Calcutta High Court: In a petition preferred by the petitioners, defendants in a partition suit, challenging the order dated 20-09-2022 by the Civil Judge (Senior Division), Bongaon, thereby rejecting an application under Order 7 Rule 11 of the Civil Procedure Code, 1908 (CPC) seeking the dismissal of second partition suit on grounds of res-judicata, a single-judge bench comprising of Biswaroop Chowdhury,* J., found no error in the rejection of the application under Order 7 Rule 11 CPC as the same did not demonstrate grounds for rejection. The Court emphasised that the issue of res judicata involves questions of law and fact, best decided upon trial with evidence. The Court affirmed the order dated 20-09-2022, allowing all points to be decided at the trial.
Factual Matrix
In the instant matter, the respondents-Opposite Party 1 and 2 initiated a partition suit against the petitioners. On 01-12-2015, the court dismissed the partition suit for default. The respondents allegedly suppressing the dismissal, filed second partition suit on the same subject matter and the content of second partition suit closely mirrors first partition suit, with minor changes. The petitioners, in response to the second partition suit, filed an application under Order 7 Rule 11 of the CPC seeking dismissal. The Civil Judge (Senior Division), Bongaon, rejected the application vide order dated 20-09-2022. Aggrieved by the impugned order by the Civil Judge (Senior Division), Bongaon, the petitioner, challenged the same before the Court.
Petitioners’ Contentions
The petitioners argued that opposite party 1 and 2 previously filed a suit for the same cause of action, which was dismissed. It was contended that the principles of res judicata should apply, making the present suit legally barred.
Court’s Analysis
The Court examined the petition under this rule, which mandates the rejection of a plaint in specific circumstances. The Court observed that the petitioners fail to demonstrate any grounds for rejection as outlined in the rule. While referring to Bhau Ram v. Janak Singh, (2012) 8 SCC 701, the Court observed that while considering Order 7 Rule 11 CPC, the focus is on the averments in the plaint rather than the defenses in the written statement.
The Court delved into Section 11 CPC, emphasising that res judicata applies to issues or entire suits and there must be a definite finding on the merits in the previous suit. The Court noted that the plea of res judicata cannot be sustained without a conscious adjudication on the merits. The Court emphasised that the issue of res judicata involves questions of law and fact, best decided upon trial with evidence.
Court’s Decision
The Court found no merit in the petitioners’ argument for rejection under Order 7 Rule 11 CPC. On the issue of res judicata, the Court emphasised the need for a conscious adjudication on the merits, which is lacking in the present case.
The Court affirmed the order dated 20-09-2022 passed by the Civil Judge (Senior Division), Bongaon, rejecting the petitioners’ application under Order 7 Rule 11 CPC. The Court clarified that the Court has not delved into the merits of the suit, leaving all points open for determination during the trial and the order does not impede the parties from making necessary applications in accordance with the law.
[Choleman Mandal v. Jalal Biswas, 2023 SCC OnLine Cal 5615, order dated 22-12-2023]
*Judgment by Justice Biswaroop Chowdhury
Advocates who appeared in this case :
Mr. Sandip Das, Counsel for the Petitioner
