Srihari Hanumandas Totala vs. Hemant Vithal Kamat & Ors [Civil Appeal No 4665 2021]
Plaint cannot be rejected on plea of res judicata
Brief: In the present appeal, the Supreme Court after adverting to several principles relating rejection of plain held that a plaint cannot be rejected on the ground of res judicata as it requires the court to go beyond the pleading in the plaint.
RELEVANT PARAGRAPH
20. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) 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 defense 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.