisions that it is necessary for this
court to give finding on title of the plaintiff
since the plaintiff seeks the relief prayed for in
the suit basing the same on her title. On the
other hand, learned counsel appearing for the
plaintiff submitted that a separate suit is
pending filed by the defendant for declaration
and the question of title could be gone into in
that proceedings. I am not inclined to accept
the said submission made on behalf of the
plaintiff. Plaintiff has filed this suit based on
title. It is her definite case that she is the
owner of the property and the defendant is
interfering with her possession. On the other
hand the defendant asserts that he is the owner
having purchased the same from the true
owner and since the purchase, he is in
possession and it is the plaintiff, who is
causing obstacles in his possession and
enjoyment.
17. The Hon’ble Supreme Court in
Corporation City of Bangalore v. M. Papaish,
(1989) 3 SCC 612 : AIR 1989 SC 1809, has
held that when the foundation of claim of
plaintiff was title, the court has to consider the
question of tide and see whether the plaintiff
has established her title in order to get an
order of injunction. That was also a case for
perpetual injunction. In Nagarapalike v.
Jagatsingh (1995) 3 SCC 426 : (AIR 1995 SC
1377), the Hon’ble Supreme Court has
observed while considering similar facts that
“there is no substance in the stand taken by
the respondent that even if he had failed to
prove his title, the suit filed on behalf of the
respondents should be treated as a suit based
on possession and dispossession in terms of
section 6 of the Specific Relief Act. Once a
suit has been filed by the respondent claiming
to be the owner arid being in possession of the
land in question, the suit cannot be treated as a
suit based on possession and dispossession
without reference to title”. The Hon’ble
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Supreme Court held that in such case, the
Court is to record its finding on the question
of title. This court in B.P. Sadashivaiah v.
Parvathamma ILR 1994 Kar 2671 has held
that the court trying a suit for permanent
injunction based on title has to consider the
said question before it decides to decree or
dismiss the suit. In this case, the plaintiff has
filed the suit stating that she is the owner of
the property by virtue of the sale deed and
agreement and the defendant is interfering
with her possession and the case of the
defendant is that he is the owner by virtue of
the sale deeds in his favour executed by the
true owner and that he is in possession. In,
view of these, it is necessary for this court to
go into the title of the parties”
16. The Courts in the above said proceedings
held that the power of attorney executed in
favour of the plaintiff’s husband by her
mother-in-law did not include a clause to
empower him/agent to alienate the properties.
Therefore, the Courts held that the sale deeds
and agreement of sale in favour of the plaintiff
are null and void as the vendor had no
competency to sell them. Therefore, in
O.S.5693/1992 plaintiff was very clear on the
point that her, right to possession is decided
on the basis of her title deeds and they are so
adjudicated. Therefore, it is clear that though
the suit was not for declaration of title of the
plaintiff on the basis of the sale deeds and
agreement of sale, legality/merit of those
documents was substantially an issue in the
said case. Therefore, the suit is clearly hit by
the principles of res judicata.
17. So far as the contention that the trial Court
ought to have framed an issue and given an
opportunity to the plaintiff to adduce evidence
on that issue of res judicata and trial Court
should have gone through the pleadings in
those cases etc., it is to be seen that Section
11, CPC creates a total bar to entertain a suit.
The words employed in Section 11 are thatSignature Not Verified
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if it comes to the notice of the Court that the
issue in the suit was directly and substantially
in issue in former suit between the same
parties and such issue had been raised, heard
and finally decided, Court cannot proceed
with the matter. When the reading of the
admitted documents viz., Judgments in the
former suit, Regular First Appeal, Civil
Appeal and Review Petition clearly showed
that the issue in the present suit is already
decided finally in the former suit, there is no
question of framing an issue and trying the
same as a preliminary issue. There is a total
bar for trial of such suit.
18. In Hardesh Ores Private Limited referred
to supra invoking Order VII, Rule 11 CPC the
plaints were sought to be rejected on the
ground of bar of limitation. There it was
argued that to invoke Order VII, Rule 11 CPC
defendant’s case need not be considered and
the matter must be decided on the basis of the
averments of the plaint alone. In those cases
the plea of limitation was raised in the written
statement. The Trial Court rejected the plaints
and the High Court upheld such rejection. The
Apex Court also upheld the rejection.
Therefore, the said judgment in no way
advances the case of the plaintiff.
19. A reading of para 17 in Vaish Aggarwal
Panchayat’s’case shows that in that matter the
former suit and the later suit were riot
between the same parties and there it was
alleged that the judgment in the former suit
was an outcome of fraud and collusion
between the parties to the said. suit.
Therefore, it was held that, the finding on the
issue of res judicata ought to have been given
on recording the evidence. Therefore, the said
judgment is not applicable.
20. Paragraph 42 of the Judgment in
Ramachandra Dagdu Sonavane (Dead) by
L.Rs.’s case, shows that though the, appellants
contended that the question of res judicataSignature Not Verified
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CR-705-2024ought to have been decided only on the
production of the pleadings and the judgments
in both the suits, the same was not accepted. It
was held that in the judgment of the earlier
suit, the Judge in extenso had referred to the
pleadings of the parties in the earlier suit and
the finding on the question of res judicata is
given on appreciating the copy of the
judgment of the earlier suit. In this case the
earlier suit viz., O.S.5693/1992 was
admittedly between the same parties and it
was her own suit. The copies of the Judgment
in the said case right from the suit till the C.A.
and Review Petition are produced before the
Court and based on them the trial Court has
rejected the plaint. Therefore, the judgments
relied upon by the appellant are not applicable
to the facts of this case.
21. In Sulochana Amma v. Narayanan Nair
((1994) 2 SCC 14 : AIR 1994 SC 152) it was
held:
“The decree passed in injunction suit
wherein issue regarding title of the party
was directly and substantially in issue and
decided and attained finality would
operate as res judicata in a subsequent suit
based on title, where the same issue
directly and substantially arises between
the parties.”
22. The T. Aravindam v. T.V. Sathyapal
((1977) 4 SCC 467 : AIR 1977 SC 2421) case
the Supreme Court held:
“Where the plaint is manifestly vexatious and
meritless in the sense of not disclosing the
right to sue, the trial court should exercise its
powers u/O. 7, Rule 11, CPC and bogus
litigation should not be permitted to go on”.
23. The plaint averments themselves show
that the defendant claimed title to the property
by virtue of the sale deed executed by her
brother-in-law as the power of attorney holder
of her mother-in-law. Still, she filed
O.S.5693/1992 for bare injunction. She fought
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that matter for more than two decades up to
the Supreme Court. It was open to her to
claim the relief of declaration of title. But, she
omitted to do that. Therefore, such omission
on her part to include the claim for declaration
of title bars the later suit by operation of
Order II, Rules (2 and 3), CPC. Looked at
from any angle, the impugned order of
rejection of plaint does not call for
interference by this Court. Therefore, appeal
dismissed with costs.”
12. Thus, it is clear that in the present case also when
the civil suit has already been decided and the judgment
and decree of the said case were before the Court at the
time of deciding the application and the Court was of
the opinion that the plaint filed by the plaintiff/appellant
is apparently barred by limitation and also that a second
suit as per Rule 11 of CPC is not maintainable, the
Court without taking any other fact outside the
pleadings of the plaint has decided the application filed
under Order 7 Rule 11 of CPC.
13. From perusal of the record, I am also of the
opinion that the trial Court did nothing wrong while
allowing the application and rejecting the plaint
restraining the plaintiff /appellant to proceed further or
to prosecute any matter for the same issue which has
already been decided long back. Thus, in my opinion,
no substantial question of law is involved in the appeal
and it merits dismissal.”
24. However, in case of Ramkishan Patel v. Om Prakash Mishra
and others (F.A. No.1866 of 2023) decided vide judgment dated
21.03.2025, the Court has decided the issue that if an objection is raised
under Order 7 Rule 11 of CPC for rejecting the plaint on the ground of
plea of res judicata, then what is required to be seen by the Court. The
observation made by this Court is as under:-
“11. Thus, this court is of the considered opinion that
the court below in its impugned judgment and decreeSignature Not Verified
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CR-705-2024dated 14.07.2023 has rightly allowed the application
filed under Order 7 Rule 11 of CPC rejecting the plaint
and it is also not required to frame any issue or to try
the suit if the facts are so clear from the plaint itself.
12. This court in one of the cases i.e. Second Appeal
No.525 of 2015 parties being Municipal Council,
Khajurao Vs. Brajkishor Agrawal and others, has
also laid down that in each and every occasion, it is not
required for the trial court to frame issue while deciding
the application filed under Order 7 Rule 11 of CPC
saying that suit is barred by law under the provision of
principles of res judicata. The observation made by this
court in the said case is as under:-
“9.There is no quarrel in respect of the fact that
if any question of res judicata is raised, then the
same can be decided by the Court after framing
issues and recording evidence of the parties so
as to determine whether question of res judicata
applies or not. Relying on the judgments placed
by counsel for the appellant, it was observed by
the Court that the basic requirement for
deciding the application under Order 7 Rule 11
CPC is the averments made in the plaint only.
This analogy is established and no argument is
required to accept the said analogy but at the
same time, it is also required to see as to in
what manner, application under Order 7 Rule 11
CPC has been decided by the Court below. On
perusal of the plaint and the averments made
therein, it is seen that the order of the trial Court
is based upon the averments made in the plaint
and application under Order 7 Rule 11 CPC has
been decided on the point that when the suit has
already been decided between the parties in
respect of the same property then how a second
suit for the same cause of action is
maintainable.
10.It is not a case that the fact with regard to the
judgment and decree passed earlier was not in
the knowledge of the plaintiff and it is also not
a case that they are disputing about the saidSignature Not Verified
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CR-705-2024fact. The averments made in the plaint,
especially paragraphs 3,4,7, 9 and 11 and also
the relief claimed in the plaint are relevant,
which read as under:-
”3- यह कि विशेष क्षेत्र प्राधिकरण खजुराहो का दिनांक
22.6.1998 को नगर परिषद खजुराहो में विलय हो गया था
और जिससे इसके बाद से उक्त भूमि नगर परिषद खजुराहो
के स्वामित्व एवं आधिपत्य की सम्पत्ति है। जिस पर सभी के
ज्ञान में तभी से नगर परिषद खजुराहो का वैधानिक रूप से
स्वत्व एवं कब्जा रहा है व आज है तथा जिसमे प्रतिवादी नं.-1
अथवा अन्य किसी का कोई हक व हिस्सा कब्जा व उपयोग
न कभी रहा है और न आज है।
4- यह कि भूमि खसरा न. 1735/11 (सत्रह सौ पैतीस बटा
एक अ) स्कवा 1.21 (एक दशमलव इक्कीस) एकड़ की
भूमि वादपत्र की कं डिका-3 में वर्णित भूमि खसरा नं.
1735/4अ (सत्रह सौ पैतीस बटा चार अ) रकवा 1.21 (एक
दशमलव इक्कीस) से लगी म०प्र०शासन के स्वत्व एवं कब्जा
की बजर पड़ती भूमि थी जिसे वाटिका विकास हेतु विशेष
क्षेत्र प्राधिकरण खजुराहो को सन् 1984 में कलेक्टर महोदय
छतरपुर द्वारा आबंटित किया गया था जिसके पश्चात् इस
भूमि की स्वामित्व एवं आधिपत्यधारी विशेष क्षेत्र प्राधिकरण
खजुराहो हो गया था तत्पश्चात् सन् 1998 में विशेष क्षेत्र
प्राधिकरण खजुराहो का विलय नगर परिषद खजुराहो मे हो
जाने के बाद इसका स्वामित्व व आधिपत्यधारी नगर परिषद
खजुराहो का हो गया था और तभी से आज तक इसी प्रकार
चला आ रहा है तथा जिसमें प्रतिवादी नं0-1 का न कभी पूर्व
में कोई स्वत्व व कब्जा रहा और न ही आज है।
7- यह कि प्रतिवादी नं0-1 में अपने उक्त अवैधानिक उद्दे श्य
से अनुचित रूप से यह लेख कर कि बादी के स्वत्व व
आधिपत्य की वादपत्र की कडिका-1 में वर्णित भूमि उसके
खसरा न 1735/1/2 (सत्रह सी पैतीस बटा एक बटा दो)
रकवा 0.224 (शून्य दशमलव दौ सौ चौबीस) आरे की भूमि
है तथा जिसका पूर्व में खसरा नं. 1735/1छ (सत्रह सी पैतीस
बटा एक छ) था जिसके संबंध में उसके द्वारा शासन म०प्र०
के विरूद्ध प्रस्तुत किये गये व्यवहार वाद क्र० 192/ए/92 में
उसके पक्ष में घोषणा एवं स्थायी निषेधाज्ञा की डिक्री दी गई
है तथा प्रतिवादी 10-1 को पता चला है कि वादी उसकी उक्त
भूमि पर चूना डालकर ले-आउट करने का प्रयास कर रहे है.
एक असत्य सूचना पत्र दिनांक 18.6.12 का वादी को अपने
अधिवक्ता जीतेन्द्र सिंह के माध्यम से भिजवाया था ।
9- यह कि जब वादी को पता चला कि प्रतिवादी नं०-1 अपने
अनुचित उद्दे श्य को पूरा करने के लिये उक्त व्यवहारवाद
क्र0-192/ए/92 में अनुचित रूप से तथा असत्य दस्तावेजों
तथा तथ्यों के आधार पर प्राप्त की गई दिनांक 23 11.92 की
उक्त शून्यवत् डिक्री की आड़ में दाबिया भूमि को अपनी
भूमि कहने लगा है और इसकी आढ़ में दाबिया भूमि में वादी
के शातिपूर्ण स्वत्व एवं आधिपत्य में नाजायज रूप से बिना
किसी अधिकार के अवरोध उत्पन्न करने की कोशिश में है।
जबकि प्रतिवादी नं0-1 को ऐसा कोई कार्य करने का कोई
अधिकार नहीं है। क्योंकि कथित व्यवहार प्रकरण में वादी
पक्षकार भी नहीं रहा है जिससे वादी को इस प्रकरण की
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कोई जानकारी नहीं है और जिससे कानूनन कथित डिक्री
एवं निर्णय दाबिया भूमि में वादी के हितों के प्रति शून्यक्त एवं
प्रभावहीन है।
11- यह कि प्रतिवादी क्रं 0-1 में उक्त सूचना पत्र की अवधि
पूर्ण होने के बाद आज तक वादी को भेजे गये नोटिस के
संबंध में लिये गये अपने निर्णय से लिखित रूप में सूचित नहीं
किया है तथा प्रतिवादी नं0-1 ने अपने लोगों के माध्यम से
एक धमकी देने लगा है कि यदि वह वादी की दाबिया भूमि
पर किसी प्रकार से कब्जा करने में सफल नहीं हो सका तो
मौका लगते ही अनुचित रूप से प्राप्त की गई उक्त शून्यवत्
डिक्री दिनांक 23.12.92 की आड़ में दाबिया भूमि को उक्त
व्यवहारवाद क्रमांक 192/ए/92 की भूमि बताकर किसी
आपराधिक किस्म के दंबग व्यक्ति को अंतरित कर देगा जो
अपने धनबल एं व बाहुबल से वादी की दाबिया भूमि पर बने
वादी के वाहन विश्राम स्थल पर जबरन नाजायज रूप से
कब्जा कर लेगा ।
प्रार्थना
1. यह कि वादी के पक्ष में प्रतिवादी क्रं 0-1 के विरूद्ध इस
प्रकार की घोषणात्मक डिक्री प्रदान की जाये की दाबिया
भूमि 1735/4अ एवं 1735/1अ जिसका उल्लेख वादपत्र की
कं डिका एक मे किया गया है वादी के स्वत्व एवं कब्जा की
सम्पत्ति है तथा व्यवहारवाद क्रं 0- 1192/ए/92 में तृतीय
व्यवहार न्यायाधीश वर्ग-1 छतरपुर से अनुचित रूप से
प्रतिवादी क्रं 0-1 द्वारा प्राप्त की गई डिक्री दिनांक 23.11.92
वादी के हितों के प्रति शून्यवत् होने से वादी पर बंधनकारी
नहीं है।
2. यह कि वादी के पक्ष में इस प्रकार की स्थायी निषेधाज्ञा
जारी की जाये कि प्रतिवादी नं0-1 भविष्य में स्वयं अथवा
अन्य किसी के माध्यम से दाबिया भूमि तथा उस पर निर्मित
वाहन विश्राम स्थल में वादी के शांतिपूर्ण स्वत्व एवं आधिपत्य
में कोई हस्तक्षेप न करे और किसी प्रकार से इसे किसी अन्य
को न अंतरित करे और न अंतरण हेतु कोई करार करें ।
3. यह कि खर्चा मुकदमा वादी को प्रतिवादी नं.-1 से दिलाया
जाये।
4. यह कि अन्य सहायता जो न्यायालय वादी के हक में उचित
समझे दिलायी जाये।”
11. From perusal of the averments made in the
plaint itself and the application filed under
Order 7 Rule 11 of CPC, it reveals that the
defendant/respondent has claimed that one suit
has already been decided in which the original
owner, i.e. SADA was the party and, therefore,
a second suit that too after such a long time is
not maintainable. I find that there is nothing
wrong committed by the trial Court and the
legal position as has been laid down by the
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Supreme Court in the cases on which counsel
for the appellant has placed reliance in the facts
and circumstances of the case, is not applicable
because it is a case in which Section 11 of CPC
comes into operation. Section 11 is relevant,
which reads as under:-
“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.
Explanation I.– The expression former suit
shall denote a suit which has been decided
prior to a suit in question whether or not it
was instituted prior thereto.
Explanation II.– For the purposes of this
section, the competence of a Court shall be
determined irrespective of any provisions as
to a right of appeal from the decision of such
Court.
Explanation III.–The matter above referred
to must in the former suit have been alleged
by one party and either denied or admitted,
expressly or impliedly, by the other.
Explanation IV.– Any matter which might
and ought to have been made ground of
defence or attack in such former suit shall be
deemed to have been a matter directly and
substantially in issue in such suit.
Explanation V.– Any relief claimed in the
plaint, which is not expressly granted by the
decree, shall for the purposes of this section,
be deemed to have been refused.
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Explanation VI.– Where persons litigate
bona fide in respect of a public right or of a
private right claimed in common for
themselves and others, all persons interested
in such right shall, for the purposes of this
section, be deemed to claim under the
persons so litigating.
[Explanation VII.– The provisions of this
section shall apply to a proceeding for the
execution of a decree and references in this
section to any suit, issue or former suit shall
be construed as references, respectively, to a
proceeding for the execution of the decree,
question arising in such proceeding and a
former proceeding for the execution of that
decree.
Explanation VIII.– An issue heard and
finally decided by a Court of limited
jurisdiction, competent to decide such issue,
shall operate as res judicata in a subsequent
suit, notwithstanding that such Court of
limited jurisdiction was not competent to try
such subsequent suit or the suit in which
such issue has been subsequently raised.]”
The aforesaid section very categorically provides
and it starts with non obstante clause that ‘no Court
shall try any suit’, meaning thereby that there is a
clear binding upon the Court for not trying any suit
which has already been decided and the Court
cannot shut its eyes when the facts were very much
clear before the Court and the Court was fully aware
of the fact that the suit has already been decided and
the issue involved in the case has already been dealt
with earlier and the decree has been passed in that
regard. Only because the SADA merged in the
Nagar Palika Parishad, the subsequent civil suit
cannot be entertained at the instance of Nagar Palika
Parishad and if it is entertained then it would be a
mockery of justice because the said civil suit is
absolutely vexatious and meritless and result of the
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same is known to everybody. The Karnataka High
Court in case of Smt. Sofyamma K. J. Vs. Sri.
Chandy Abraham passed in R.F.A. No. 722 of
2008 has dealt with the situation and decided the
said issue observing therein the scope of Section 11
as well as Order 7 Rule 11 of CPC. The
observations made by the Karnataka High Court in
paras 11 to 23 are as under:-
“11. In view of the above contentions, the question
that arises for consideration of this Court is:
“Whether the rejection of the plaint
under the impugned order is sustainable
in law?”
12. The certified copies of the Judgments in
O.S. No. 5693/1992, RFA No. 714/1994, C.A.
No. 36/1999 and R.P. No. 1434/2004 in C.A.
No. 36/1999 are produced before the trial
Court and they are available in the records.
They show that plaintiff claimed permanent
injunction on the ground that she is the
absolute owner and in possession of plaint
schedule “A” and “B” properties as purchaser
and in respect of plaint schedule “C” property
as prospective purchaser. She claimed that
when the sale deeds and agreement of sale
were executed in her favour the power of
attorney executed by her mother in law in
favour of her husband was in force and
therefore, her sale deeds are valid. She further
contended that in view of the registered sale
deeds and agreement of sale in her favour, the
subsequent sale deeds in favour of the
defendant executed by her brother in law are
invalid. Thus, it is clear that in the said
proceedings the Court was called upon to
decide not the issue of possession of the
property simpliciter, but it was called upon to
decide the plaintiff’s lawful possession of the
suit properties. Issue No. 1 was, “Whether the
plaintiff is in lawful possession of the suit
properties?”
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13. To legitimize her possession, she traced her
right through the sale deeds and agreement of
sale. Therefore, in those proceedings the trial
Court, the First Appellate Court and the Apex
Court were required to adjudicate on the
merits/legality of the sale deeds and the sale
agreement. In fact the reading of the judgments
show that the Courts considered the question
of title to consider the lawful possession.
14. Section 11, CPC says, “No Court shall try
any suit or issue in which the matter directly
arid substantially in issue has been directly arid
substantially in issue in a former suit between
the same parties…….. has been heard arid
finally decided by such Courts”. The plaintiff
does not dispute the judgments in the earlier
proceedings referred to supra. In those cases,
though she had not filed that suit for
declaration of title and that was a suit for bare
injunction, the Courts decided the legality of
the sale deed/title of plaintiff because the claim
of possession was based on the title.
15. In this context it is necessary and relevant
to refer to paragraph 16 of the judgment in
RFA No. 714/1994.
“16. It is contended by Sri. Raghavachar,
learned advocate for the plaintiff relying
upon certain decisions that it is necessary
for this court to give finding on title of the
plaintiff since the plaintiff seeks the relief
prayed for in the suit basing the same on
her title. On the other hand, learned
counsel appearing for the plaintiff
submitted that a separate suit is pending
filed by the defendant for declaration and
the question of title could be gone into in
that proceedings. I am not inclined to
accept the said submission made on
behalf of the plaintiff. Plaintiff has filed
this suit based on title. It is her definite
case that she is the owner of the property
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and the defendant is interfering with her
possession. On the other hand the
defendant asserts that he is the owner
having purchased the same from the true
owner and since the purchase, he is in
possession and it is the plaintiff, who is
causing obstacles in his possession and
enjoyment.
17. The Hon’ble Supreme Court in
Corporation City of Bangalore v. M.
Papaish, (1989) 3 SCC 612 : AIR 1989
SC 1809, has held that when the
foundation of claim of plaintiff was title,
the court has to consider the question of
tide and see whether the plaintiff has
established her title in order to get an
order of injunction. That was also a case
for perpetual injunction. In Nagarapalike
v. Jagatsingh (1995) 3 SCC 426 : (AIR
1995 SC 1377), the Hon’ble Supreme
Court has observed while considering
similar facts that “there is no substance in
the stand taken by the respondent that
even if he had failed to prove his title, the
suit filed on behalf of the respondents
should be treated as a suit based on
possession and dispossession in terms of
section 6 of the Specific Relief Act. Once
a suit has been filed by the respondent
claiming to be the owner arid being in
possession of the land in question, the suit
cannot be treated as a suit based on
possession and dispossession without
reference to title”. The Hon’ble Supreme
Court held that in such case, the Court is
to record its finding on the question of
title. This court in B.P. Sadashivaiah v.
Parvathamma ILR 1994 Kar 2671 has
held that the court trying a suit for
permanent injunction based on title has to
consider the said question before it
decides to decree or dismiss the suit. In
this case, the plaintiff has filed the suit
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stating that she is the owner of the
property by virtue of the sale deed and
agreement and the defendant is interfering
with her possession and the case of the
defendant is that he is the owner by virtue
of the sale deeds in his favour executed
by the true owner and that he is in
possession. In, view of these, it is
necessary for this court to go into the title
of the parties”
16. The Courts in the above said proceedings held
that the power of attorney executed in favour of the
plaintiff’s husband by her mother-in-law did not
include a clause to empower him/agent to alienate
the properties. Therefore, the Courts held that the
sale deeds and agreement of sale in favour of the
plaintiff are null and void as the vendor had no
competency to sell them. Therefore, in
O.S.5693/1992 plaintiff was very clear on the point
that her, right to possession is decided on the basis
of her title deeds and they are so adjudicated.
Therefore, it is clear that though the suit was not
for declaration of title of the plaintiff on the basis
of the sale deeds and agreement of sale,
legality/merit of those documents was substantially
an issue in the said case. Therefore, the suit is
clearly hit by the principles of res judicata.
17. So far as the contention that the trial Court
ought to have framed an issue and given an
opportunity to the plaintiff to adduce evidence on
that issue of res judicata and trial Court should
have gone through the pleadings in those cases etc.,
it is to be seen that Section 11, CPC creates a total
bar to entertain a suit. The words employed in
Section 11 are that “No court shall try any suit”.
That means once if it comes to the notice of the
Court that the issue in the suit was directly and
substantially in issue in former suit between the
same parties and such issue had been raised, heard
and finally decided, Court cannot proceed with the
matter. When the reading of the admitted
documents viz., Judgments in the former suit,
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Regular First Appeal, Civil Appeal and Review
Petition clearly showed that the issue in the present
suit is already decided finally in the former suit,
there is no question of framing an issue and trying
the same as a preliminary issue. There is a total bar
for trial of such suit.
18. In Hardesh Ores Private Limited referred to
supra invoking Order VII, Rule 11 CPC the plaints
were sought to be rejected on the ground of bar of
limitation. There it was argued that to invoke Order
VII, Rule 11 CPC defendant’s case need not be
considered and the matter must be decided on the
basis of the averments of the plaint alone. In those
cases the plea of limitation was raised in the
written statement. The Trial Court rejected the
plaints and the High Court upheld such rejection.
The Apex Court also upheld the rejection.
Therefore, the said judgment in no way advances
the case of the plaintiff.
19. A reading of para 17 in Vaish Aggarwal
Panchayat’s’case shows that in that matter the
former suit and the later suit were riot between the
same parties and there it was alleged that the
judgment in the former suit was an outcome of
fraud and collusion between the parties to the said.
suit. Therefore, it was held that, the finding on the
issue of res judicata ought to have been given on
recording the evidence. Therefore, the said
judgment is not applicable.
20. Paragraph 42 of the Judgment in Ramachandra
Dagdu Sonavane (Dead) by L.Rs.’s case, shows
that though the, appellants contended that the
question of res judicata ought to have been decided
only on the production of the pleadings and the
judgments in both the suits, the same was not
accepted. It was held that in the judgment of the
earlier suit, the Judge in extenso had referred to the
pleadings of the parties in the earlier suit and the
finding on the question of res judicata is given on
appreciating the copy of the judgment of the earlier
suit. In this case the earlier suit viz., O.S.5693/1992
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was admittedly between the same parties and it was
her own suit. The copies of the Judgment in the
said case right from the suit till the C.A. and
Review Petition are produced before the Court and
based on them the trial Court has rejected the
plaint. Therefore, the judgments relied upon by the
appellant are not applicable to the facts of this case.
21. In Sulochana Amma v. Narayanan Nair (1994)
2 SCC 14 : AIR 1994 SC 152) it was held:
“The decree passed in injunction suit wherein
issue regarding title of the party was directly
and substantially in issue and decided and
attained finality would operate as res judicata in
a subsequent suit based on title, where the same
issue directly and substantially arises between
the parties.”
22. The T. Aravindam v. T.V. Sathyapal ((1977) 4
SCC 467 : AIR 1977 SC 2421) case the Supreme
Court held:
“Where the plaint is manifestly vexatious and
meritless in the sense of not disclosing the right
to sue, the trial court should exercise its powers
u/O. 7, Rule 11, CPC and bogus litigation should
not be permitted to go on”.
23. The plaint averments themselves show that the
defendant claimed title to the property by virtue of
the sale deed executed by her brother-in-law as the
power of attorney holder of her mother-in-law.
Still, she filed O.S.5693/1992 for bare injunction.
She fought that matter for more than two decades
up to the Supreme Court. It was open to her to
claim the relief of declaration of title. But, she
omitted to do that. Therefore, such omission on
her part to include the claim for declaration of title
bars the later suit by operation of Order II, Rules
(2 and 3), CPC. Looked at from any angle, the
impugned order of rejection of plaint does not call
for interference by this Court. Therefore, appeal
dismissed with costs.”
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12.Thus, it is clear that in the present case also when
the civil suit has already been decided and the
judgment and decree of the said case were before the
Court at the time of deciding the application and the
Court was of the opinion that the plaint filed by the
plaintiff/appellant is apparently barred by limitation
and also that a second suit as per Rule 11 of CPC is not
maintainable, the Court without taking any other fact
outside the pleadings of the plaint has decided the
application filed under Order 7 Rule 11 of CPC.
13.From perusal of the record, I am also of the opinion
that the trial Court did nothing wrong while allowing
the application and rejecting the plaint restraining the
plaintiff /appellant to proceed further or to prosecute
any matter for the same issue which has already been
decided long back. Thus, in my opinion, no substantial
question of law is involved in the appeal and it merits
dismissal.
14.Ex consequntia, the appeal is without any
substance, is hereby dismissed.”
13. Although, it is further made clear that the trial court
has rejected the plaint not only on the ground of
question of res judicata but also on the ground that the
plaint suffers from any cause of action. As such, in the
opinion of this court, looking to the existing facts and
circumstances of the case and the observation made by
the trial court, there is nothing wrong committed by the
court in allowing the application filed under Order 7
Rule 11 of CPC.”
25. Thus, it is clear that the plaint filed by the plaintiff/respondent
herein for setting aside the judgment and decree dated 10.12.1999 on the
ground of fraud is merely an exercise so as to take advantage of the
settled legal position that any judgment and decree obtained by fraud,
can be challenged at any stage but this analogy cannot be applied in
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each and every litigation. Even otherwise, it would be the endless
proceeding and there would not be the end of litigation. Even from
perusal of averments made in the plaint and efforts made by the
plaintiff/respondent herein it can be seen that it is a casual attitude of the
respondent/State so as to allege fraud against the applicants whereas in
the plaint itself it does not reflect as to what type of fraud has been
played by them. Neither in the judgment of first Appellate Court before
which judgment and decree dated 10.12.1999 was subject matter nor in
the reply submitted by the respondent/State here in this revision any
fraud has been disclosed so as to challenge the judgment and decree
dated 10.12.1999 which has been affirmed upto the Supreme Court.
26. The Supreme Court in a case reported in 2022 SCC OnLine SC
1962 (Charu Kishor Mehta v. Prakash Patel & Ors.), has considered
this aspect and observed as under:-
“15. A mere recital of fraud, however is not enough. Once
fraud is alleged by a party, like the one that has been done by
the Petitioner in reply to the objection under Order VII, Rule
11 of the Civil Procedure Code, then the allegation of fraud
has to be tested in terms of Order VI, Rule 4 of the Civil
Procedure Code, which reads as under:
“4. Particulars to be given where necessary.
In all cases in which the party pleading relies on any
misrepresentation, fraud, breach of trust, wilful default,
or undue influence, and in all other cases in which
particulars may be necessary beyond such as are
exemplified in the forms aforesaid, particulars (with dates
and items if necessary) shall be stated in the pleading.”
16. Apart from making a bald statement of collusion
between Defendant Nos. 1, 2 & 4 and the secured
creditor, i.e., M/s. Phoenix A.R.C. Pvt. Ltd. there is
nothing substantial as to how and as to what precise
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fraud has been committed. The only case of the
Petitioner for creating a case of fraud is that the
Petitioner’s name was not registered as a member of the
society and the reason for not registering the name of the
Petitioner as a member of the society was that the
society, i.e., Defendant No. 3 was in collusion with the
secured creditor as well as with the Defendant Nos. 1, 2
and 4. The fact of the matter is that even if the name of
the Petitioner would have been registered as a member
of the society, it would have hardly given any benefit to
the Petitioner in the present case. Being registered as a
member of the society would have only meant that the
petitioner is a member of the society. It would not create
ownership rights on a property. Moreover, and most
importantly, not only is this just a bald allegation but the
necessary party against whom fraud was alleged i.e.,
M/s. Phoenix A.R.C. Pvt. Ltd. was never made a party in
the suit proceedings before the Civil Court.
17. At this stage, it was placed on record that the suit
premises have been sold in favour of Defendant No. 4
i.e., Acrynova Industries Pvt. Ltd. The challenge to the
auction and sale, which was made at the hands of none
other than the present petitioner before the Bombay
High Court and as well as this Court has been dismissed
and that as far as the sale auction in favour of the
Defendant No. 4 is concerned, that has attained a
finality. Paragraph No. 4 of the order dated 25.05.2022
of the Trial Court, reads as under:
“4. In the light of above discussion, it is clear that the
suit premises is sold to defendant no. 4 in auction
proceeding conducted on 31/03/2022. Now the
plaintiff is seeking declaration that defendants no. 1
and 2 are not entitled to participate in the auction
proceeding and to restrain them from participating in
the auction proceeding. Similarly, he has prayed to
restrain defendants no. 1, 2 and 4 or their
representatives from making further payments
towards auction sale of the suit premises. In short, the
plaintiff is trying to nullify the effect and operation of
the auction proceedings regarding the suit premises
conducted in the proceeding before DRT through the
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loan amount from the defaulter and the guarantors. In
order to prevent such counter productive things in the
form of indulgence in the functioning of DRT and in
order to achieve the object of the Securitisation and
Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002 (for short, ‘the
SARFAESI Act‘), Section 34 has been incorporated
in the SARFAESI Act. Accordingly, civil courts are
barred from entertaining the proceeding in respect of
any matter which is DRT or the Appellate Tribunal is
empowered to determine. It is specifically provided in
Section 34 of the SARFAESI Act that no injunction
shall be granted by any Court or other authority in
respect of any action taken or to be taken in
pursuance of any power conferred by or under
the SARFAESI Act or under the Recovery of Debts
and Bankruptcy Act, 1993.”
18. The observations of the Bombay High Court on this
aspect are as under:
“33. It is true that the Plaintiff has not challenged the
validity of the auction proceedings or the orders
passed by the authorities under the SARFAESI Act.
The Plaintiff has also not sought any substantive
relief against Defendant No. 4, who is the highest
bidder. However, a plain reading of the averments and
the prayers in the plaint would indicate that the
Plaintiff, under the guise of raising a membership
dispute with the Defendant No. 3 – Society, has in fact
once again attempted to stall the auction proceedings
conducted by the Recovery Officer under the
provisions of SARFAESI Act. Though the Plaintiff
has alleged fraud, the pleadings in this regard are
vague, ambiguous and do not meet the requirement of
Order VI Rule 4 of CPC and/or do not satisfy the test
of fraud. The allegations of fraud and collusion is
nothing but clever and ingenious drafting to get over
the bar of Section 34 of the SARFAESI Act and to
prevent the auction and the auction having been
concluded, to prevent the Defendant No. 4-auction
purchaser from taking possession of the suit premises.
The learned Judge was therefore perfectly justified in
rejecting the plaint under Order VII Rule 11 of CPC.”
19. We are totally in agreement with the above observations
of the two courts and the order passed by the trial court
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allowing the application under Order VII, Rule 11 of
the CPC the Bombay High Court dated 13.06.2022 and
upholding that order and dismissing the appeal of the present
Petitioner. Under the facts and circumstances of the case,
the Bombay High Court was absolutely justified in imposing
the cost of Rs. 5 lakh, on the Petitioner. It is not only the
proceedings before the Civil Court initiated by the Petitioner
in the year 2022 which was on abuse of the law, but the entire
conduct of the petitioner is a clear reflection of the fact that
the petitioner has been doing so repeatedly, after being a
signatory to the settlement as back as 01.10.2013.
20. The Supreme Court in Dalip Singh v. State of Uttar
Pradesh, reported in (2010) 2 SCC 114 has this to say for
methods adopted at the hands of litigants under similar
circumstances. Paragraph nos. 1 and 2 as produced below:
“1. For many centuries, Indian society cherished two
basic values of life i.e., ‘Satya’ (truth) and ‘Ahimsa’ (non-
violence). Mahavir, Gautam Buddha and Mahatma
Gandhi guided the people to ingrain these values in their
daily life. Truth constituted an integral part of justice
delivery system which was in vogue in pre-independence
era and the people used to feel proud to tell truth in the
courts irrespective of the consequences. However, post-
independence period has seen drastic changes in our
value system. The materialism has over-shadowed the old
ethos and the quest for personal gain has become so
intense that those involved in litigation do not hesitate to
take shelter of falsehood, misrepresentation and
suppression of facts in the court proceedings.
2. In the last 40 years, a new creed of litigants has
cropped up. Those who belong to this creed do not have
any respect for truth. They shamelessly resort to
falsehood and unethical means for achieving their goals.
In order to meet the challenge posed by this new creed of
litigants, the courts have, from time to time, evolved new
rules and it is now well established that a litigant, who
attempts to pollute the stream of justice or who touches
the pure fountain of justice with tainted hands, is not
entitled to any relief, interim or final.”
21. We may record here that we were initially persuaded in
this case, to initiate contempt proceedings against the
Petitioner, considering that there has been a deliberate attempt
on her part in the non-disclosure of absolutely relevant facts
before this Court. We are not doing so purely due to the age of
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the Petitioner as she is a lady of 78 years of age. The present
petition is no doubt an abuse of the process of law and has
caused harm to the other parties to the litigation, some of
whom may have been needlessly drawn into the litigation. We
may refer here an observation given in the case of Subrata
Roy Sahara v. Union of India, (2014) 8 SCC 470:
“191. The Indian judicial system is grossly afflicted, with
frivolous litigation. Ways and means need to be evolved,
to deter litigants from their compulsive obsession,
towards senseless and ill-considered claims. One needs to
keep in mind, that in the process of litigation, there is an
innocent sufferer on the other side, of every irresponsible
and senseless claim. He suffers long drawn anxious
periods of nervousness and restlessness, whilst the
litigation is pending, without any fault on his part.””
27. Considering the aforesaid enunciation of law, this Court has no
hesitation to say that the application filed by the applicants/defendants
before the trial Court under Section 11 of CPC pointing out that the suit
was not maintainable and plaint deserves to be dismissed on the ground
that the same was hit by the principles of res judicata and that could
have been considered by the Court on the basis of averments made in
the plaint itself and that ought to have been decided by the Court but
without examining the said aspect of the matter, the Court in a very
casual manner, relying upon general perception that the plea of res
judicata is decided after recording the statement of the parties and
conducting trial, but this analogy in the facts and circumstances of the
present case is not applicable and as such, in my opinion, the application
filed by the applicants/defendants deserves to be allowed and it is
accordingly allowed. The suit filed by the plaintiff/respondent herein i.e.
RCSA-147/2023 pending before the First Civil Judge, Junior Division to
the Court of Third Additional Judge, Satna is dismissed as the same is
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hit by the principles of res judicata.
28. The order dated 15.07.2024 (Annexure-P/11) which is impugned
in this revision is set aside.
29. With the aforesaid observations, this civil revision is allowed and
disposed of. No order as to costs.
(SANJAY DWIVEDI)
JUDGE
ac/-
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