# Deen Dayal Pipraiya & Ors v. Ram Sharan

- **Citation:** (2025) 9 ILRA 939
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-19
- **Case number:** First Appeal No. 678 of 2018
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deen-dayal-pipraiya-ors-v-ram-sharan-54765
- **Pages:** 9

## Headnote

VII R. 11(d) of Code of Civil Procedure on the
ground that it was barred by res judicata u/s 11
C.P.C., without examining the pleadings and
evidence of the parties, and merely on the basis
of the defendant's application and documents.

Headnotes
Code of Civil Procedure, 1908 - s. 11, O. 7.
R. 11 (d) - U.P. Zamindari Abolition and
Land Reforms Act, 1950 - s. 331 - Specific
Relief Act, 1963 - ss. 34, 38, 41 - Plaintiff -
appellant acting as Manager of Sri Thakur
Maithli Raman Jee Maharaj, Virajman
Mandir Kunj, a private temple, instituted
Original
Suit
seeking
a
decree
of
permanent
injunction
restraining
defendant, Ram Sharan, from selling,
transferring,
or
interfering
with
the
temple property - It was pleaded that
940 INDIAN LAW REPORTS ALLAHABAD SERIES
temple property, originally owned by Smt.
Janki Bai by virtue of registered gift deed
dated 13.09.1938, was to be managed
under her authority, and upon her removal
of
defendant
from
management
for
mismanagement, plaintiff was appointed
as Manager - After her death, defendant
allegedly attempted to unlawfully occupy
and alienate temple property - Defendant,
while admitting the gift deed and temple's
existence, denied plaintiff's managerial
rights, asserting that he himself had been
managing temple since Janki Bai's demise
and
the
issue
had
already
been
adjudicated
in
earlier
proceedings
culminating in Civil Appeal No. 45 of 1996,
affirmed up to Supreme Court - Relying on
plea of res judicata, trial court dismissed
suit under O. VII R. 11(d) C.P.C., holding it
barred u/s 11 C.P.C., giving rise to instant
first appeal.
Held: In the instant case, it is evident that trial
court while deciding defendant's application
under O. 7 R. 11 CPC has considered his written
statement, additional written statement and
several documents submitted by him, which is
contrary to law laid down by Apex Court -
Trial court erred in considering written
statement and
documents
submitted
by
defendant while disposing application under
O. 7 R. 11 CPC - It is also apparent that plea
of res judicata can only be examined after
detailed examination of pleadings of parties in
earlier suit and after perusing all relevant
documents
filed
by
parties,
which
is
impossible at stage of deciding defendant's
application under O. 7 R. 11 CPC - Thus, trial
court
committed
illegality
in
dismissing
plaintiff's suit under O. 7 R. 11 (d) CPC on
ground of being barred by res judicata, as
such, impugned judgment and decree passed
by trial court is unsustainable in eye of law
and liable to be set aside. [Paras 20, 21] (E13)

Case Law Cited
Prem Kishore & others v. Brahm Prakash &
others, (2023) 19 SCC 244; Pandurangan v. T.
Jayarama Chettiar & another, (2025) SCC
Online SC 1425 - relied on
Keshav Sood v. Kirti Pradeep Sood and others,
2023 SCC OnLine SC 2459 - referred to.

List of Acts
Code of Civil Procedure, 1908; U.P. Zamindari
Abolition and Land Reforms Act, 1950; Specific
Relief Act, 1963.

List of Keywords
Appeal u/s 96 C.P.C.; Permanent injunction;
Application under O. 7 R. 11(d) C.P.C.; Barred
by res judicata u/s 11 C.P.C.; Irregularities in
accounting; Malafide intention; Illegally occupy
the property of temple; Selling, transferring
property of temple; Registered gift deed;
Manager of temple; Cause of action; Written
statement; Revenue records; Suit barred by
Section 331 of U.P.Z.A.L.R.Act, 1950; Barred by
Section 34, 38, 41 of Specific Relief Act;
Detailed examination of pleadings of parties in
earlier suit; Remitted back to trial court;
Framing of preliminary issue; Opportunity to
lead oral and documentary evidence.

Case Arising From
APPELLATE JURISDICTION: First Appeal No. -
678 of 2018
From
the
judgment
and
decree
dated
10.11.2017 passed by the Court of Sri Radhey
Mohan Srivastava, Civil Judge (Senior Division),
Jhansi

Appearances for Parties
Advs. for the Appellant:
Sanjay Agrawal

Advs. for the Respondent:
Krishna Dutt Tiwari

## Text

9 All. Deen Dayal Pipraiya & Ors. Vs. Ram Sharan
939
35. In view of the above facts, it is
apparent that plaintiff was having a share in
the disputed property regarding which her
brother had fraudulently executed a gift
deed in his favour regarding which the
plaintiff had sought relief of declaration for
declaring the alleged gift deed to be a null
and void document and for restraining the
defendant by a decree of permanent
injunction from alienating her 1/7th share
in the disputed property and for restraining
him from interfering in the peaceful
possession of the disputed property, which
cannot be said to be barred by any law.

36. Certainly, the trial court erred
in concluding that the plaintiffs suit was
barred by the provisions of Section 6 of the
Hindu Succession Act, as amended in the
year 2005

37. In view of the above, the
impugned judgment of the trial court is
wholly perverse, which needs to be set
aside by this Court.

38. Accordingly, the instant appeal
is allowed and the impugned judgment and
decree dated 29.11.2016 passed by the
Court of Ist Additional Civil Judge (Senior
Division), Hapur in O.S. No.155 of 2016,
Km. Deepika Rani vs. Vinay Bansal, is set
aside and the original suit is restored to its
original number.

39. The trial court is directed to
decide the suit as expeditiously as possible,
in accordance with law.

40.
Parties
shall
bear
their
respective costs. Office is directed to
prepare the decree accordingly.

41. Interim order, if any, stands
vacated.
42. All the pending applications, if
any, stand disposed of.

43. Office is directed to send back
the original trial court record, if received,
forthwith.
----------
(2025) 9 ILRA 939
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.09.2025

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 678 of 2018

Deen Dayal Pipraiya & Ors. ...Appellants
Versus
Ram Sharan ...Respondents

Counsel for the Appellants:
Sanjay Agarwal

Counsel for the Respondent:
Krishna Dutt Tiwari

Issue for Consideration
Matter pertains to whether the trial court was
justified in dismissing the plaintiff's suit under O.
VII R. 11(d) of Code of Civil Procedure on the
ground that it was barred by res judicata u/s 11
C.P.C., without examining the pleadings and
evidence of the parties, and merely on the basis
of the defendant's application and documents.

Headnotes
Code of Civil Procedure, 1908 - s. 11, O. 7.
R. 11 (d) - U.P. Zamindari Abolition and
Land Reforms Act, 1950 - s. 331 - Specific
Relief Act, 1963 - ss. 34, 38, 41 - Plaintiff -
appellant acting as Manager of Sri Thakur
Maithli Raman Jee Maharaj, Virajman
Mandir Kunj, a private temple, instituted
Original
Suit
seeking
a
decree
of
permanent
injunction
restraining
defendant, Ram Sharan, from selling,
transferring,
or
interfering
with
the
temple property - It was pleaded that
940 INDIAN LAW REPORTS ALLAHABAD SERIES
temple property, originally owned by Smt.
Janki Bai by virtue of registered gift deed
dated 13.09.1938, was to be managed
under her authority, and upon her removal
of
defendant
from
management
for
mismanagement, plaintiff was appointed
as Manager - After her death, defendant
allegedly attempted to unlawfully occupy
and alienate temple property - Defendant,
while admitting the gift deed and temple's
existence, denied plaintiff's managerial
rights, asserting that he himself had been
managing temple since Janki Bai's demise
and
the
issue
had
already
been
adjudicated
in
earlier
proceedings
culminating in Civil Appeal No. 45 of 1996,
affirmed up to Supreme Court - Relying on
plea of res judicata, trial court dismissed
suit under O. VII R. 11(d) C.P.C., holding it
barred u/s 11 C.P.C., giving rise to instant
first appeal.
Held: In the instant case, it is evident that trial
court while deciding defendant's application
under O. 7 R. 11 CPC has considered his written
statement, additional written statement and
several documents submitted by him, which is
contrary to law laid down by Apex Court -
Trial court erred in considering written
statement and
documents
submitted
by
defendant while disposing application under
O. 7 R. 11 CPC - It is also apparent that plea
of res judicata can only be examined after
detailed examination of pleadings of parties in
earlier suit and after perusing all relevant
documents
filed
by
parties,
which
is
impossible at stage of deciding defendant's
application under O. 7 R. 11 CPC - Thus, trial
court
committed
illegality
in
dismissing
plaintiff's suit under O. 7 R. 11 (d) CPC on
ground of being barred by res judicata, as
such, impugned judgment and decree passed
by trial court is unsustainable in eye of law
and liable to be set aside. [Paras 20, 21] (E13)

Case Law Cited
Prem Kishore & others v. Brahm Prakash &
others, (2023) 19 SCC 244; Pandurangan v. T.
Jayarama Chettiar & another, (2025) SCC
Online SC 1425 - relied on
Keshav Sood v. Kirti Pradeep Sood and others,
2023 SCC OnLine SC 2459 - referred to.

List of Acts
Code of Civil Procedure, 1908; U.P. Zamindari
Abolition and Land Reforms Act, 1950; Specific
Relief Act, 1963.

List of Keywords
Appeal u/s 96 C.P.C.; Permanent injunction;
Application under O. 7 R. 11(d) C.P.C.; Barred
by res judicata u/s 11 C.P.C.; Irregularities in
accounting; Malafide intention; Illegally occupy
the property of temple; Selling, transferring
property of temple; Registered gift deed;
Manager of temple; Cause of action; Written
statement; Revenue records; Suit barred by
Section 331 of U.P.Z.A.L.R.Act, 1950; Barred by
Section 34, 38, 41 of Specific Relief Act;
Detailed examination of pleadings of parties in
earlier suit; Remitted back to trial court;
Framing of preliminary issue; Opportunity to
lead oral and documentary evidence.

Case Arising From
APPELLATE JURISDICTION: First Appeal No. -
678 of 2018
From
the
judgment
and
decree
dated
10.11.2017 passed by the Court of Sri Radhey
Mohan Srivastava, Civil Judge (Senior Division),
Jhansi

Appearances for Parties
Advs. for the Appellant:
Sanjay Agrawal

Advs. for the Respondent:
Krishna Dutt Tiwari

(Delivered by Hon'ble Sandeep Jain, J.)

 1. The instant appeal under
Section 96 C.P.C. has been preferred by the
plaintiff in O.S. No.205 of 2016, Deen
Dayal Pipraiya(deceased) through Lrs. vs.
Ram Sharan against the judgment and
decree dated 10.11.2017 passed by the
Court of Sri Radhey Mohan Srivastava,
Civil Judge (Senior Division), Jhansi
9 All. Deen Dayal Pipraiya & Ors. Vs. Ram Sharan
941
whereby the plaintiffs suit for the relief of
permanent injunction has been dismissed
under Order 7 Rule 11(d) C.P.C. on the
ground that it is barred by res judicata
under Section 11 C.P.C.

2. Factual matrix is that the
plaintiff-appellant filed O.S. No.205 of
2016 in the lower court with the averments
that Sri Thakur Maithli Raman Jee
Maharaj, Virajman Mandir Kunj i.e.
plaintiff no.2 is a private temple, of which
the plaintiff no.1, Deen Dayal Pipraiya was
the Manager. The immovable property of
the temple is situated in Chak no.40 in
Village Nunar, Tehsil Garautha, District
Jhansi, whose khata numbers alongwith
total area were specified in the plaint.

3. It was further averred that
previously the owner of temple-plaintiff
no.2 was Smt. Janki Bai widow of
Rajaram, who inherited the property from
her father-in-law, Mathura Prasad through
registered gift dated 13.09.1938, which was
registered at Book No.1, Jeeld 102, pages
322-324 at Sr. No.296 on 14.09.1938 in the
office of Sub Registrar, Mauranipur, in
which it was specifically mentioned that
the right of appointing Manager, for
managing the property of the temple vested
solely in Smt. Janki Bai, and in accordance
with that right, one person, namely Ram
Sharan was appointed as manager of the
temple. The plaintiff further averred that
since Ram Sharan did not honestly
managed the affairs of the temple and
committed irregularities in the accounting,
as such, Smt. Janki Bai removed him, and
thereafter, appointed plaintiff no.1 as the
Manager of plaintiff no.2. The plaintiff
further averred that Smt. Janki Bai died on
18.02.1983, her father-in-law, Mathura
Prasad also died in the 1940, but his
registered gift deed has not been cancelled
by any competent court till date. It was
further averred by the plaintiff that the
defendant is a fraudulent person with
malafide intention, who intends to illegally
occupy the property of the temple plaintiff
no.2, and to transfer it to some other
person.
The
defendant
also
illegally
harvested the crops standing on the
property of plaintiff no.2. The defendant
also managed to sell the property of
plaintiff no.2, who is in the company of
anti-social elements, who was having
influence in political circles. It was also
submitted that defendant had no concern
with the property of the temple plaintiff
no.2.

4. With these submissions, it was
prayed that the defendant be restrained
from selling, transferring the property of
the plaintiff temple, from harvesting the
crops standing on the temple property, by
decree of permanent injunction granted by
the court in favour of the plaintiffs.

5. During pendency of the suit, the
defendant filed his written statement in
which he accepted that on 13.09.1938, a
registered gift deed by Mathura Prasad was
executed in favour of Smt. Janki Bai,
widow of Rajaram and he also accepted
that a temple is situated on the disputed
property. He also accepted that Janki Bai
died on 18.02.1983 and also her father-inlaw died in the year 1940, and also
accepted that the registered gift deed has
not been cancelled by any competent court
till date, but he denied that plaintiff no.1 is
the Manager of the temple plaintiff no.2, as
such, it was averred that the plaintiff no.1
had no cause of action to file the present
suit. The defendant specifically denied that
plaintiff no.1 was the Manager of temple
plaintiff no.2. He averred that after the
death of Janki Bai, he was vested with the
942 INDIAN LAW REPORTS ALLAHABAD SERIES
right to manage the properties of templeplaintiff no.2 and since then he was
managing the affairs of the temple-plaintiff
no.2. Since then his name is recorded in the
revenue records and he is harvesting the
crops. He specifically pleaded that he had
earlier filed O.S. No.33 of 1989, Sri Thakur
Maithli Raman Jee Maharaj vs. Deen Dayal
Pipraiya and others in the Court of Civil
Judge (Junior Division), Jhansi, which was
dismissed on 27.02.1996, against which he
had filed Civil Appeal No.45 of 1996,
Thakur Maithli Raman Jee Maharaj vs.
Deen Dayal Pipraiya in the Court of
District Judge Jhansi, which was partly
allowed by the Court of 6th Additional
District Judge, Jhansi on 31.03.1998 and
consequently
plaintiff
no.1,
was
permanently restrained from interfering in
the affairs of the temple-plaintiff no.2.

6. He further submitted that the
judgment in First Appeal No. 45 of 1996
was challenged in Second Appeal No.1011
of 1998, Deen Dayal Pipraiya vs. Thakur
Maithli Raman Jee Maharaj before the
High Court, which was dismissed on merits
on 16.03.2001, against which Deen Dayal
Pipraiya filed S.L.P. No.7976 of 2001
before the Apex Court, which was also
dismissed on 11.05.2001, as such, the
decision of the appellate court dated
31.03.1998 attained finality, on its basis,
plaintiff no.1-Deen Dayal Pipraiya, had no
right to manage the affairs of the templeplaintiff no.2. He further submitted that
since the judgment of the appellate court in
Civil Appeal No. 45 of 1996, was affirmed
up to the Apex Court, as such, the plaintiff
no.1 had no right to re-agitate the issue
again on the same facts in the instant suit,
which was also barred by the provisions of
Section 11 C.P.C. He further submitted that
since plaintiff no.1s name was not
recorded in the revenue record, as such, the
suit was also barred by Section 331 of the
U.P.
Zamindari
Abolition
and
Land
Reforms Act, 1950 and also since plaintiff
no.1 had no possession of the suit property,
as such, plaintiffs suit was also barred by
Section 34, 38, 41 of the Specific Relief
Act.

7. With these submissions, it was
prayed
that
the
plaintiffs
suit
be
dismissed.

8. During pendency of the suit,
plaintiff no.1, Deen Dayal Pipraiya died on
08.04.2017,
as
such,
his
legal
representatives were substituted in the suit.

9. In the trial court, the defendant
moved an application under Order 7 Rule
11 C.P.C. with the submissions that the
disputed property in the suit is similar to
that in Civil Appeal No.45 of 1996, the
parties are also the same and since the
decision in that civil appeal was affirmed
up to the Apex Court, and since the
plaintiff no.1 filed the suit against the same
parties in respect of the same property on
false ground, as such, the plaintiffs suit
was barred by res judicata under Section 11
C.P.C. With these averments, it was prayed
that the plaintiffs suit be dismissed, being
barred under Section 11 C.P.C.

10. The plaintiff did not file written
objection against the defendants above
application.

11. The trial court vide impugned
order
dated
10.11.2017
allowed
the
defendants application under Order 7
Rule 11 C.P.C. by concluding that the
plaintiffs suit was barred by res judicata
Section 11 C.P.C., aggrieved against
which, the instant first appeal has been
filed by the plaintiff-appellants.
9 All. Deen Dayal Pipraiya & Ors. Vs. Ram Sharan
943
12.
Learned
counsel
for
the
plaintiff-appellants submitted that the issue
of res judicata is a mixed question of law
and fact, which can only be appreciated
after pleadings of the parties are complete
and also there is oral evidence of the parties
on
record.
Learned
counsel
further
submitted that the issue of res judicata
cannot be solely decided on the basis of
plaint averments, without examining the
documents submitted by the defendant.

13. Learned counsel submitted that
it is well settled that at the time of
disposing application under Order 7 Rule
11 C.P.C., only the plaint averments are to
be examined, but since the plea of res
judicata cannot be solely decided on the
basis of plaint averments, as such, the trial
court erred in dismissing the plaintiff suit
under Order 7 Rule 11 CPC. Learned
counsel relied on the case law of Prem
Kishore & others Vs. Brahm Prakash &
others,
(2023)
19
SCC
244
and
Pandurangan Vs. T. Jayarama Chettiar &
another, (2025) SCC Online SC 1425 in
support of his contentions.

14.
Learned
counsel
for
the
appellant submitted that the issue of res
judicata cannot be decided under Order 7
Rule 11 CPC and, as such, the trial court
has
committed
material
illegality
in
rejecting the plaintiffs suit. With these
submissions, it was submitted that the
appeal be allowed and the matter be
remitted back for disposal in accordance
with law.

15. None is present for the
defendant-respondent.

16. Heard the learned counsel for
the plaintiff-appellants and perused the
record.
17. The Apex Court in the case of
Prem Kishore (supra) while discussing
whether a suit can be dismissed under
Order 7 Rule 11 (d) CPC as being barred
by res judicata, held as under:-

 28. At this stage, it would be
necessary to refer to the decisions that
particularly deal with the question whether
res judicata can be the basis or ground for
rejection of the plaint. In Kamala and
others v. K.T. Eshwara Sa (2008) 12 SCC
661, the trial Judge had allowed an
application for rejection of the plaint in a
suit for partition and this was affirmed
[Kamala v. K.T. Eshwara Sa, 2007 SCC
OnLine Kar 819] by the High Court. S.B.
Sinha, J. speaking for the two-Judge Bench
examined the ambit of Order 7 Rule
11(d)CPC and observed :(SCC pp. 668-69,
paras 21-22)

 21. Order 7 Rule 11(d) of the
Code has limited application. It must be
shown that the suit is barred under any law.
Such a conclusion must be drawn from the
averments made in the plaint. Different
clauses in Order 7 Rule 11, in our opinion,
should not be mixed up. Whereas in a given
case, an application for rejection of the plaint
may be filed on more than one ground
specified in various sub-clauses thereof, a
clear finding to that effect must be arrived at.
What would be relevant for invoking clause
(d) of Order 7 Rule 11 of the Code are the
averments made in the plaint. For that
purpose, there cannot be any addition or
subtraction. Absence of jurisdiction on the
part of a court can be invoked at different
stages and under different provisions of the
Code. Order 7 Rule 11 of the Code is one,
Order 14 Rule 2 is another.

 22. For the purpose of invoking
Order 7 Rule 11(d) of the Code, no amount
944 INDIAN LAW REPORTS ALLAHABAD SERIES
of evidence can be looked into. The issues
on merit of the matter which may arise
between the parties would not be within the
realm of the court at that stage. All issues
shall not be the subject-matter of an order
under the said provision.

 23. The principles of res judicata,
when attracted, would bar another suit in
view of Section 12 of the Code. The
question involving a mixed question of law
and fact which may require not only
examination of the plaint but also other
evidence and the order passed in the earlier
suit may be taken up either as a preliminary
issue or at the final hearing, but, the said
question cannot be determined at that stage.

 24. It is one thing to say that the
averments made in the plaint on their face
discloses no cause of action, but it is
another thing to say that although the same
discloses a cause of action, the same is
barred by a law.

 25. The decisions rendered by
this Court as also by various High Courts
are not uniform in this behalf. But, then the
broad principle which can be culled out
therefrom is that the court at that stage
would not consider any evidence or enter
into a disputed question of fact or law. In
the event, the jurisdiction of the court is
found to be barred by any law, meaning
thereby, the subject-matter thereof, the
application for rejection of plaint should be
entertained.

 30. Similarly, in Soumitra Kumar
Sen v. Shyamal Kumar Sen (2018) 5 SCC
644 : (2018) 3 SCC (Civ) 329 , an application
was moved under Order 7 Rule 11CPC
claiming rejection of the plaint on the ground
that the suit was barred by res judicata. The
trial Judge dismissed the application and the
judgment of the trial court was affirmed in
revision by the High Court. A.K. Sikri, J.
while affirming the judgment of the High
Court, held :( SCC p. 649, para 9)

 9. In the first instance, it can be seen
that insofar as relief of permanent and
mandatory injunction is concerned that is
based on a different cause of action. At the
same time that kind of relief can be considered
by the trial court only if the plaintiff is able to
establish his locus standi to bring such a suit. If
the averments made by the appellant in their
written statement are correct, such a suit may
not be maintainable inasmuch as, as per the
appellant it has already been decided in the
previous two suits that Respondent 1-plaintiff
retired from the partnership firm much earlier,
after taking his share and it is the appellant (or
appellant and Respondent 2) who are entitled
to manage the affairs of M/s Sen Industries.
However, at this stage, as rightly pointed out
by the High Court, the defence in the written
statement cannot be gone into. One has to only
look into the plaint for the purpose of deciding
application under Order 7 Rule 11CPC. It is
possible that in a cleverly drafted plaint, the
plaintiff has not given the details about Suit
No. 268 of 2008 which has been decided
against him. He has totally omitted to mention
about Suit No. 103 of 1995, the judgment
wherein has attained finality. In that sense, the
plaintiff-Respondent 1 may be guilty of
suppression and concealment, if the averments
made by the appellant are ultimately found to
be correct. However, as per the established
principles of law, such a defence projected in
the written statement cannot be looked into
while deciding application under Order 7 Rule
11CPC.

Referring
to
Kamala
[Kamala v. K.T. Eshwara Sa, (2008) 12
SCC 661] , the Court further observed that
:( SCC p. 650, para 12)
9 All. Deen Dayal Pipraiya & Ors. Vs. Ram Sharan
945

12. The appellant has
mentioned about the earlier two cases
which were filed by Respondent 1 and
wherein he failed. These are judicial
records.
The
appellant
can
easily
demonstrate
the
correctness
of
his
averments by filing certified copies of the
pleadings in the earlier two suits as well as
copies of the judgments passed by the
courts in those proceedings. In fact, copies
of the orders passed in judgment and decree
dated 31-3-1997 passed by the Civil Judge
(Junior Division), copy of the judgment
dated 31-3-1998 passed by the Civil Judge
(Senior Division) upholding the decree
passed by the Civil Judge (Junior Division)
as well as copy of the judgment and decree
dated 31-7-2014 passed by the Civil Judge,
Junior Division in Suit No. 268 of 2008 are
placed on record by the appellant. While
deciding the first suit, the trial court gave a
categorical finding that as per MoU signed
between the parties, Respondent 1 had
accepted a sum of Rs 2,00,000 and,
therefore, the said suit was barred by
principles
of
estoppel,
waiver
and
acquiescence. In a case like this, though
recourse to Order 7 Rule 11CPC by the
appellant was not appropriate, at the same
time, the trial court may, after framing the
issues, take up the issues which pertain to
the maintainability of the suit and decide
the same in the first instance. In this
manner the appellant, or for that matter the
parties, can be absolved of unnecessary
agony of prolonged proceedings, in case
the appellant is ultimately found to be
correct in his submissions.

 31. This Court in Soumitra
Kumar Sen [Soumitra Kumar Sen v.
Shyamal Kumar Sen, (2018) 5 SCC 644 :
(2018) 3 SCC (Civ) 329] was examining a
case where the defendant had moved an
application before the trial court under
Order 7 Rule 11 of CPC requesting the
court to reject the plaint on the ground of
res judicata. The Courts below had rejected
such a prayer upon which the defendant
had approached this Court. This Court,
referring to its various judgments on the
point, upheld such orders observing that if
the averments made by the appellant in the
written statement are correct, the suit may
not be maintainable. However, at this stage,
as rightly held by this Court, the defence in
the written statement cannot be gone into.
One has to look into the plaint for the
purpose of deciding application under
Order 7 Rule 11CPC.

 33. On a perusal of the above
authorities, the guiding principles for
deciding an application under Order 7 Rule
11(d)CPC can be summarised as follows:

 (i) To reject a plaint on the
ground that the suit is barred by any law,
only the averments in the plaint will have
to be referred to;

 (ii) The defence made by the
defendant in the suit must not be
considered while deciding the merits of the
application;

 (iii) To determine whether a suit
is barred by res judicata, it is necessary that
(a) the previous suit is decided, (b) the
issues in the subsequent suit were directly
and substantially in issue in the former suit;
(c) the former suit was between the same
parties or parties through whom they claim,
litigating under the same title; and (d) that
these issues were adjudicated and finally
decided by a court competent to try the
subsequent suit; and

 (iv) Since an adjudication of the
plea of res judicata requires consideration
946 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

 (See : Srihari Hanumandas Totala
v. Hemant Vithal Kamat (2021) 9 SCC 99 :
(2021) 4 SCC (Civ) 489] )

 18. The above principle of law
was reiterated by the Apex Court in the
case of Pandurangan (supra). It was further
held that in Keshav Sood v. Kirti Pradeep
Sood and others 2023 SCC OnLine SC
2459, this 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 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.

19. From the perusal of the above
law laid down by the Apex Court in the case
of Prem Kishore (supra) and Pandurangan
(supra), it is evident that the issue of res
judicata could not have been decided by the
trial court, on an application under Order 7
Rule 11 CPC, where only the statement in the
plaint are to be perused. It is clear that under
Order 7 Rule 11 CPC, the written statement
and the documents submitted by the
defendant cannot be examined, to arrive at a
conclusion that the suit is barred by res
judicata. It is clear that the plea of res judicata
requires
detailed
examination
of
the
pleadings, issues, and decision in the previous
suit which is beyond the scope of Order 7
Rule 11 CPC, where only the plaint
averments and documents of the plaintiff can
be perused.

20. In the instant case, it is evident
that the trial court while deciding the
defendants application under Order 7 Rule 11
CPC has considered his written statement,
additional written statement and several
documents submitted by him, which is contrary
to the above law laid down by the Apex Court.
The trial court erred in considering the written
statement and documents submitted by the
defendant while disposing application under
Order 7 Rule 11 CPC. It is also apparent that
the plea of res judicata can only be examined
after detailed examination of the pleadings of
the parties in the earlier suit and after perusing
all the relevant documents filed by the parties,
which is impossible at the stage of deciding
defendants application under Order 7 Rule 11
CPC.

21. In view of the above, it is clear
that the trial court committed material
illegality in dismissing the plaintiffs suit
under Order 7 Rule 11 (d) CPC on ground of
being barred by res judicata, as such, the
impugned judgment and decree passed by the
trial court is unsustainable in the eye of law
and
is
liable
to
be
set
aside.
9 All. Shailesh Kumar Vs. Smt. Vibha Gupta
947
22.
The
appeal
is
hereby
allowed. Consequently, the impugned
judgment and decree of the trial court
dated 10.11.2017 in O.S. No.205 of
2016 is set aside, the original suit is
restored on its original number. The
matter is remitted back to the trial
court.

23. The trial court is directed to
decide the issue of res judicata after
framing it as a preliminary issue and
after giving opportunity to both the
parties to lead oral and documentary
evidence on this issue, in accordance
with law, expeditiously.

24. However, in the facts and
circumstances of the case, the parties shall
bear their respective costs.

25. Office is directed to prepare the
decree accordingly.

26. Interim order, if any, stands
vacated.

27. All the pending applications, if
any, stand disposed of.
----------
(2025) 9 ILRA 947
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.09.2025

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 719 of 2022

Shailesh Kumar ...Appellant
Versus
Smt. Vibha Gupta ...Respondent

Counsel for the Appellant:
Shashi Prakash Rai, Shrinath
Counsel for the Respondent:
Anand Kumar Srivastava, Udayan Nandan

Issue for Consideration
Issue pertains to whether the trial court
committed a manifest illegality in rejecting
plaintiff's suit under O. VII R. 11 of Code of Civil
Procedure, 1908, on the grounds of lack of
territorial jurisdiction and alleged bar u/s 4(1) of
Benami Transactions (Prohibition) Act, 1988,
without confining its consideration to plaint
averments and documents filed by plaintiff, as
required by law.

Headnotes
Benami Transactions (Prohibition) Act,
1988 - s. 4(1) - Code of Civil Procedure,
1908 - O. 7 R. 11, s. 17 - Specific Relief
Act , 1963 - s. 34 - Plaintiff - appellant
instituted a civil suit seeking a declaration
of ownership and consequential relief in
respect of certain immovable property,
asserting that property in question was
purchased
benami
in
the
name
of
defendant,
though
the
entire
consideration had been paid by plaintiff
from his own lawful sources - Trial court,
upon application filed by defendant under
O. VII R. 11 of Code of Civil Procedure,
1908, rejected the plaint on grounds that
suit was barred by Section 4(1) of Benami
Transactions (Prohibition) Act, 1988, and
that court lacked territorial jurisdiction to
entertain the claim - Aggrieved by such
rejection, plaintiff preferred First Appeal
before High Court, contending that trial
court erred in law by dismissing the plaint
without confining itself to averments
contained therein and by entering into a
factual examination of issues that could
be
decided
only
after trial,
thereby
vitiating the impugned order as being
contrary
to
settled
legal
principles
governing the exercise of jurisdiction
under O. VII R. 11 CPC.

Held: From the law laid down by Apex Court in
the case of Pushpalata (infra), Mangathai
Ammal (infra), Marcel Martins (infra) and
Shaifali Gupta (infra) dealing with Benami
Transactions (Prohibition) Act,1988 before its
amendment in year 2016, and after its