Patna High Court
Shiv Shankar raut @ Shankar RautversusChandrakala Devi
- Decided
- Disposal
- DISMISSED
- Bench
- RAMESH CHAND MALVIYA
Holding
Res judicata cannot be decided under Order VII Rule 11(d); the trial court’s order rejecting the application stands.
Summary
Petitioners Shiv Shankar Raut and Hari Raut filed a civil revision seeking to set aside the Munsif Court’s order rejecting their application under Order VII Rule 11(d) of the CPC, alleging that the plaint was barred by res judicata, was vexatious and time‑barred. The High Court noted that the respondents did not appear and examined the scope of Order VII Rule 11(d). It held that the power to reject a plaint under this provision is limited to the averments in the plaint and the documents filed with it, and that a plea of res judicata is a mixed question of law and fact that must be decided after a full trial. Consequently, the trial court’s dismissal of the application was proper and could not be interfered with at the revision stage. The revision petition was dismissed as being devoid of merit.
Issues considered
- Whether a plaint can be rejected under Order VII Rule 11(d) of the CPC on the ground of res judicata.
- Whether the limitation bar can be invoked at the stage of an application for rejection of plaint.
- Whether the trial court’s order rejecting the application is amenable to interference by a civil revision.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order VII Rule 11(d)
Subjects
- res judicata
- Order VII Rule 11
- civil revision
- plaint rejection
- limitation
- partition suit
- vexatious litigation
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.41 of 2023
======================================================
1. Shiv Shankar Raut @ Shankar Raut, Male, aged about 54 years, Son of Late
Ram Das Raut. Resident of Village-Dhangar (Madanpur Bishwanath), P.S.-
Parsauni, District-Sitamarhi, Presently Mohalla-Bajrangpuri, P.O.-
Guljarbagh, P.S. Alamganj, District-Patna.
2. Hari Raut @ Hari Shankar Prasad, Male, aged about 52 years, Son of Late
Ram Das Raut, Resident of Village-Dhangar (Madanpur Bishwanath), P.S.-
Parsauni, District-Sitamarhi, Presently Mohalla-Bajrangpuri, P.O.-
Guljarbagh, P.S. Alamganj, District-Patna.
... ... Petitioner/s
Versus
1. Chandrakala Devi, Wife of Bittan Raut, Resident of Village-Dhangar
(Madanpur Bishwanath), P.S.-Parsauni, District-Sitamarhi.
2. Baiju Raut, Son of Late Bittan Raut, Resident to Village-Dhangar
(Madanpur Bishwanath), P.S.-Parsauni, District-Sitamarhi.
3. Amar Raut, Son of Late Bittan Raut, Resident of Village-Dhangar
(Madanpur Bishwanath), P.S.-Parsauni, District-Sitamarhi.
4. Santosh Raut, Son of Late Bittan Raut, Resident of Village-Dhangar
(Madanpur Bishwanath), P.S.-Parsauni, District-Sitamarhi.
5. Mala Devi Wife of Sri Shatrudhan Raut, Resident of Village-Dhangar
(Madanpur Bishwanath), P.S. Parsauni, District-Sitamarhi.
... … Respondent/s Opposite Parties
======================================================
Appearance :
For the Petitioner/s : Mr. Bishwa Nath Chaudhary, Advocate
For the Respondent/s : None
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
CAV ORDER
15 29-01-2026 The present Civil Revision application is being filed
for setting aside the order dated 04.11.2022 passed in Title Suit
no. 07 of 2021 by the learned Court of Munsif, Belsand,
Sitamarhi whereby and where under the petition dated
27.06.2022 filed under Order VII Rule 11(d) of the Code of
Civil Procedure (hereinafter referred to as ‘CPC’) was rejected.
2. Heard the learned counsel for the petitioners and
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nobody appears on behalf of the learned counsel for the
respondents to press this application.
3. Learned counsel on the behalf of petitioners
submitted that the learned trial Court committed illegality in
refusing the application for rejection of plaint under Order VII
Rule 11 of CPC, the impugned order is illegal, improper and
against the mandatory provisions of law and is liable to set
aside. The learned trial Court failed to appreciate that the plaint
is barred by principle of res judicata and the plaintiff case is
vexatious, merit less and completely based on irrelevant
statements and frivolous facts, thus the plaint ought to have
been rejected under Order VII Rule 11 of the CPC.
3.i. Learned counsel further submits that the land in
question was of one Harihar Prasad Singh and Bittan Raut the
husband of Respondent no. 1 was engaged in the house of
Harihar Prasad Singh and Harihar Pd. Singh given his landed
property of schedule No. 1 to Bittan Raut and since 1968, Bittan
Raut and further the opposite parties have been living in the
Kuchha house and further averred that the petitioners have no
concerned in any way from the Schedule No. 1 property.
3.ii. He further submits that earlier bittan raut, the
husband of opposite party no. 1 had filed a partition suit no. 449
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of 2013 before the learned court of sub judge-iv th sitamarhi for
partition of the property mentioned in Schedule No. 2 between
the plaintiffs and defendants which would be apparent from the
Title Suit No. 449 of 2013. He further submits that from bare
perusal of paragraph nos. 4 and 5 of the plaint as contained in
Annexure-3 to the petition, it appears that the property of
Schedule-2 has been jointly purchased by Bittan Raut and Ram
Das Raut so it may be partitioned equally.
3.iii. He relied upon the judgment rendered by the
Hon’ble Supreme Court in M/s Faime Makers Pvt. v. District
Deputy Registrar, Co-Operative Societies reported in 2025
INSC 423 relevant para-11 and 13:
“11. It has been settled by this Court that
the principle of res judicata applies to and
binds quasi-judicial authorities. This Court
in Ujjam Bai v. State of U.P. 1962 SCC
OnLine SC 8 has taken the view that
principles of res judicata equally apply to
quasi-judicial bodies. Whenever a judicial
or quasi-judicial tribunal gives a finding on
law or fact, its findings cannot be
impeached collaterally or in a second
round and are binding until reversed in
appeal or revision or by way of writ
proceedings. The characteristic attribute of
a judicial act or decision is that it binds,
whether right or wrong. Thus, any error,
either of fact or law, committed by such
bodies cannot be controverted otherwise by
way of an appeal or revision or a writ
Patna High Court C.R. No.41 of 2023(15) dt.29-01-2026
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unless the erroneous determination relates
to the jurisdictional matter of that body.
12…....
13. From the foregoing discussion, it is
evident that once a Competent Authority
(quasi-judicial in nature) settles an issue,
that determination attains finality unless it
is set aside in accordance with law.”
3.iv. He further relied upon the judgment
rendered by the Hon’ble Supreme Court in M/s Sree Surya
Developers & Promoters v. N. Sailesh Prasad & others
reported in (2022) 5 SCC 736, relevant para-10.1:
“10.1. As held by this Court in a catena of
decisions right from 1977 that a mere
clever drafting would not permit the
plaintiff to make the suit maintainable
which otherwise would not be maintainable
and/or barred by law. It has been
consistently held by this Court that if clever
drafting of the plaint has created the
illusion of a cause of action, the court will
nip it in the bud at the earliest so that bogus
litigation will end at the earlier stage.”
3.v. He further relied upon the judgment
rendered by the Hon’ble Supreme Court in Smt. Uma Devi &
others v. Sri Anand Kumar and others reported in (2025) 5
SCC 198, relevant para-13, 17 & 18:
“13. A registered document provides a
complete account of a transaction to any
party interested in the property. This Court
in Suraj Lamp & Industries (P) Ltd. (2) v.
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State of Haryana held as under: (SCC pp.
664-65, para 15)
"15.... 17. ... Registration of a
document (when it is required by law
to be, and has been affected by a
registered instrument]" gives notice to
the world that such a document has
been executed.
18. Registration provides safety and
security to transactions relating to
immovable property, even if the
document is lost or destroyed. It gives
publicity and public exposure to
documents thereby preventing
forgeries and frauds in regard to
transactions and execution of
documents. Registration provides
information to people who may deal
with a property. as to the nature and
extent of the rights which persons may
have, affecting that property. In other
words, it enables people to find out
whether any particular property with
which they are concerned, has been
subjected to any legal obligation or
liability and who is of are the
person(s) presently having right, title,
and Interest in the property. It gives
solemnity of form and perpetuates
documents which are of legal
importance or relevance by recording
them, where people may see the record
and enquire and ascertain what the
particulars are and gas far as land is
concerned what obligations exist with
regard to them. It ensures that every
person dealing with immovable
property can rely with confidence upon
the statements contained in the
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registers (maintained under the said
Act) as a full and complete account of
all transactions by which the title to
the property may be affected and
secure extracts/copies duly certified.”
17. In Dahiben v. Arvindbhai Kalyanji
Bhanusali, (SCC p. 377, para 23) it is
stated as under:
“23... 23.3. The underlying object of
Order 7 Rule 11(a) is that if in a suit,
no cause of action is disclosed, or the
suit is barred by limitation under Rule
11(d), the Court would not permit the
plaintiff to unnecessarily protract the
proceedings in the suit. In such a case,
it would be necessary to put an end to
the sham litigation, so that further
judicial time is not wasted."
18. In our considered opinion, the trial
court had rightly allowed the application of
the appellant-defendants under Order 7
Rule 11 CPC, holding that the suit filed by
the plaintiffs was a meaningless litigation,
that it did not disclose a proper cause of
action and was barred by limitation. There
were thus no justifiable reasons for the
appellate court to have remanded the
matter to the trial court”
3.vi. He lastly submits that the prayer of partition
of suit property is basically challenging the previous decree. A
mere clever drafting would not permit the plaintiff to make the
suit maintainable which otherwise is not maintainable.
Therefore, the same issue cannot be raised and decided in the
present suit and the continuance of the present suit would
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amount to an abuse of the process of the Court. Accordingly, the
impugned order under revision is otherwise bad, illegal and is fit
to be set aside.
4. Learned counsel for the respondents are not
appearing since last several dates to press this application,
despite giving enough opportunity for his arguments.
5. The scope of Order VII Rule 11 of the CPC
explained in various decisions and the legal principles
deducible. The material to be considered for rejecting the plaint
has been dealt with in the case of Dahiben v. Arvind Bhai
Kalyanji Bhanusali reported in (2020) SCCONLINE 563. The
Hon’ble Apex court has settled the principle and made the
following observations:
“12.6-At this stage, the pleas taken by the
defendant in the written statement and
application for rejection of the plaint on the
merits, would be irrelevant, and cannot be
adverted to, or taken into consideration.
“12.7-The test for exercising the power
under Order VII Rule 11 is that if the
averments made in the plaint are taken
entirety, in conjunction with the documents
relied upon, would the same result in a
decree being passed”.
“23.2. The remedy under Order7 Rule11 is
an independent and special remedy,
wherein the Court is empowered to
summarily dismiss a suit at the threshold,
without proceeding to record evidence, and
conducting a trial, on the basis of the
evidence adduced, if it is satisfied that the
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action should be terminated on any of the
grounds contained in this provision.
23.5. The power conferred on the court to
terminate a civil action is, however, a
drastic one, and the conditions enumerated
in Order 7 Rule 11 are required to be
strictly adhered to.
23.9. In exercise of power under this
provision, the Court would determine if the
assertions made in the plaint are contrary
to statutory law, or judicial dicta, for
deciding whether a case for rejecting the
plaint at the threshold is made out.
23.10. At this stage, the pleas taken by the
defendant in the written statement and
application for rejection of the plaint
[Sopan Sukhdeo Sable Vs. Charity Commr.
(2004) 3 SCC 137] on the merits, would be
irrelevant, and cannot be adverted to, or
taken into consideration.
23.12. In Hardesh Ores (P.) Ltd. v. Hede &
Co. (2007) 5 SCC 614 the Court further
held that it is not permissible to cull out a
sentence or a passage, and to read it in
isolation. It is the substance, and not merely
the form, which has to be looked into. The
plaint has to be construed as it stands,
without addition or subtraction of words. If
the allegations in the plaint prima facie
show a cause of action, the court cannot
embark upon an enquiry whether the
allegations are true in fact. D.
Ramachandran v. R.V. Janakiraman
[D.Ramachandran v. R.V. Janakiraman,
(1999)3 SCC 267; See also Vijay Pratap
Singh Vs. Dukh Haran Nath Singh, AIR
1962 SC 941].
23.13. If on a meaningful reading of the
plaint, it is found that the suit is manifestly
vexatious and without any merit, and does
not disclose a right to sue, the court would
be justified in exercising the power under
Order VII Rule 11 CPC.
23.15. The provision of Order VII Rule 11is
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mandatory in nature. It states that the plaint
“shall” be rejected if any of the grounds
specified in clause (a) to (e) are made out.
If the Court finds that the plaint does not
disclose a cause of action, or that the suit is
barred by any law, the Court has no option,
but to reject the plaint.”
6. On meticulously examination of the aforesaid
facts and circumstance, I am of the view that the learned Trial
Court has rightly dismissed the petition under Order VII Rule 11
(d) of CPC and any interference of this Hon'ble Court would
cause loss and injury to the answering opposite party. Moreover,
a plaint cannot be rejected at the initial stage based on res
judicata. This is because rejection of plaint under Order VII
Rule 11 of the CPC requires the Court to look only at the
averments in the plaint and documents attached to it. Res
judicata is mixed question of law and facts that requires a full
trial for proper adjudication after evidence has been presented.
Res judicata is a complex issue that requires examining
evidence from a previous suit (e.g., the prior judgment and the
nature of the hearing). Adjudicating on the point of res judicata
at the outset would be a premature determination of a mixed
question of law and fact, which is only suitable for a trial after
examination of evidence.
7. So, the Court will not reject the plaint based
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on a claim of res judicata at the initial stage. The issue will be
addressed during the trial, after all parties have had an
opportunity to present their case and evidence. The Hon’ble
Apex Court in Srihari Hanumandas Totala v. Hemant Vithal
Kamat & Ors reported in (2021) 9 SCC 99 held that the
adjudication of the plea of res judicata is beyond the scope of
Order VII, Rule 11 CPC, relevant para is as follow: -
“25.4. Since an adjudication of the plea of
res judicata requires consideration of the
pleadings, issues, and decision in the
“previous suit”, such a plea will be beyond
the scope of Order 7 Rule 11(d), where only
the statements in the plaint will have to be
perused.”
8. The issue of res judicata cannot be decided
merely on assertions made in the application seeking rejection
of plaint. As held by Hon’ble Apex Court in V. Rajeshwari v.
T.C. Saravanabava reported in (2004) 1 SCC 551. In Keshav
Sood v. Kirti Pradeep Sood Civil Appeal No. 5841 of 2023, the
Hon'ble Apex Court took a strong view against the plea of res
judicata being raised in applications seeking rejection of plaint
and held as follows:
“5. As far as scope of Rule 11 of Order VII
of CPC is concerned, the law is well settled.
The Court can look into only the averments
made in the plaint and at the highest,
documents produced along with the plaint.
The defence of a defendant and documents
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relied upon by him cannot be looked into
while deciding such application.”
“6. Hence, in our view, the issue of res
judicata could not have been decided on an
application under Rule 11 of Order VII of
CPC. The reason is that the adjudication on
the issue involves consideration of the
pleadings in the earlier suit, the judgment
of the Trial Court and the judgment of the
Appellate Courts. Therefore, we make it
clear that neither the learned Single Judge
nor the Division Bench at this stage could
have decided the plea of res judicata raised
by the appellant on merits.”
9. Moreover, issue raised by the petitioners about
res judicata and limitation cannot be decided at this preliminary
stage since they constitute mixed question of law and facts and
need detailed hearing. In any case, issue of limitation in
partition suit is hardly material and no question could arise on
this aspect of the matter. In view of the aforesaid facts,
circumstances and the law discussed above, this Court does not
find any valid ground for interference in the impugned order of
the learned Trial Court. This Civil Revision is devoid of merit
and is liable to be dismissed.
10. Accordingly, the present Civil Revision stands
dismissed.
(Ramesh Chand Malviya, J)
Anand Kr
U
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