Orissa High Court
*** vs Basanta Kumar Dash & Others on 31 October, 2025
ORISSA HIGH COURT : CUTTACK
CRP No.7 of 2022
An application under Section 115 of the CPC, 1908.
***
Srusti Prava Das ... Petitioner.
-VERSUS-
Basanta Kumar Dash & Others ... Opposite Parties.
Counsel appeared for the parties:
For the Petitioner : Mr. U.K. Samal, Advocate For the Opposite Parties : Mr. A. Tripathy, Advocate.
(For the Opp. Party Nos.1 & 2) P R E S E N T:
HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Date of Hearing : 27.10.2025 :: Date of Judgment : 31.10.2025 CRP No.7 of 2022 Page 1 of 9 J UDGMENT ANANDA CHANDRA BEHERA, J.--
1. This Revision under Section 115 of the CPC, 1908 has been filed by the petitioner (defendant No.2 in the suit vide C.S. No.209 of 2020) against the plaintiffs in the suit vide C.S. No.209 of 2020 arraying them (plaintiffs) as Opp. Party Nos.1 and 2 and also arraying the defendant No.1 and 3 to 9 as proforma Opp. Parties praying for setting aside the impugned order of rejection to his petition under Order 7, Rule 11 read with Section 151 of the CPC, 1908 passed on dated 31.01.2022 in the suit vide C.S. No.209 of 2020 by the learned Senior Civil Judge, Odagaon.
2. The factual backgrounds of this Revision, which promoted the petitioner (defendant No.2) for filing of the same is that, the Opp. Party Nos.1 and 2 in this Revision being the plaintiffs filed the suit vide C.S. No.209 of 2020 in the Court of learned Senior Civil Judge, Odagaon against the defendants (petitioner and Opp. Party Nos.3 to 9 in this Revision) praying for partition, declaration and permanent injunction. CRP No.7 of 2022 Page 2 of 9 The defendant No.2 (petitioner in this revision) filed a petition on dated 03.02.2021 under Order 7, Rule 11 read with Section 151 of the CPC, 1908 in that suit vide C.S. No.209 of 2020 praying for rejection of the plaint of the plaintiffs (Opp. Party Nos.1 and 2) on the ground that, the suit is barred by res judicata, because, in the earlier suit and first appeal vide C.S. No.9110 of 2015 and R.F.A. No.26 of 2004 respectively, the properties of the present suit vide C.S. No.209 of 2020 were the subject matter in the earlier suit and first appeal vide C.S. No.9110 of 2015 and R.F.A. No.26 of 2004 respectively and the earlier suit vide C.S. No.9110 of 2015 was withdrawn as per Order 23, Rule 1 read with Section 151 of the CPC, 1908 passed by the order of the learned Civil Judge, Sr. Division, Bhubaneswar and R.F.A. No.26 of 2004 was decided by the learned ADJ, Nayagarh, for which, the present suit vide C.S. No.209 of 2020 for the self- same subject matter is not entertainable. Therefore, the plaint of the present suit vide C.S. No.209 of 2020 is liable to be rejected.
To which, the plaintiffs (Opp. Party Nos.1 and 2 in this revision) objected stating that, the suit vide C.S. No.9110 of CRP No.7 of 2022 Page 3 of 9 2015 before the learned Civil Judge, Sr. Division, Bhubaneswar was not for the same subject matter and the parties in the said suit were different from the present suit. The previous suit vide C.S. No.9110 of 2015 has not been adjudicated, but the same was withdrawn at the desire of the father of the plaintiffs and defendant No.1.
The matters involved in the present suit are required to be adjudicated as per law. The principles of res judicata is not applicable to the present suit vide C.S. No.209 of 2020. For which, as per law, the plaint cannot be rejected. Therefore, the petition under Order 7, Rule 11 read with Section 151 of the CPC, 1908 filed by the defendant No.2 for rejection of the plaint in the suit vide C.S. No.209 of 2020 is liable to be rejected.
3. After hearing from both the sides, the learned Trial Court rejected to the petition dated 03.02.2021 under Order 7, Rule 11 read with Section 151 of the CPC, 1908 of the defendant No.2 assigning the reasons that, "the entire subject matter, nature and parties of the earlier suit and appeal vide C.S. No.9110 of 2015 and R.F.A. No.26 of 2004 respectively CRP No.7 of 2022 Page 4 of 9 were not same with the present suit vide C.S. No.209 of 2020."
4. On being aggrieved with the said impugned order dated 31.01.2022 i.e. to the order of rejection to the petition under Order 7, Rule 11 read with Section 151 of the CPC, 1908 of the defendant No.2 passed in C.S. No.209 of 2020 by the learned Senior Civil Judge, Odagaon, he (defendant No.2) challenged the same by filing this Revision being the petitioner against the plaintiffs arraying them (plaintiffs) as Opp. Party Nos.1 and 2 and also arraying the defendant No.1 and defendant Nos.3 to 9 as proforma Opp. Parties.
5. I have already heard from the learned counsel for the petitioner (defendant No.2) and the learned counsel for the Opp. Party Nos.1 and 2 (plaintiffs), as none appeared on behalf of the other Opp. Parties (defendant Nos.1 and 3 to 9) for participating in the hearing of this Revision.
6. When after going through the averments made in the plaint of the plaintiffs and the Xerox copies of the documents and orders relating to the earlier suit and appeal vide C.S. No.9110 of 2015 and R.F.A. No.26 of 2004, the learned Trial Court has rejected to the petition dated 03.02.2021 under CRP No.7 of 2022 Page 5 of 9 Order 7, Rule 11 read with Section 151 of the CPC, 1908 of the defendant No.2 (petitioner in this Revision) through the impugned order dated 31.01.2022 assigning the reasons that, the subject matter, nature and parties in the earlier suit vide C.S. No.9110 of 2015 and R.F.A. No.26 of 2004 are not same with the present suit vide C.S. No.209 of 2020 and the matters involved in the present suit vide C.S. No.209 of 2020 are adjudiciable, then, at this juncture, the question of interfering with the impugned order through this Revision filed by the petitioner (defendant No.2) does not arise.
The conclusion drawn above finds support from the ratio of the following decisions:
I. In a case between Srihari Hanumandas Totala Vs. Hemant Vithal Kamat & Others reported in (2021) 9 SCC 99 that, plaint in subsequent suit cannot rejected on ground that it is barred by principles of res judicata as same will require production of pleadings, issues framed and judgment in previous suit, to compare it with present suit and that cannot be done for deciding an application under Order 7, Rule 11(d), as only the averments in the paint itself may be considered at this stage. The same can only be determined upon trial of the suit as CRP No.7 of 2022 Page 6 of 9 only the averments in the plaint itself may be considered at this stage.
II. In a case between Tek Chand & Another Vs. Kimtu Devi & Others reported in 2024 (3) Civ.C.C. 667 (HP) (DB) that, plaint cannot be rejected on a plea of Res Judicata raised by defendants, because, adjudication of plea of Res Judicata requires consideration of pleadings, issues and the decision in the previous suit, which cannot be done in an application under Order 7, Rule 11 of the CPC, 1908.
III. In a case between Shashi Kumar Prabhune & Others Vs. Dr. Sanjay Prabhune & Others reported in 2025 (4) Civ.C.C. 53 (Raj.) that, grounds of Res Judicata and cause of action would be decided after evidence of parties. Plaint cannot be rejected. (para No.7) IV. In a case between Smt. Omwati & Others Vs. Raghubar Singh Yadav & Others reported in 2021 (1) Civ.C.C. 22 (Allh.) that, any question which requires to be decided on the basis of evidence of parties, cannot be basis for rejecting a plaint. (Para No.17) V. In a case between Usha Rai & Another Vs. Sanskrit Pathsala Samiti, Pipariya reported in 2024 (3) Civ.L.J. 424 (MP) that, issue of "Res Judicata" is a mixed question of law and fact and should be decided after recording of evidence of parties.
7. When the petition dated 03.02.2021 of the petitioner (defendant No.2) under Order 7, Rule 11 read with Section CRP No.7 of 2022 Page 7 of 9 151 of the CPC, 1908 for rejection of the plaint of the plaintiffs on the ground of Res Judicata has been rejected by the learned Trial Court through the impugned order and when as per the ratio of the above decisions, the above ground raised by the defendant No.2 (petitioner in this revision) for rejection of plaint can be decided on the basis of the evidence of the parties, then, at this juncture, the ends of justice can bestly be served, if this revision filed by the petitioner (defendant No.2) shall be disposed of finally being dismissed by giving liberty to the defendant No.2 to raise the ground of Res Judicata in his written statement to be an issue along with other issues for its proper adjudication in the Judgment of the suit through proper appreciation of the materials, documents and evidence in the suit.
8. Therefore, this Revision filed by the petitioner (defendant No.2) is dismissed on contest with a liberty to the petitioner (defendant No.2) to raise the ground of Res Judicata along with other grounds in his written statement in the suit vide C.S. No.209 of 2020 for the dismissal of that suit of the plaintiffs to be decided being the issues in the said suit on the CRP No.7 of 2022 Page 8 of 9 basis of the pleadings and evidence of the parties including the petitioner (defendant No.2).
9. As such, this Revision filed by the petitioner (defendant No.2) is disposed of finally.
(ANANDA CHANDRA BEHERA) JUDGE High Court of Orissa, Cuttack The 31 .10. 2025// Rati Ranjan Nayak Sr. Stenographer Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 31-Oct-2025 19:24:13 CRP No.7 of 2022 Page 9 of 9