# PREM KISHORE & ORS v. BRAHM PRAKASH & ORS

- **Citation:** [2023] 4 S.C.R. 635
- **Court:** Supreme Court of India
- **Decided:** 2023-03-29
- **Case number:** Civil Appeal No. 1948 of 2013
- **Bench:** Sudhanshu Dhulia, J. B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prem-kishore-ors-v-brahm-prakash-ors-37064
- **Pages:** 34

## Headnote

Code of Civil Procedure, 1908 - s. 11, Or. 7 R. 11, Or, 9 R. 8,
Or. 17 R. 3 - Delhi Rent Control Act, 1958 - s. 14(1)(a) - The
landlord (original plaintiff) filed an eviction petition against the
respondent (tenant) - The respondent filed the written statement
and denied the relationship of landlord and tenant - Thereafter, the
landlord failed to appear before the Rent Controller for the purpose
of establishing the relationship of landlord and tenant between the
parties - Rent controller proceeded to dismiss the eviction petition
and the same was not challenged by way of appeal - After the
demise of the landlord, the appellant (successors in interest) filed
another eviction petition - The respondent raised the plea of res
judiciata u/s 11 and preferred an application under Or. 7 R. 11 for
rejection of plaint - Additional Rent Controller declined to reject
the plaint - Aggrieved by it, the respondent preferred a civil revision
petition before the High Court and the same was allowed by the
High Court by holding that the fresh eviction petition filed by the
appellant is hit by principles of res judicata as landlord was having
been afforded an opportunity to lead evidence and having failed to
produce any evidence in the Court, it has to be taken as a decision
on merits under Or.17 Rule 3 for the purpose of Section 11 of the
Code - On appeal, held: High Court committed an error in taking
the view that the order passed by the Additional Rent Controller
could be said to be one passed in exercise of powers under Rule 3
of Or. 17 - The order did not purport to be one of dismissal for
default or on merits and it cannot be taken to mean other than what
it purported to be - Further, the order of the Rent Controller did not
purport to be a final disposal of the suit and what it did was that it
merely stopped the proceedings and it did nothing more and therefore
this is not final decision of the suit within the meaning of Or. 9 Rule
8 and Or. 17 Rule 3 resply of the CPC - Suit is revived.
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SUPREME COURT REPORTS
[2023] 4 S.C.R.
Code of Civil Procedure, 1908 - When it would not be Res
judicata in a subsequent suit - Held: Where the former suit is dismissed
by the trial court for want of jurisdiction, or for default of the
plaintiff's appearance, or on the ground of non-joinder or misjoinder of parties or multifariousness, or on the ground that the
suit was badly framed, or on the ground of a technical mistake, or
for failure on the part of the plaintiff to produce probate or letter of
administration or succession certificate when the same is required
by law to entitle the plaintiff to a decree, or for failure to furnish
security for costs, or on the ground of improper valuation, or for
failure to pay additional court fee on a plaint which was
undervalued, or for want of cause of action, or on the ground that
it is premature and the dismissal is confirmed in appeal (if any), the
decision, not being on the merits, would not be res judicata in a
subsequent suit.
Allowing the appeal, the Court
HELD: 1. The guiding principles for deciding an application
under Order 7 Rule 11(d) of the CPC can be summarized 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 (i) the 'previous suit' is decided, (ii) the issues in
the subsequent suit were directly and substantially in issue in
the former suit; (iii) the former suit was between the same parties
or parties through whom they claim, litigating under the same
title; and (iv) 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 of
the pleadings, issues and decisio

## Text

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 [2023] 4 S.C.R. 635
635
PREM KISHORE & ORS.
v.
BRAHM PRAKASH & ORS.
(Civil Appeal No. 1948 of 2013)
MARCH 29, 2023
[SUDHANSHU DHULIA AND J. B. PARDIWALA, JJ.]
Code of Civil Procedure, 1908 - s. 11, Or. 7 R. 11, Or, 9 R. 8,
Or. 17 R. 3 - Delhi Rent Control Act, 1958 - s. 14(1)(a) - The
landlord (original plaintiff) filed an eviction petition against the
respondent (tenant) - The respondent filed the written statement
and denied the relationship of landlord and tenant - Thereafter, the
landlord failed to appear before the Rent Controller for the purpose
of establishing the relationship of landlord and tenant between the
parties - Rent controller proceeded to dismiss the eviction petition
and the same was not challenged by way of appeal - After the
demise of the landlord, the appellant (successors in interest) filed
another eviction petition - The respondent raised the plea of res
judiciata u/s 11 and preferred an application under Or. 7 R. 11 for
rejection of plaint - Additional Rent Controller declined to reject
the plaint - Aggrieved by it, the respondent preferred a civil revision
petition before the High Court and the same was allowed by the
High Court by holding that the fresh eviction petition filed by the
appellant is hit by principles of res judicata as landlord was having
been afforded an opportunity to lead evidence and having failed to
produce any evidence in the Court, it has to be taken as a decision
on merits under Or.17 Rule 3 for the purpose of Section 11 of the
Code - On appeal, held: High Court committed an error in taking
the view that the order passed by the Additional Rent Controller
could be said to be one passed in exercise of powers under Rule 3
of Or. 17 - The order did not purport to be one of dismissal for
default or on merits and it cannot be taken to mean other than what
it purported to be - Further, the order of the Rent Controller did not
purport to be a final disposal of the suit and what it did was that it
merely stopped the proceedings and it did nothing more and therefore
this is not final decision of the suit within the meaning of Or. 9 Rule
8 and Or. 17 Rule 3 resply of the CPC - Suit is revived.
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SUPREME COURT REPORTS
[2023] 4 S.C.R.
Code of Civil Procedure, 1908 - When it would not be Res
judicata in a subsequent suit - Held: Where the former suit is dismissed
by the trial court for want of jurisdiction, or for default of the
plaintiff's appearance, or on the ground of non-joinder or misjoinder of parties or multifariousness, or on the ground that the
suit was badly framed, or on the ground of a technical mistake, or
for failure on the part of the plaintiff to produce probate or letter of
administration or succession certificate when the same is required
by law to entitle the plaintiff to a decree, or for failure to furnish
security for costs, or on the ground of improper valuation, or for
failure to pay additional court fee on a plaint which was
undervalued, or for want of cause of action, or on the ground that
it is premature and the dismissal is confirmed in appeal (if any), the
decision, not being on the merits, would not be res judicata in a
subsequent suit.
Allowing the appeal, the Court
HELD: 1. The guiding principles for deciding an application
under Order 7 Rule 11(d) of the CPC can be summarized 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 (i) the 'previous suit' is decided, (ii) the issues in
the subsequent suit were directly and substantially in issue in
the former suit; (iii) the former suit was between the same parties
or parties through whom they claim, litigating under the same
title; and (iv) 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 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. [Para 33][653F-H; 654-A-B]
2. The general principle of res judicata under Section 11 of
the CPC contain rules of conclusiveness of judgment, but for res
judicata to apply, the matter directly and substantially in issue in
the subsequent suit must be the same matter which was directly
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and substantially in issue in the former suit. Further, the suit
should have been decided on merits and the decision should have
attained finality. Where the former suit is dismissed by the trial
court for want of jurisdiction, or for default of the plaintiff's
appearance, or on the ground of non-joinder or mis-joinder of
parties or multifariousness, or on the ground that the suit was
badly framed, or on the ground of a technical mistake, or for failure
on the part of the plaintiff to produce probate or letter of
administration or succession certificate when the same is required
by law to entitle the plaintiff to a decree, or for failure to furnish
security for costs, or on the ground of improper valuation, or for
failure to pay additional court fee on a plaint which was
undervalued, or for want of cause of action, or on the ground that
it is premature and the dismissal is confirmed in appeal (if any),
the decision, not being on the merits, would not be res judicata in
a subsequent suit. [Para 34][654-C-E]
3. In the case on hand, after the first eviction petition was
instituted, the defendants therein filed their written statement
denying the relationship of landlord and tenant. After the written
statement came on record, no further evidence was led by the
plaintiffs. All that was on record was in the form of pleadings in
the plaint. The Additional Rent Controller took the view that
after the written statement came on record, it was the duty of the
plaintiffs to establish or prove the landlord tenant relationship
and having failed to adduce any evidence, the suit was liable to
be dismissed and accordingly was dismissed. The High Court
interpreted or rather construed the order of the Additional Rent
Controller as one under Rule 3 of Order 17 and, therefore, took
the view that the findings as regards the relationship of landlord
and tenant could be said to be on merits. The power conferred
on Courts under Rule 3 of Order 17 of the CPC to decide the
suit on the merits for the default of a party is a drastic power
which seriously restricts the remedy of the unsuccessful party
for redress. It has to be used only sparingly in exceptional cases.
Physical presence without preparedness to co-operate for
anything connected with the progress of the case serves no useful
purpose in deciding the suit on the merits and it is worse than
absence. In any contingency, the discretion is always with the
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS.
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[2023] 4 S.C.R.
Court to resort to Rule 2 or 3 respectively or to grant an
adjournment for deciding the suit in a regular way in spite of
default. Rules 2 and 3 respectively are only enabling provisions.
In order to decide the suit on the merits, the mere existence of
the conditions enumerated in Rule 3 alone will not be sufficient.
There must be some materials for a decision on the merits, even
though the materials may not be technically interpreted as
evidence. Sometimes the decision in such cases could be on the
basis of pleadings, documents and burden of proof. Anyhow, it is
appreciable for the Court to indicate by the judgment that the
decision is for default or on the merits. The only alternative of
the Court in cases covered by Rule 3 or the explanation to Rule
2 is not to decide on the merits alone. If such an interpretation is
given, it will amount to an unjustified preference to one who
purposely absents than to one who presents but unable to proceed
with the case. 'Appearance' and 'presence' have well recognised
meanings. They imply presence in person or through pleader
properly authorised for the purpose of conducting the case. Rule
3 comes into play only when presence is to proceed with the
case, but default is committed in any one of the three ways
mentioned in Rule 2 or explanation to Rule 2 is extracted. Those
are cases in which some materials are there for the Court to
decide the case on the merits and not cases where decision could
only be for default. That is clear from a combined reading of Rules
2 and 3 respectively and the explanation. In this case, none of
these conditions were present and the decision was evidently for
default. Rule 2 alone is attracted. The order did not purport to be
one of dismissal for default or on merits and it cannot be taken to
mean other than what it purported to be. It is in ordinary
phraseology; not legal phraseology and it cannot be divested of
its ordinary meaning. Its ordinary meaning is that the proceeding
was closed and the suit would not count as a pending one. The
later description would be redundant if the order was one of final
disposal of the suit. The order did not purport to be a final disposal
of the suit. It merely stopped the proceedings. It did nothing
more. This is not final decision of the suit within the meaning of
Order 9 Rule 8 and Order 17 Rule 3 resply of the CPC. [Paras
50, 52, 55][665-E-G; 666-B-G; 667-F-H; 668-A]
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V. Rajeshwari v. T.C. Saravanabava (2004) 1 SCC 551
: [2003] 6 Suppl. SCR 927; Kamala & others v. K.T.
Eshwara Sa (2008) 12 SCC 661 : [2008] 7 SCR 39;
Church of Christ Charitable Trust & Educational
Charitable Society v. Ponniamman Educational Trust
(2012) 8 SCC 706 : [2012] 6 SCR 404; Soumitra Kumar
Sen v. Shyamal Kumar Sen (2018) 5 SCC 644; Srihari
Hanumandas Totala v. Hemant Vithal Kamat (2021) 9
SCC 99; B. Janakiramaiah Chetty v. A.K. Parthasarthi
& Ors. (2003) 5 SCC 641 : [2003] 3 SCR 369; Prakash
Chander Manchanda v. Janki Manchanda (1986) 4
SCC 699 : [1987] 1 SCR 288 - relied on.
Union of India v. Nanak Singh AIR 1968 SC 1370 :
[1968] 2 SCR 887; Satyadhyan Ghosal & Ors. v. Smt.
Deorajin Devi & Anr. AIR 1960 SC 941 : [1960] 3
SCR 590; Om Prakash Gupta v. Rattan Singh (1964) 1
SCR 259; Gulabchand Chhotalal Parikh v. State of
Gujarat AIR 1965 SC 1153 : [1965] SCR 547 - referred
to.
Har Dayal v. Ram Ghulam AIR (31) 1944 Oudh 39;
Nila v. Punun AIR 1936 Lahore 385; Govindoss
Krishnadoss v. Rajah of Karvetnagar & Anr. AIR 1929
Madras 404; Prativadi Bhayankaram Pichamma v. K.
Sreeramulu AIR 1918 Mad 143 (FB); Mariannissa v.
Ramkalpa Gorsin ILR 34 Cal 235; Gopi Kishan v.
Ramu, AIR 1964 Raj 147; Shidramappa Irappa
Shivangi v. Basalingappa Kushnapa Kumbhar AIR 1943
Bom 321 : 1943 SCC Online Bom 16 : ILR 1944 Bom
1 (FB); R. Ravindran v. M. Rajamanickam 2006 SCC
Online Mad 169 - referred to.
Case Law Reference
[1968] 2 SCR 887
referred to
Para 22
[1960] 3 SCR 590
referred to
Para 22
(1964) 1 SCR 259
referred to
Para 22
[1965] SCR 547
referred to
Para 22
[2003] 6 Suppl. SCR 927
relied on
Para 26
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS.
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[2023] 4 S.C.R.
[2008] 7 SCR 39
relied on
Para 28
[2012] 6 SCR 404
relied on
Para 33
[2003] 3 SCR 369
relied on
Para 42
[1987] 1 SCR 288
relied on
Para 47
CIVIL APPELLATE JURISDICTION : Civil Appeal No.1948
of 2013.
From the Judgment and Order dated 04.05.2010 of the High Court
of Delhi at New Delhi in CRP No.1332 of 2002.
Mohan Pandey, M/s. Mukesh Kumar Singh and Co., Advs. for
the Appellants.
Ajay Kumar Talesara, Jamshed Bey, Mudit Talesara, Parvinder
Chauhan, Advs. for the Respondents.
The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
This appeal, by special leave, is at the instance of the original
plaintiff (landlord) of an eviction petition filed under the provisions of the
Delhi Rent Control Act, 1958 (for short, 'the Act 1958') and is directed
against the judgment and decree passed by the High Court of Delhi
dated 04.05.2010 in the Civil Revision Petition No. 1332 of 2002 by
which the High Court allowed the revision petition filed by the defendant
(tenant) thereby rejecting the plaint under the provisions of Order 7 Rule
11 of the Code of Civil Procedure (CPC) on the ground that the eviction
petition was barred by the principles of res judicata.
Factual Matrix
2. The facts giving rise to this appeal may be summaried as under.
3. It is the case of the appellants that the respondents herein
were inducted as tenants on 27.12.1987 by the father of the appellants
in respect of the property bearing House No. 163 (Old No. 143) situated
at Village Dhakka, Kingsway Camp, Delhi on monthly rent of Rs. 1050/
- excluding the electricity, water and house tax. According to the
appellants, the tenancy was for residential purpose. It is also their case
that the rent was duly paid till February, 1993.
4. The father of the appellants served a demand notice dated
04.03.1996 on the respondents claiming the arrears of rent to the tune of
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Rs. 27,800/-. According to the appellants, the notice was duly served
upon the respondents. However, the arrears of the rent was not cleared.
5. In such circumstances referred to above, the father of the
appellants filed an eviction petition on 21.05.1996 bearing Eviction Petition
No. 149 of 1996 under Section 14(1)(a) of the Act 1958.
6. In the said eviction petition, the respondents filed their written
statement and denied the relationship of landlord and tenant.
7. It appears from the materials on record that after the written
statement was filed by the respondents denying the relationship of landlord
and the tenant, the plaintiffs failed to appear before the Rent Controller
for the purpose of establishing the relationship of landlord and tenant
between the parties. The plaintiffs were granted numerous opportunities
to adduce evidence to establish the relationship of landlord and tenant.
The record reveals that the last such opportunity granted to the plaintiffs
to adduce evidence was on 09.09.1997 and again on 01.11.1997.
8. In such circumstances referred to above, the Rent Controller
proceeded to pass the following order dated 27.01.1998:-
"27.1.1998
Present: Counsel for the Petitioner Sh. Chander Shekhar.
Cl. For Petitioner submits that no witness has come today nor
summoned. No ground for further adjournment. Last opportunity
was granted to Petitioner on 9.9.97 & then on 1.11.97. Still the
Petitioner has not cared to call witness.
The PE is thus closed.
Since the relationship of Landlord tenant itself is under dispute
and the petitioner has failed to adduce any evidence to establish
this fact, I am of the opinion that there is no point in fixing the
case further for RE. The petition is thus dismissed as the petitioner
has failed to establish his case. File be consigned.
Sd/-
27.1.1998
R. Kiran Nath
RENT CONTROLLER: DELHI"
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS.
[J. B. PARDIWALA, J.]
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9. It is not in dispute that no appeal was preferred against the
aforesaid order dismissing the eviction petition. During the life time of
the original plaintiff, namely, Samey Singh, no fresh eviction petition under
Section 14(1)(a) of the Act 1958 was filed.
10. After the demise of Samey Singh (original plaintiff), the
appellants herein claiming as successors in interest filed another eviction
petition registered as Eviction Petition No. 136 of 2001 against the
respondents herein under Section 14(1)(a) of the Act 1958 claiming inter
alia arrears of rent from 01.03.1993 till the date of issuance of notice
i.e. till 18.05.2001. A written statement was filed by the respondents
herein taking the stance that Samey Singh (the original plaintiff of the
first eviction petition) i.e. the predecessor in interest of the appellants
herein had failed to prove the relationship of landlord and tenant between
the parties and in such circumstances, the same cannot be permitted to
be reopened in the second eviction petition as the same would be barred
by the principles of res judicata.
11. It appears that the respondents herein preferred an application
under the provisions of Order 7 Rule 11 of the CPC stating that the
Eviction Petition No. 136 of 2001 was barred by the principles of res
judicata and the plaint be rejected accordingly.
12. The Additional Rent Controller declined to reject the plaint
vide order dated 23.07.2002. The Additional Rent Controller while
rejecting the application filed by the respondents for rejecting of the
plaint took the view that the second eviction petition filed under Section
14(1)(a) of the Act 1958 was based on a fresh notice dated 18.05.2001
on separate cause of action and that there was no finding on merits as
regards the relationship of landlord and tenant between the parties in the
order dated 27.01.1998 referred to above. The Additional Rent Controller
in such circumstances took the view that the plea of res judicata was
not tenable in law. The application under Order 7 Rule 11(d) of the CPC
was accordingly rejected.
13. The respondents herein being dissatisfied with the order passed
by the Additional Rent Controller challenged the same by filing the Civil
Revision Petition No. 1332 of 2002 in the High Court of Delhi.
14. The High Court allowed the civil revision petition and rejected
the plaint of the Eviction Petition No. 136 of 2001 on the ground that the
same was hit by the principles of res judicata. The High Court while
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allowing the civil revision Petition filed by the respondents herein observed
as under:-
"17. In the present case in hand, Sh. Samey Singh, the predecessorin-interest of the respondents/landlords failed to produce any
evidence to establish the relationship of landlord and tenant between
the parties in the first eviction petition filed by him under Section
14(1)(a) of the Act. As the said decision was not taken in appeal
by any of the parties, the same attained finality. Having been
afforded an opportunity to lead evidence and having failed to
produce any evidence in the Court, it has to be taken as a decision
on merits under Order XVII Rule 3 of the Code of Civil Procedure
for the purpose of Section 11 of the Code.
18. By filing a subsequent eviction petition, the respondents cannot
be permitted to do directly, what they could not do indirectly. Failure
to adduce evidence, resulting in dismissal of the claim of the
respondents for want of proof, is in reality, a decision on merits.
Just as if the petitioner therein had produced evidence, which the
Court had considered as inadequate proof and had dismissed it
upon the said ground. Applicable to such a situation is the legal
maxim, 'De non apparentibus et non existentibus eadem est
ratio'. It is a rule which applies to those things, which do not
appear, and to things which do not exist. So, for maintaining his
right to claim arrears of rent, if Sh.Samey Singh was required to
prove that he was the landlord of the petitioner, but he failed to do
so, the Rent Controller had no option but to decide the issue against
him on account of non-production of evidence. In other words,
what does not appear, must be regarded as non-existent.
19. In these circumstances, the decision of the Rent Controller
dated 27.01.1998, has to be taken as a decision on the merits of the
matter. Merely because a subsequent cause of action has been pleaded
by the respondents in the second eviction petition by claiming arrears of
rent not only for the period for which the first eviction petition was filed,
but also for the subsequent period upto 18.05.2001, cannot be a ground
to hold that the second eviction petition was maintainable. The relationship
of landlord and tenant between the parties was not established in the
earlier proceedings and the same point is directly and substantially in
issue in the second petition wherein the foundation to claim the arrears
of rent is the stand of the respondents (petitioners therein) that they are
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS.
[J. B. PARDIWALA, J.]
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the landlords of the petitioner herein. The findings returned by the Rent
Controller in his order dated 27.01.1998 passed in the first petition have
to be held to be findings on merits and having been adjudicated
conclusively, are final in nature and act as a bar of res judicata on the
second eviction petition preferred by the respondents.
20. In view of the aforesaid facts and circumstances, this Court is
of the opinion that the impugned order dated 23.07.2002 is not in
accordance with law and cannot be sustained. The said order is therefore
set aside and quashed. The application filed by the petitioner under Order
VII Rule 11 of the CPC is allowed. It is held that the second eviction
petition filed by the respondents under Section 14(1)(a) of the Act is
liable to be rejected being barred by the principles of res judicata.
Ordered accordingly."
(Emphasis supplied)
15. Being dissatisfied with the aforesaid order passed by the High
Court, the appellants, claiming to be the lawful owners and landlord of
the property in question, have come up before this Court by way of the
present appeal.
Submissions on behalf of the appellants
16. The learned counsel appearing on behalf of the appellants
vehemently submitted that the High Court committed a serious error in
taking the view that the second Eviction Petition No. 136 of 2001 was
not maintainable in law as the same was hit by the principles of res
judicata. He would submit that the plaint could not have been rejected
under the provisions of Order 7 Rule 11(d) of the CPC as the issue of
res judicata could be said to be a mixed question of law and fact. He
would submit that there is no averment in the plaint of the Eviction Petition
No. 136 of 2001 on the basis of which it could be said that the eviction
petition is barred by any provisions of law.
17. The learned counsel further submitted that the High Court
also committed an error in applying the principles of Order 17 Rule 3 of
the CPC as the first order passed by the Rent Controller dated 27.01.1998
in the first eviction petition was not on merits and, therefore, no finding
could be said to have been rendered as regards the relationship of landlord
and tenant which could be said to be binding between the parties in the
second eviction petition.
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18. In such circumstances referred to above, the learned counsel
prays that there being merit in his appeal, the same may be allowed and
the impugned order be set aside.
Submissions on behalf of the respondent No. 1
19. The learned counsel appearing for the respondent No. 1, on
the other hand, vehemently opposed the present appeal by submitting
that no error not to speak of any error of law could be said to have been
committed by the High Court in passing the impugned order.
20. He would submit that in the first round of litigation, late Samey
Singh (original plaintiff) was given sufficient time and opportunities by
the Rent Controller to establish the landlord tenant relationship. However,
Samey Singh failed to appear before the court and also failed to lead any
evidence in that regard. In such circumstances, the Rent Controller was
justified in dismissing the eviction petition.
21. The learned counsel would submit that the High Court rightly
observed that the order dated 27.01.1998 passed by the Rent Controller
in the first round of litigation could be said to be under the provisions of
Order 17 Rule 3 of the CPC and, if that be so, then the finding that the
original plaintiff i.e. Samey Singh was not able to establish the landlord
tenant relationship could be said to be on merits. He would submit that
once such finding has come on record, the appellants later in point of
time claiming through Samey Singh as successors in interest could not
have preferred a fresh eviction petition on the very same grounds as the
same would be hit by the principles of res judicata. He would submit
that the High Court rightly rejected the plaint of the eviction petition
under the provisions of Order 7 Rule 11(d) of the CPC.
22. Learned counsel appearing for the respondent No. 1 in support
of submissions has placed reliance on the following decisions:-
1.
Union of India v. Nanak Singh, AIR 1968 SC 1370 :
(1968) 2 SCR 887
2.
Satyadhyan Ghosal & Ors. v. Smt. Deorajin Devi &
Anr., AIR 1960 SC 941 : (1960) 3 SCR 590
3.
Har Dayal v. Ram Ghulam, AIR (31) 1944 Oudh 39
4.
Nila v. Punun, AIR 1936 Lahore 385
5.
Govindoss Krishnadoss v. Rajah of Karvetnagar & Anr.,
AIR 1929 Madras 404
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS.
[J. B. PARDIWALA, J.]
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6.
Om Prakash Gupta v. Rattan Singh, (1964) 1 SCR 259
7.
Gulabchand Chhotalal Parikh v. State of Gujarat, AIR
1965 SC 1153
Analysis
23. Having heard the learned counsel for the parties and having
gone through the materials on record, the only question that falls for our
consideration is whether the High Court was justified in rejecting the
plaint of the eviction petition on the ground that the second eviction petition
was barred by the principles of res judicata.
24. Order 7 Rule 11 of the CPC reads as follows:-
"11. Rejection of plaint.- The plaint shall be rejected in the
following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on
being required by the Court to correct the valuation within a time
to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is
returned upon paper insufficiently stamped, and the plaintiff, on
being required by the Court to supply the requisite stamp-paper
within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to
be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9:
Provided that the time fixed by the Court for the correction of the
valuation or supplying of the requisite stamp-paper shall not be
extended unless the Court, for reasons to be recorded, is satisfied
that the plaintiff was prevented by any cause of an exceptional
nature for correcting the valuation or supplying the requisite stamppaper, as the case may be, within the time fixed by the Court and
that refusal to extend such time would cause grave injustice to
the plaintiff."
(Emphasis supplied)
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25. Order 7 Rule 11(d) of CPC provides that the plaint shall be
rejected "where the suit appears from the statement in the plaint to be
barred by any law". Hence, in order to decide whether the suit is barred
by any law, it is the statement in the plaint which will have to be construed.
The Court while deciding such an application must have due regard only
to the statements in the plaint. Whether the suit is barred by any law
must be determined from the statements in the plaint and it is not open to
decide the issue on the basis of any other material including the written
statement in the case. Before proceeding to refer to precedents on the
interpretation of Order 7 Rule 11(d) CPC, we find it imperative to refer
to Section 11 of CPC which defines res judicata:-
"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."
26. Section 11 of the CPC enunciates the rule of res judicata : a
court shall not try any suit or issue in which the matter that is directly in
issue has been directly or indirectly heard and decided in a 'former suit'.
Therefore, for the purpose of adjudicating on the issue of res judicata it
is necessary that the same issue (that is raised in the suit) has been
adjudicated in the former suit. It is necessary that we refer to the exercise
taken up by this Court while adjudicating on res judicata, before referring
to res judicata as a ground for rejection of the plaint under Order 7
Rule 11. Justice R C Lahoti (as the learned Chief Justice then was),
speaking for a two Judge bench in V. Rajeshwari v. T.C. Saravanabava,
(2004) 1 SCC 551, discussed the plea of res judicata and the particulars
that would be required to prove the plea. The Court held that it is
necessary to refer to the copies of the pleadings, issues and the judgment
of the 'former suit' while adjudicating on the plea of res judicata:-
"11. The rule of res judicata does not strike at the root of the
jurisdiction of the court trying the subsequent suit. It is a rule of
estoppel by judgment based on the public policy that there should
be a finality to litigation and no one should be vexed twice for the
same cause.
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS.
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13. Not only the plea has to be taken, it has to be substantiated by
producing the copies of the pleadings, issues and judgment in the
previous case. May be, in a given case only copy of judgment in
previous suit is filed in proof of plea of res judicata and the judgment
contains exhaustive or in requisite details the statement of pleadings
and the issues which may be taken as enough proof. But as pointed
out in Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4
SCC 780] the basic method to decide the question of res judicata
is first to determine the case of the parties as put forward in their
respective pleadings of their previous suit and then to find out as
to what had been decided by the judgment which operates as res
judicata. It is risky to speculate about the pleadings merely by a
summary of recitals of the allegations made in the pleadings
mentioned in the judgment. The Constitution Bench in Gurbux
Singh v. Bhooralal [AIR 1964 SC 1810 : (1964) 7 SCR 831]
placing on a par the plea of res judicata and the plea of estoppel
under Order 2 Rule 2 of the Code of Civil Procedure, held that
proof of the plaint in the previous suit which is set to create the
bar, ought to be brought on record. The plea is basically founded
on the identity of the cause of action in the two suits and, therefore,
it is necessary for the defence which raises the bar to establish
the cause of action in the previous suit. Such pleas cannot be left
to be determined by mere speculation or inferring by a process of
deduction what were the facts stated in the previous pleadings.
Their Lordships of the Privy Council in Kali Krishna Tagore v.
Secy. of State for India in Council [(1887-88) 15 IA 186 : ILR
16 Cal 173] pointed out that the plea of res judicata cannot be
determined without ascertaining what were the matters in issue
in the previous suit and what was heard and decided. Needless to
say, these can be found out only by looking into the pleadings, the
issues and the judgment in the previous suit."
(Emphasis supplied)
27. This Court in the case of V. Rajeshwari (supra) observed
that the rule of res judicata does not strike at the root of the jurisdiction
of the Court trying the subsequent suit. It is a rule of estoppal based on
the public policy of achieving finality to litigation. The plea of res judicata
is founded on proof of certain facts and then applying the law to the
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facts so found. It is, therefore, necessary that the foundation for the
belief must be laid in the pleadings and then the issue must be framed
and tried.
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 & 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 by the High Court. Justice S.B. Sinha speaking for the two
Judge Bench examined the ambit of Order 7 Rule 11(d) of the CPC and
observed:-
"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 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."
(Emphasis supplied)
The Court further held:-
"23. The principles of res judicata, when attracted, would bar
another suit in view of Section 12 of the Code. The
questioninvolving 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
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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."
(Emphasis supplied)
29. The above view has been consistently followed in a line of
decisions of this Court. In Church of Christ Charitable Trust &
Educational Charitable Society v. Ponniamman Educational Trust,
(2012) 8 SCC 706, Justice P. Sathasivam (as the learned Chief Justice
then was), speaking for a two judge Bench, observed that:-
"10. [...] It is clear from the above that where the plaint does not
disclose a cause of action, the relief claimed is undervalued and
not corrected within the time allowed by the court, insufficiently
stamped and not rectified within the time fixed by the court, barred
by any law, failed to enclose the required copies and the plaintiff
fails to comply with the provisions of Rule 9, the court has no
other option except to reject the same. A reading of the above
provision also makes it clear that power under Order 7 Rule 11 of
the Code can be exercised at any stage of the suit either before
registering the plaint or after the issuance of summons to the
defendants or at any time before the conclusion of the trial.
11. This position was explained by this Court in Saleem Bhai v.
State of Maharashtra [(2003) 1 SCC 557], in which while
considering Order 7 Rule 11 of the Code, it was held as under:
(SCC p. 560, para 9)
"9. A perusal of Order 7 Rule 11 CPC makes it clear that the
relevant facts which need to be looked into for deciding an
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application thereunder are the averments in the plaint. The
trial court can exercise the power under Order 7 Rule 11 CPC
at any stage of the suit-before registering the plaint or after
issuing summons to the defendant at any time before the
conclusion of the trial. For the purposes of deciding an
application under clauses (a) and (d) of Rule 11 of Order 7
CPC, the averments in the plaint are germane; the pleas taken
by the defendant in the written statement would be wholly
irrelevant at that stage, therefore, a direction to file the written
statement without deciding the application under Order 7 Rule
11 CPC cannot but be procedural irregularity touching the
exercise of jurisdiction by the trial court."
It is clear that in order to consider Order 7 Rule 11, the court has
to look into the averments in the plaint and the same can be
exercised by the trial court at any stage of the suit. It is also clear
that the averments in the written statement are immaterial and it
is the duty of the Court to scrutinize the averments/pleas in the
plaint. In other words, what needs to be looked into in deciding
such an application are the averments in the plaint. At that stage,
the pleas taken by the defendant in the written statement are
wholly irrelevant and the matter is to be decided only on the plaint
averments. These principles have been reiterated in Raptakos
Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] and
Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [(2006) 3
SCC 100]."
30. Similarly, in Soumitra Kumar Sen v. Shyamal Kumar Sen,
(2018) 5 SCC 644, an application was moved under Order 7 Rule 11
of the CPC claiming rejection of the plaint on the ground that the suit
was barred by res judicata. The Trial Judge dismissed the application
and the judgement of the Trial Court was affirmed in revision by the
High Court. Justice A.K. Sikri, while affirming the judgment of the High
Court, held:-
"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
PREM KISHORE & ORS. v. BRAHM PRAKASH & ORS.
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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 11 CPC. 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.