Madhya Pradesh High Court
M/S Siddi Vinayak Builders And ... vs M/S Jai Vinayak Infa Corporation Pvt. ... on 17 February, 2026
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
MISC. PETITION No. 2361 of 2024
M/S SIDDI VINAYAK BUILDERS AND DEVELOPERS THROUGH ITS
DIRECTOR VIKAS JAIN
Versus
M/S JAI VINAYAK INFA CORPORATION PVT. LTD. THROUGH ITS
DIRECTOR SHRI DEVENDRA GURJAR AND OTHERS
Appearance:
Shri Naveen Vaswani - Advocate (through VC) with ShriRuchir Jain -
Advocate for the petitioner.
Shri Harsh Gupta - Advocate for respondent No.1.
ORDER
(Reserved on:- 22.01.2026) (Pronounced on:- 17.02.2026) The present petition under Article 227 of the Constitution of India has been filed arising out of the order dated 16.04.2024 passed by the trial Court, whereby the trial Court has rejected an application of the petitioner under Order 14 Rule 2 CPC to the extent of issue No.3 framed by the trial Court, which relates to the question that whether the suit is barred by the principle of res- judicata enshrined under Section 11 of the Code of Civil Procedure.
2. The present petitioner/defendant No.8 is before this Court being aggrieved by the rejection of application under Order 14 Rule 2 CPC by the trial Court, whereby the trial Court has refused to decide the said issue as a preliminary issue by holding that the said issue needs trial, because it is a mixed Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 2/18/2026 10:33:32 AM 2 issue of law and fact, which can only be decided on merits after evidence alongwith other issues.
3. Learned counsel for the petitioner has vehemently argued that the additional issue No.5 relating to the question that whether the suit is barred by the principle of res-judicata in terms of Section 11 of the Code of Civil Procedure, though it may be a mixed issue of law and fact in usual cases, but in view of the peculiar circumstances of this case, the issue was not a mixed issue of law and fact and therefore, it could have been decided as a preliminary issue.
4. Counsel for the petitioner has argued that the present suit has been filed by the plaintiff and for the same assertions which the plaintiff asserts in the plaint and for the same relief and same right, which is asserted in the plaint, plaintiff had filed objections in execution case, which related to execution of the decree dated 23.08.2001 passed in RCSA No.46/2001 by the trial Court and the Executing Court had decided the objections of the plaintiff in detail vide order dated 11.07.2013 and rejected the said objections by considering the same assertions that are now being contended again in the fresh suit filed by the plaintiff and therefore, the fresh suit is barred by the principle of res-judicata. It is argued that though it may be required for the Court to go through the documents of the earlier suit, but the said issue does not require any evidence and only by perusal of the earlier order passed in the execution proceedings of earlier suit, the issue No.5 can be ascertained that whether the subsequent suit is Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 2/18/2026 10:33:32 AM 3 barred by the principle of res-judicata or not. On these assertions, it is prayed to set aside the impugned order passed by the trial Court and to direct the trial Court to decide issue No.5 as a preliminary issue.
5. Per contra, counsel for the respondent No.1/plaintiff has vehemently opposed the aforesaid assertions of the counsel for the petitioner and it is vehemently argued before this Court that the trial Court has rightly dealt with the application of the petitioner. It is contended that since evidence has started in the suit, therefore, now there is no utility to decide issue No.5 as a preliminary issue, which may or may not require any evidence, because in any event, evidence has started in the suit. Therefore, the respondent No.1/plaintiff prays for dismissal of the present petition.
6. Heard.
7. The present case relates to prayer of the petitioner-defendant No. 8 to try issue No.5 as a preliminary issue on the assertion that such issue does not require recording of any evidence and it can be decided by consideration of the documents on record. Order 14 Rule 2 (2) CPC provides that an issue can be tried as a preliminary issue if the issue relates to jurisdiction of the Court or bar to the suit created by any law for the time being in force, and the Court if it deems fit, can postpone decision of other issues until such issue dwelling on jurisdiction of the Court or bar to the suit is decided and determined and Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 2/18/2026 10:33:32 AM 4 thereafter the Court may proceed to decide other issues. Order 14 Rule 2 CPC is as under:-
"2. Court to pronounce judgment on all issues.--(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if the issue relates to--
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."
8. Earlier suit was filed by one Hidayat Ali from whom undisputedly, the present petitioner/defendant No.1 has acquired title by way of registered sale deed dated 11.12.2020. The said suit was filed against three defendants, namely,
i) Eknath, ii) Smt. Vimalwife of Eknath and iii) Samanvay Cooperative Housing Society. The trial Court had decided the saidsuit videjudgment and decree dated 23.08.2001 and the operative part of the decree is in five paragraphs, which is as under:-
"8 izekf.kr fd;k gS fd izfr- dza- 1 o 3 }kjk mlds Hkw[k.M dza- 44 fLFkr xzke [ktwjh dyk ij izfroknhx.k }kjk vukf/kd`r :i ls vfrpkjdj Hkou fuekZ.k dj fy;k gSA oknh izfroknh dz- 1 o 3 ls Hkw[k.M dz- 44 dk fjDr vf/kiR; izkIr djus dk vf/kdkjh gSA Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 2/18/2026 10:33:32 AM 5 1- oknh ds i{k esa izfroknh dzekad 1 o 3 ds fo:) bl vk'k; dh izfroknh dz- 1 o 3 Hkw[k.M dza- 44 ij fd;s x;s fuekZ.k dks Lo;a vius O;; ij gVkdj oknh dks fjDr vf/kiR; iznku djsaA 2- izfroknh dza- 1 o 3 ds fo:) bl vk'k; dh Hkh fu"ks/kkKk ikfjr dh tkrh gS fd fu.kZ; fnukad ls 3 ekg ds Hkhrj oknxzLr Hkw[k.M ls viuk fuekZ.k gVkdj okn dks mldk fjDr vkf/kiR; nsosA ;fn mDr vof/k esa izfr- dz-a 1 o 3 }kjk dCtk ugh fn;k tkrk gS rks oknh ml fuekZ.k dks gVkdj fjDr vkf/kiR; izkIr djus dk vf/kdkjh gksxkA ;fn izfroknh mDr fuekZ.k dks ugha gVkrs gS rks oknh mDr fuekZ.k dks vius O;; ij gVkysxk rFkk fuekZ.k gVkus ij vkus okyk O;; izfroknh dz- 1 o 3 ls olwy fd;k tkosxkA 3- oknh ds i{k esa rFkkizfroknh dza- 1 o 3 ds fo:) ;g Hkh ?kksf"kr fd;k tkrk gS fd muds fo:) fd;k x;k fuekZ.k Hkw[k.M dza- 47 ij ugha gSA 4- oknh viuk okn O;; Lo;a ogu djsxk rFkk izfroknh viuk okn O;; Lo;a ogu djsxkA 5- vfHkHkk"kd 'kqYd lwph vuqlkj yxk;s tkus ij izekf.kr fd;k tkosA""
9. For the purpose of present petition, the third direction as per the decree is relevant, whereby the trial Court had declared that the construction made by the plaintiff is not on plot No.47.
10. The plaintiff claims to have acquired title by way of sale deed executed by the defendant of that suit, namely, Eknath and his wife Smt. Vimal and the sale in favour of the plaintiff has taken place on 26.10.2012, which is after passing of the decree, but before execution of the decree and before deciding the objections of the plaintiff in the execution proceedings.
11. In the execution proceedings, the proceedings of possession took place in June, 2013 and the plaintiff of this case submitted an application under Order 21 Rule 99 CPC read with Section 151 CPC, which was filed in July 2013.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 2/18/2026 10:33:32 AM 6
12. In the said application, it was asserted by the plaintiff of this case that on 30.06.2013, he has been erroneously dispossessed from the building and he should be allowed to re-enter the suit property from which he has been dispossessed on 30.06.2013.The ExecutingCourt held that there is a clear finding of the trial Court that the defendants No.1 to 3 of the earlier suit have encroached upon plot No.44 and further declaration has been given that construction of the plaintiff is not on plot No.47 of the defendants No.1 to 3 and the objector who is the plaintiff in the subsequent suit, has purchased plot No.47 on 26.10.2012, which is after passing of the decree and there is already finding of the trial Court in the year 2008 that the construction of plaintiff is not on plot No.47. Therefore, the trial Court rejected the objections of the plaintiff of this case, which were filed under Order 21 Rule 99 CPC as baseless and by holding him to be a purchaser after passing of the decree.
13. The subsequent suit has been filed on the assertion that though the application of the plaintiff under Order 21 Rule 99 CPC was rejected by the Executing Court on 11.07.2013, but the actual possession remained that of the plaintiff. This Court notes that in the order of the Executing Court dated 11.07.2013, which is on record, it was pleaded by the plaintiff of this case, who was objector before the Executing Court, that he has been dispossessed on 30.06.2013.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 2/18/2026 10:33:32 AM 7
14. It has been held by the Hon'ble Supreme Court in the case of Sathyanath v. Sarojamani, (2022) 7 SCC 644 that plea of res-judicata cannot be decided as a preliminary issue when it raises mixed issue of law and fact, or there are disputed question of fact and it can be determined as preliminary issue, only when it raises neither a disputed question of fact nor a mixed question of law and fact. It has been held by the Hon'ble Supreme Court that the plea of res-judicata may be determined as preliminary issue only when it is neither a disputed question of fact nor a mixed question of law and fact. The Hon'ble Supreme Court has held as under:-
"32. A perusal of the said judgment would show that only Issues 5 and 6 were decided relating to res-judicata and limitation as preliminary issues by judgment dated 3-2-2006. This Court set aside the finding on the preliminary issue by judgment dated 23- 9-2021 [Jamia Masjid v. K.V. Rudrappa, (2022) 9 SCC 225 :
2021 SCC OnLine SC 792] i.e. almost more than 15 years later when the matter was remanded back to the trial court. The absence of the decision on all issues has necessitated the matter to be remanded back, defeating the object of expeditious disposal of lis between the parties. The conclusion in para 66.1 in Jamia Masjid case [Jamia Masjid v. K.V. Rudrappa, (2022) 9 SCC 225 : 2021 SCC OnLine SC 792] is that the plea of res-judicata in appropriate cases may be determined as preliminary issue when it is neither a disputed question of fact nor a mixed question of law and fact. Such finding is what this Court held in Ramesh B. Desai [Ramesh B. Desai v. BipinVadilal Mehta, (2006) 5 SCC 638] ."
15. The Hon'ble Supreme Court considered the judgment of the Hon'ble Supreme Court in the case of Jamia Masjid vs. K.V. Rudrappa, (2022) 9 SCC 225, wherein it was held as under:-
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 2/18/2026 10:33:32 AM 8
"26. The court while undertaking an analysis of the applicability of the plea of res-judicata determines first, if the requirements of Section 11CPC are fulfilled; and if this is answered in the affirmative, it will have to be determined if there has been any material alteration in law or facts since the first suit was decreed as a result of which the principle of res-judicata would be inapplicable.
xx xx xx
66. In view of the discussion above, we summarise our findings below:
66.1. Issues that arise in a subsequent suit may either be questions of fact or of law or mixed questions of law and fact. An alteration in the circumstances after the decision in the first suit, will require a trial for the determination of the plea of res-judicata if there arises a new fact which has to be proved. However, the plea of res-
judicata may in an appropriate case be determined as a preliminary issue when neither a disputed question of fact nor a mixed question of law or fact has to be adjudicated for resolving it.
66.2. While deciding on a scheme for administration in a representative suit filed under Section 92CPC the court may, if the title is contested, have to decide if the property in respect of which the scheme for administration and management is sought belongs to the trust.
66.3. A suit under Section 92CPC is of a representative character and all persons interested in the trust would be bound by the judgment in the suit, and persons interested would be barred by the principle of res-judicata from instituting a subsequent suit on the same or substantially the same issue.
66.4. Since the first suit (OS No. 92 of 1950-51) was filed by members interested in the Jamia Masjid and the suit out of which the instant proceedings arise (OS No. 149 of 1998) was filed by the President of Jamia Masjid, the formulation in para 66.3 above is satisfied.
66.5. There was no adjudication in the first suit (OS No. 92 of 1950-51) on whether Abdul Khuddus had absolute title to the suit property. There was only a prima facie determination that Items 2 and 3 of the schedule of properties to the first suit belonged to Abdul Khuddus. The matters substantially in issue in OS No. 92 of 1950-51, which was a suit for administration and management of trust properties and for accounts, are distinct from the issues in the suit out of which the instant proceedings arise. Therefore, OS No. Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 2/18/2026 10:33:32 AM 9 149 of 1998 is not barred by res-judicata in view of the decision in the first suit.
66.6. While a compromise decree in a prior suit will not bar a subsequent suit by virtue of res-judicata, the subsequent suit could be barred by estoppel by conduct. However, neither the compromise petition dated 27-10-1969 nor the final decree in the second suit dated 27-10-1969 indicate that a compromise on the title to the suit property was arrived at. The compromise was restricted to the issue of the erstwhile lessee handing over possession of the suit property at the end of the lease. 66.7. The third suit (OS No. 100 of 1983) was a suit for an injunction simpliciter. The third suit was withdrawn after the suit out of which the instant proceeding arises was filed for seeking a substantive declaration and an injunction. No adjudication on the rights of the parties was made in the third suit."
(Emphasis supplied)
16. The Hon'ble Supreme Court had further considered the judgment of Hon'ble Apex Court in the case of Ramesh B. Desai vs. BipinVadilal Mehta, (2006) 5 SCC 638, wherein the Hon'ble Supreme Court held that only those issues of law can be decided as preliminary issues, which fall within the ambit of Clause (a) & (b) of Order 14 Rule 2(2) of C.P.C.
17. The Hon'ble Supreme Court recently in the case of Keshav Sood vs. Kirti Pradeep Sood and others 2023 SCC OnLine SC 2459 has held that plaint cannot be rejected under Order 7 Rule 11 C.P.C. on plea of res-judicata. Very recently in the case of Pandurangan vs. T. JayaramaChettiar and another (2025) 10 SCC 279, the Hon'ble Supreme Court has held that plea of res- judicata cannot be decided in an application under Order 7 Rule 11 C.P.C. filed for rejection of the plaint, because the defence of the defendant and documents relied by the defendants cannot be looked into while deciding the application. Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 2/18/2026 10:33:32 AM 10
18. However, the present case invokes Order 14 rule 2 (2). In the present case, looking to the aforesaid facts as discussed above, it does not appear to this Court that the plea of res-judicata can be decided only after recording of evidence, because it does not appear to this Court to be a mixed question of law and fact. The petitioner can raise the plea of res-judicata, because the decision of objections under Order 21 Rule 99 C.P.C. would have the effect of decree in terms of Order 21 Rule 103 C.P.C.
19. Therefore, this Court is of the considered opinion that the issue relating to the suit being barred by res-judicata can be decided as a preliminary issue as it does not require any evidence and learned counsel for the respondent No.1 plaintiff also could not point out to anything that how decision of the said issue requires evidence, and to this extent, was not in position to controvert the arguments of learned counsel for the petitioner.
20. Consequently, the impugned order passed by the trial Court is set aside. The trial Court is directed to decide issue relating to plea of res-judicata as preliminary issue.
21. With the aforesaid directions, the petition stands allowed.
(VIVEK JAIN) JUDGE rj Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 2/18/2026 10:33:32 AM