Heard and Seen. This is a suit for partition. Perused the plaint, written statement, the respective petition, and the materials available on record. Upon such perusal, it appears to the court that the defendants have come up with a petition dated 25/01/2022 with the prayer that the suit is liable to be rejected under Order 7, Rule 11, and section 151of the 1908 Code of Civil Procedure.
The substance of the
petition:
The fact that appears in the defendants’ petition is that there was
an earlier partition suit (17/2000, OC) that was dismissed on contest by the
trial court on 20/06/2007. The plaintiffs instituted another suit (the very
suit No. 03/2020, OC) with regard to the same property. The defendant
petitioners claim that since the parties, the schedules, and the nature of both
suits are the same and identical, the latter suit should be rejected on the
ground that the plaintiffs lack locus standi to institute the instant suit, as
well as the suit, is barred by the principle of Res Judicata under the
aforesaid provision. The plaintiffs merely participated in the hearing
upon the petition but placed no written objection thereto.
Point for determination:
Whether the plaint should be rejected under Order 7, Rule 11, and
section 151 of the 1908 Code of Civil Procedure.
Discussion and Decisions:
The Defendant can file an application in the form of
interlocutory application at any stage of proceedings. It is important to note
that, when the suit filed appears from the statement in the plaint as barred by
any statute and gives no such right to the plaintiff for instituting the suit,
it shall be liable to be rejected. The rejection of plaint occurs only under
Order VII Rule 11 of the Code. A plaint can be rejected on the grounds which
have been mentioned under the said Order. On perusal of the petition in the
discussion, it appears that the defendant invoked the court's jurisdiction to
reject the plaint on the ground that the suit is barred by law, particularly
under the provision of Order VII Rule 11(d)), along with section 151 of the
Code.
05. Yet, it is a well-known legal position that in order to come to a decision as to whether a plaint is liable to be rejected under Order 7, Rule 11 of the 1908 Code of Civil Procedure, the court generally will look into the statements made in “the plaint itself” and “will not consider the statement made by a defendant” in the application filed by him for rejection of the plaint. But, in our case, the defendant has opted to elect the option of the bar of trial under the principle of res judicata. Moreover, the defendants invoked the court's jurisdiction under section 151 of the Code and put much emphasis on this public policy instrument.
06. Since the principle of res
judicata under section 11 of the Code are the mixed questions of law and fact, such a question may
be decided at any stage of the suit and the whole materials available on record
can be taken into consideration by the court, although some other grounds may
attract aforesaid legal position. Accordingly, considering the materials on
record, the court tends to take into account the long and substance of the
petition, plaint, and submitted materials. As a result, it is the court’s
opinion that the petition is amenable to be considered and the whole materials
on record could be taken into consideration on the grounds which have been
mentioned under the said Order of the Code. Thus, a question fairly arises
whether the suit is barred by the principle of res judicata.
07. This principle basically prohibits adjudication of the same
issue between the same parties more than once. Upon such perusal of the plaint,
written statement, the instant petition as well as the copy of the judgment and
decree passed in the other class suit No. 17/2000, it clearly appears to the court
that the earlier suit was the other class suit No. 17/2000, and the instant
suit No. 03/2020. Both suits are partition suits. The defendant No. 02
of the other class suit No. 17/2000 was one “Den Mohammad". Here, Den
Mohammad, the father of the plaintiffs, is the transferor and the plaintiffs
are the transferee of the gift deed. Such a transfer was done through a gift
deed that was executed and registered in 2019. But, Den Mohammad instituted the
former suit (partition) that got dismissed on contest. Since the judgment and
decree of the OC suit No. 17/2000 are also binding upon the plaintiffs, the
plaintiffs of the OC suit No. 17/2000 are the plaintiffs of the instant suit
(03/2020) in disguise. But the good thing is that the facts are unveiled as
such.
08. Even, the body of the judgment at pages No. 3-4 substantiates
that the earlier court has finally decided an issue regarding the RS khatian
No. 1422 and 930 and held that the court does not find that the plaintiffs
(including Den Mohammad) have title to the suit land. The RS khatian Nos. 1422
and 930 are also the schedule of the instant suit. Hence, it appears that the
subject-matter and parties to both suits are lucidly identical, as well as the
issue of whether the plaintiffs are entitled to the suit lands has also finally
been decided by a competent court. Res
judicata includes two concepts of claim preclusion and issue preclusion. In
issue preclusion, it prohibits the relitigation of issues of law that have
already been determined by the judge as part of an earlier case. No person
should be disputed twice for the same reason
09. Interestingly,
the instant suit also states that the plaintiffs pray for a relief that the
judgment and decree of the former suit shall be declared as not binding upon
them. The court finds that plaintiffs have set out such a new prayer, which
attracts the principle of constructive res judicata. The interesting
fact is that Den Mohammad was one of the “plaintiffs” (not a defendant) of
the former suit, and the suit was dismissed on contest in 2007. But, he
regrettably again transferred his lands (subject-matter of the former suit that
finds no entitlement to the suit lands) to the plaintiffs of the instant suit
in 2019. In fact, such a situation suggests that Den Mohammad took a hoax and played active concealment while the plaintiffs
of the instant suit were executing their deed of 2019.
10. Even, the plaintiff side has not
claimed that the earlier suit had not been finally decided and decided. A cause of action may not be relitigated once it has been judged on the merits. And also, "finality" is the
term that refers to when a court renders a final judgment on the merits. Earlier decision right or wrong is not relevant. Besides, there is no proof or any claim that
the former suit is now subjudice.
Thus, there arises no doubt that the earlier suit was 'finally heard and
decided'. It is like a day where a decree on the merits gets its finality, it becomes
res judicata. Therefore, the court holds that the earlier suit gets the
force of finality for the latter one. If only the materials on record is
carefully considered and scrutinized throughout, it cogently would transpire
that the apparent face of the plaint explicitly discloses a fact, which has
already been decided on merit in another suit by the competent court, which
conspicuously falls within the mischievous grounds for the rejection of the
plaint. It is pertinent to mention that in such a situation, the instant suit
is liable to suffer the mandate of the principle res judicata: a rule of conclusiveness of judgment. There should be an end to litigation.
11. Apart from the aforesaid
decisive position, another legal perspective under section 151 of the CPC
should also be taken into account. When Order 7 of the Code is not sufficient
in the opinion of the judge and rejection of plaint is necessary for the end of
justice, the court may invoke its inherent power under section 151 of the CPC.
Besides, if the
continuation of the suit is found to be an abuse of the process of the court,
if the suit is foredoomed or if the ultimate result of the suit is as clear as
the daylight, there is no other option but the suit should be buried at its
inception. Consequently, since the instant case does not involve the
determination of facts and the law necessitating investigation on such plea of res judicata, this plaint should be
rejected as it is clear and palpable from the meaningful reading of the plaint
that no further evidence is required.
12. Above and beyond, when it is also apparent from the materials on
the record itself that the suit is barred by res judicata and no evidence will be required to decide the
question of whether the suit is barred as such, the suit should stop
immediately. Although the plea of the implied bar should ordinarily be decided
on the evidence, the explicit bar does not require it. And thus, if the instant
suit is not buried at its’ inception, injustice to the parties to the suits and
unnecessary waste of court resources would be the obvious result that may breed
the multiplicity of suits. The court is of opinion that the instant suit is
barred by the provision of section 11 of the 1908 Code of Civil
Procedure, and thus, the plaint should be rejected under Order VII Rule 11(d)) of the Code of Civil Procedure. The court
also finds that applying the principle of
res judicata in such a particular case seeks to promote the fair administration
of justice and honesty and to prevent the law from being abused. Because, this
principle is founded upon the principles of justice, equity, and good
conscience that serve the purpose of public policy and the purpose of this is
to inculcate finality into litigation.
Hence, it is ORDERED
that the petition dated 25/01/22 is allowed with costs. The plaint is hereby
rejected under Order VII Rule 11(d)) of
the Code of Civil Procedure.