Punjab-Haryana High Court
Som Nath vs Jaspal Kaur And Ors on 9 September, 2024
Neutral Citation No:=2024:PHHC:119727
SAO No.5 of 2022 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
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SAO No.5 of 2022 (O&M)
Reserved on: 28.08.2024
Pronounced on: 09.09.2024
Som Nath .....Appellant
Vs.
Jaspal Kaur and others .....Respondents
CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA
Present:- Mr. Vaibhav Sehgal, Advocate for the appellant.
Mr. Rajat Malhotra, Advocate for respondent No.1.
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DEEPAK GUPTA, J.
In civil suit N: 20 of 2014, an applica&on under Order 7 Rule 11 CPC for rejec&on of the plaint, moved by the defendant No. 6- Som Nath (appellant herein), was accepted by Ld. Civil Judge (Jr Divn), Ludhiana vide order dated 09.09.2016. However, the appeal (CA N: 88 of 2017) filed by plain&ff - Jaspal Kaur (respondent No.1 herein), has been allowed by the Ld. Addl. District Judge, Ludhiana, by way of the impugned order dated 09.12.2021, thus, dismissing the applica&on under Order 7 Rule 11 CPC. It is against this reversal that defendant N: 6 of the suit has approached this Court by filing the present second appeal against order.
2. The facts of the case in brief are as under:-
2.1 In the suit filed by plain&ff - Jaspal Kaur (respondent No.1), it was claimed that she was the owner in possession of the suit property detailed in head note of the plaint; that her father Gurdial Singh had purchased the property in dispute from defendant No.1 Balwant Singh (respondent No.2 herein) and had paid the en&re sale considera&on.
However, her father had gone to Amarnath Yatra and did not return, due to Page No.1 out of 30 pages 1 of 30 ::: Downloaded on - 22-09-2024 05:28:03 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) which, defendant No.1 through defendant No.2 Harchand (respondent No.3 herein) executed and got registered sale deed bearing Vasika No.2369 dated 19.09.1995 of the property in ques&on in favour of the plain&ff. However, inadvertently, the name of the vendee was men&oned as Makhan Singh son of Gurdial Singh, instead of Jaspal Kaur wife of Makhan Singh. Taking undue advantage of this wrong entry in the sale deed and in the revenue record, defendant No.3 - Makhan Singh (respondent No.4 herein) started threatening the plain&ff to dispose of the property to somebody else. Plain&ff requested the defendants No.1 and 2 to get the sale deed corrected by incorpora&ng her name but they refused. Plain&ff further pleaded that cause of ac&on in her favour arose, when her name was wrongly not men&oned in the sale deed and also later on, when defendants refused to get corrected the sale deed to incorporate her name as vendee of the suit property. This suit was filed by the plain&ff on 15.07.2014 seeking necessary declara&on.
2.2 Som Nath (present appellant), who was not impleaded as a defendant to the suit, moved an applica&on under Order 1 Rule 10 CPC to implead him as a party. His applica&on was allowed vide order dated 15.12.2014 (Annexure P5) and then he was impleaded as defendant N: 6.
2.3.1 He (Somnath) then moved an applica&on under Order 7 Rule 11 CPC (Annexure P6) for rejec&ng the plaint, by pleading that suit had been filed in collusion with defendants No.1 to 3 and by concealing the material facts from the Court. Defendant No.3 - Makhan Singh was none else than the husband of the plain&ff, who being the owner in possession of the suit property, had entered into an agreement to sell dated 02.08.1997 with the applicant- defendant- Som Nath. As said Makhan Singh failed to perform his part of contract, Civil suit No.270 of 1998 for possession by way of specific performance was filed by said applicant. ADer hotly contes&ng, the suit was decreed on 10.08.2009 vide judgment Annexure P1. In the execu&on filed by the applicant - decree holder of Civil Suit No.270 of 1998, sale deed bearing Vasika No.24945 dated 11.03. 2013 was executed and Page No.2 out of 30 pages 2 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) registered in his favour and warrant of possession was issued. Police help was ordered to be provided for delivering the possession, when the applicant along with other family members started crea&ng hindrance in delivering the possession.
2.3.2 Applicant- defendant No. 6- Som Nath further pleaded that earlier plain&ff had filed a Civil Suit No.308 dated 15.12.1998, against defendants No. 2 and 3 [Harchand Singh and Makhan Singh], in which, the present applicant was not impleaded as a party and, therefore, his applica&on under Order 1 Rule 10 CPC to be impleaded as a party was accepted. In that suit filed in 1998 by plain&ff- Jaspal Kaur, defendant - applicant had specifically pleaded about the agreement to sell in his favour but s&ll no ac&on was taken by the plain&ff at that &me. That suit was also hotly contested and ul&mately, the same was dismissed on 09.11.2009 vide judgment Annexure P3. No appeal was filed against that judgment and thus, it aGained finality.
2.3.3 It was further pleaded in the applica&on under Order 7 Rule 11 CPC that in the above circumstances, the present suit was barred by law, as maGer in controversy raised in the present suit was directly and substan&ally in issue in the earlier suit and had already been set at rest in the earlier li&ga&on vide judgment & decree dated 09.11.2009 Annexure P3 and, therefore, that decision was binding upon the plain&ff.
2.4 In reply to the above applica&on, plain&ff did not specifically deny the filing of the previous suit and the dismissal thereof. However, she prayed for dismissal of the applica&on.
3. Learned Civil Judge (Junior Division) Ludhiana, vide order dated 09.09.2016 accepted the applica&on of the appellant- defendant under Order 7 Rule 11 CPC on the ground that the suit was barred by the principle of res-judicata as contained in Sec&on 11 CPC and further held that the suit had been filed with a mo&ve to frustrate the execu&on pe&&on. The applica&on was accordingly allowed and the plaint was ordered to be Page No.3 out of 30 pages 3 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) rejected.
4. However, the appeal filed by the plain&ff- Jaspal Kaur against the aforesaid order, was allowed by the Appellate Court of learned Addi&onal District Judge, Ludhiana vide impugned order dated 09.12.2021. Learned Addi&onal District Judge referred to the provisions of Order 7 Rule 11 CPC and observed that at the &me of deciding an applica&on under Order 7 Rule 11 CPC, the Court was required to look into the averments of the plaint only and not the averments of the wriGen statement. It was observed further that in the present case, the reading of the plaint did not reveal any such material, by which it could be stated that suit was barred by any law. Learned Addi&onal District Judge referred to S.S. Ahluwalia Vs. S.P.S. Ahluwalia, 2012 (4) RCR (Civil) 140 and Srihari Hanumandas Totala Vs. Hemant Vithal Kamat & Ors., Civil Appeal No.4665 of 2021 decided by Hon'ble Supreme Court on 09.08.2021. Thus, accep&ng the appeal, it was held that applica&on under Order 7 Rule 11 CPC could not be allowed and plaint could not be rejected at this stage.
Conten7ons of the appellant:
5.1 Assailing the afore-said order by way of present appeal, it is contended by Ld. counsel for the appellant- defendant Somnath that the suit was clearly barred under Order 21 CPC, as whatever objec&ons the plain&ff had, the same could have been decided under Order 21 Rule 101 CPC, as all the ques&ons rela&ng to rights, &tle or interests in the property arising between the par&es out of the proceedings raised by the third party can be disposed of by the Execu&ng Court and not by a separate suit. It is pointed out by learned counsel that in the execu&on filed by the appellant, objec&ons were in fact filed by the plain&ff, on the same ground that sale deed dated 19.09.1995 was wrongly executed in favour of her husband Makhan Singh and that the sale deed was required to be registered in her name. However, those objec&ons were dismissed by the trial Court on 16.04.2015 vide Annexure P2 by holding that Jaspal Kaur i.e. plain&ff was Page No.4 out of 30 pages 4 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) not the owner of the suit property.
5.2 It is argued that not only above, even the earlier suit filed by the plain&ff way back in 1998 was also dismissed in 2009 vide Annexure P3.
Learned Appellate Court failed to observe that issues involved in the present suit are the same as already adjudicated upon by the trial Court not only in Civil Suit No.308 of 1998, dismissed on 09.11.2009 but also in the execu&on filed by the defendant- appellant.
5.3 Learned counsel further contends that the present suit is even barred under the law of limita&on, inasmuch as the sale deed of 1995 has been challenged by the plain&ff in 2014.
5.4 It is also the conten&on of ld. counsel that a li&gant, who is dishonest and has approached the Court with concealment of the material facts, cannot be given any advantage by the Court.
5.5 In order to support his conten&on, counsel for the appellant has relied upon the following authori&es:-
i. T. Arivandandam Vs. T.V. Satyapal, 1978 RLR 17;
ii. Sameer Singh and another Vs. Abdul Rab and others, 2015(1) ALT 27;
iii. Yogesh Maini Vs. State of Punjab and others, CWP-12476-2020 (O&M) decided on 21.09.2020;
iv. Holy Health and Educa8onal Society (Regd.) Vs. Delhi Development Authority, 1993) R.C.R. (Civil) 531;
v. K.K. Modi Vs. K.N. Modi and others, 1998(3) SCC 573;
vi. T. Palanisamy Gounder Vs. Sankara Ramanathan and others 2000(2) MLJ 656;
vii. Surender Mohan (deceased) by LR Vs. Baldev Singh and others, 2019 (3) Law Herald (P&H) 2241; and viii. N. Babu Vs. S. Shanmugam and others, 2012(51) R.C.R. (Civil) 206 5.6 With all the above submissions, prayer is made for seLng aside Page No.5 out of 30 pages 5 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) the impugned order passed by learned Addi&onal District Judge, Ludhiana and to restore the order of the trial Court, whereby the plaint was rejected by accep&ng the applica&on under Order 7 Rule 11 CPC.
Conten7ons of the respondent:
6. Refu&ng all the afore-said conten&ons, it is contended by learned counsel for the plain&ff- respondent that learned Appellate Court has rightly allowed the appeal by rejec&ng the applica&on under Order 7 Rule 11 CPC, as the plea of res-judicata cannot be considered at this stage and for that reason, plaint cannot be rejected. Learned counsel has referred to Srihari Hanumandas Totala Vs. Hemant Vithal Kamat & Ors. (supra) and S.S. Ahluwalia Vs. S.P.S. Ahluwalia, 2012 (4) RCR (Civil) 140 (supra).
7. This Court has considered submissions of both the sides and have appraised the en&re record thoroughly and carefully.
8. On perusal of the paper book and hearing both the sides, the facts in chronological order emerge as under:
x Makhan Singh is the owner of the suit property by virtue of a registered sale deed dated 19.09.1995.
x Said Makhan Singh executed an agreement to sell dated 02.08.1997 so as to sell the suit property to Somnath (present appellant).
x Based upon the agreement to sell dated 02.08.1997, Som Nath filed Civil Suit No.270 on 03.08.1998 against Makhan Singh seeking specific performance of agreement and possession of the suit property.
x ADer approximately four months, i.e. on 15.12.1998, Jaspal Kaur, the wife of Makhan Singh, filed separate suit No.308 of 1998, claiming to be owner of the suit property. This suit was filed against her husband
- Makhan Singh; and one Harchand Singh Grewal, without Page No.6 out of 30 pages 6 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) impleading Som Nath as a party. On an applica&on moved under Order 1 Rule 10 CPC, Som Nath was impleaded as defendant No.3 in that suit, who in his wriGen statement referred about the agreement to sell dated 02.08.1997 in his favour executed by Makhan Singh. He further pleaded that it is Makhan Singh, who was owner in possession of the suit property on the dint of sale deed dated 19.09.1995. Said suit filed by Jaspal Kaur was dismissed on
09.11.2009 by specifically holding that it is Makhan Singh, who was the true owner of the suit property on the basis of sale deed dated 19.09.1995 and that he had entered into the agreement to sell the same with Som Nath. No appeal against this judgment and decree dated 09.11.2009 (Annexure P3) was filed by Jaspal Kaur.
x On the other hand, Civil Suit No.270 of 1998 filed by Som Nath for specific performance was decreed on 10.08.2009.
x In the execu&on filed by Somnath on 24.10.2009, sale deed in his favour was executed on 11.03.2013 pursuant to the order of the Court and warrants of possession was directed to be issued.
x As the judgment debtor- Makhan Singh, his wife Jaspal Kaur (plain&ff of present suit N: 20 of 2014) and other family members created hindrance in delivery of the possession, the Execu&ng Court directed for providing police help for delivering the possession.
x However, it is at this stage that during pendency of the execu&on, present Civil Suit No.20 of 2014 was filed by Jaspal Kaur on 15.07.2014 again on the ground that she is the owner in possession of the suit property on the basis of sale deed dated 19.09.1995 and that name of Makhan Singh was wrongly incorporated in the sale deed.
x It is very important to no&ce at this stage itself that in the said suit, Jaspal Kaur did not make even a whisper about the earlier suit Page No.7 out of 30 pages 7 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) No.308 of 1998 filed by her on the same cause, which had been dismissed on 09.11.2009.
x In this suit filed on 15.07.2014 also, Jaspal Kaur did not implead Somnath as a party and rather, the said suit was filed against Makhan Singh, Balwant Singh, Harchand Singh and two others. As Som Nath came to know about this suit, he filed applica&on under Order 1 Rule 10 CPC, which was allowed on 15.12.2014 (vide Annexure P5) and then he moved the applica&on under Order 7 Rule 11 CPC by disclosing the factum regarding the earlier li&ga&on.
Court analysis:
9. With above factual background facts, let us take note of Order 7 Rule 11 CPC, which reads as under:-
"11. Rejec7on of plaint.-- The plaint shall be rejected in the following cases:
--
(a) where it does not disclose a cause of ac&on;
(b) where the relief claimed is undervalued, and the plain&ff, on being required by the Court to correct the valua&on within a &me to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is wriGen upon paper insufficiently stamped, and the plain&ff, on being required by the Court to supply the requisite stamp-paper within a &me 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 plain&ff fails to comply with the provisions of rule 9:
Provided that the &me fixed by the Court for the correc&on of the valua&on or supplying of the requisite stamp-paper shall not be Page No.8 out of 30 pages 8 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) extended unless the Court, for reasons to be recorded, is sa&sfied that the plain&ff was prevented by any cause of an excep&onal nature from correc&ng the valua&on or supplying the requisite stamp-paper, as the case may be, within the &me fixed by the Court and that refusal to extend such &me would cause grave injus&ce to the plain&ff."
10. As the above provision would reveal that when the plaint is sought to be rejected under Clause (d) of Rule 11 of Order 7 CPC, only this much is to be seen that from the statement in the plaint, the suit is barred by any law. Meaning thereby, at the &me of considering the ques&on as to whether the plaint should be rejected under Clause (d), apart from the averments made in the plaint, no conten&on of the defendant or the averment made by him in the applica&on under Order 7 Rule 11 CPC can be considered.
(A) Rejec+on of plaint on ground of res-judicata (when there is no concealment of facts) -
11.1 The legal posi&on regarding under Clause (d) of Order 7 Rule 11 CPC and par&cularly when the plaint is sought to be rejected on the ground of res-judicata, was considered by Hon'ble Supreme Court in Srihari Hanumandas Totala Vs. Hemant Vithal Kamat & Ors.(supra).
11.2 In that case i.e., Srihari Hanumandas Totala (supra), the facts were that one Leela Vithal Kamat, was the &tle holder of the suit property. On her death, the property was mutated in the name of her two legal heirs. Said legal heirs allegedly took a loan from Karnataka State Finance Corpora&on (KSFC) and mortgaged the suit property as security for repayment of the loan. As loan was not repaid, KSFC auc&oned the property. Sale deed dated 8.8.2006 was executed in favour of the highest bidder, i.e. auc&on purchaser. However, possession was not delivered to him and, therefore, he filed the Civil Suit for delivery of possession on various grounds. In the said suit, one of the legal heirs of Leela Vithal Kamat, filed the wriGen statement alleging that KFSC had no authority to Page No.9 out of 30 pages 9 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) put the property to sale; that he had not taken any loan from KFSC nor had any transac&on with it and that he had no concern with the borrower. Issue was framed in this suit filed by auc&on purchaser to the effect as the 'whether KFSC had no authority to put the suit property for sale?' 11.3 Said legal heir also filed an independent suit challenging the sale deed dated 08.08.2006 in favour of the auc&on purchaser. He also sought par&&on of the suit property and possession of his share. His conten&on was the same to the effect that aDer the death of his mother, suit property was inherited by him and his brother; that it is his brother, who had mortgaged the suit property with KFSC without his consent and that KFSC without inves&ga&ng the &tle and verifying the &tle documents, had accepted the suit property as security and that he was not bound by the said mortgage.
11.4 The suit filed by the auc&on purchaser was decreed, against which the second brother who claimed to have not taken the loan, filed the appeal. On the other hand, the auc&on purchaser moved an applica&on under Sec&on 10 CPC in the second suit filed by abovesaid second brother, on the ground that issues involved in both the cases were directly and substan&ally the same. The trial Judge allowed the applica&on and the proceedings in the subsequent suit were accordingly stayed, against which the said brother who had alleged to have not taken the loan, filed appeal before the High Court. The decree of the previous suit as filed by auc&on purchaser was upheld by the High Court. ThereaDer, the auc&on purchaser moved an applica&on under Order 7 Rule 11 CPC in the second suit for rejec&on of the plaint. That applica&on was dismissed by the trial Judge and the order was upheld in revision by the High Court.
11.5 It is against the above rejec&on of applica&on under Order 7 Rule 11 CPC that the auc&on purchaser/ his successor-in-interest filed the appeal before the Hon'ble Supreme Court.
11.6 Hon'ble Supreme Court, aDer referring to the provisions of Page No.10 out of 30 pages 10 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) Order 7 Rule 11 CPC held as under:-
"16 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 applica&on 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 wriGen statement in the case. Before proceeding to refer to precedents on the interpreta&on of Order 7 Rule 11(d) CPC, we find it impera&ve to refer to Sec&on 11 of CPC, which defines res judicata:
"11. Res judicata.--No Court shall try any suit or issue in which the maGer directly and substan&ally in issue has been directly and substan&ally in issue in a former suit between the same par&es, or between par&es under whom they or any of them claim, li&ga&ng under the same &tle, 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."
17. Sec&on 11 of the CPC enunciates the rule of res judicata : a court shall not try any suit or issue in which the maGer that is directly in issue has been directly or indirectly heard and decided in a 'former suit'. Therefore, for the purpose of adjudica&ng 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 adjudica&ng on res judicata, before referring to res judicata as a ground for rejec&on of the plaint under Order 7 Rule 11. Jus&ce R C Laho& (as the learned Chief Jus&ce 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 par&culars 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 adjudica&ng on the plea of res judicata:
Page No.11 out of 30 pages 11 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) "11. The rule of res judicata does not strike at the root of the jurisdic&on 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 li&ga&on and no one should be vexed twice for the same cause.
13. Not only the plea has to be taken, it has to be substan&ated by producing the copies of the pleadings, issues and judgment in the previous case. Maybe, in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaus&ve 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 ques&on of res judicata is first to determine the case of the par&es as put forward in their respec&ve 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 allega&ons made in the pleadings men&oned in the judgment. The Cons&tu&on 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 iden&ty of the cause of ac&on in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of ac&on in the previous suit. Such pleas cannot be leD to be determined by mere specula&on or inferring by a process of deduc&on 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 maGers in issue in the previous suit and what was heard and decided. Needless to say, Page No.12 out of 30 pages 12 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit."
(emphasis supplied)
18. At this stage, it would be necessary to refer to the decisions that par&cularly deal with the ques&on whether res judicata can be the basis or ground for rejec&on of the plaint. In Kamala & others v. KT Eshwara Sa, (2008) 12 SCC 661, the Trial Judge had allowed an applica&on for rejec&on of the plaint in a suit for par&&on and this was affirmed by the High Court. Jus&ce 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 applica&on. 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 applica&on for rejec&on 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 addi&on or subtrac&on. Absence of jurisdic&on 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 maGer which may arise between the par&es would not be within the realm of the court at that stage. All issues shall not be the subject-maGer of an order under the said provision."
(emphasis supplied) The Court further held:
Page No.13 out of 30 pages 13 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) "23. The principles of res judicata, when aGracted, would bar another suit in view of Sec&on 12 of the Code. The ques&on involving a mixed ques&on of law and fact which may require not only examina&on 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 ques&on 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 ac&on, but it is another thing to say that although the same discloses a cause of ac&on, 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 ques&on of fact or law. In the event, the jurisdic&on of the court is found to be barred by any law, meaning thereby, the subject-maGer thereof, the applica&on for rejec&on of plaint should be entertained."
(emphasis supplied) The above view has been consistently followed in a line of decisions of this Court.
11.7 Hon'ble Supreme Court, aDer referring to various other precedents on the subject, concluded as under:
20. On a perusal of the above authori&es, the guiding principles for deciding an applica&on 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 applica&on;
Page No.14 out of 30 pages 14 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M)
(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 substan&ally in issue in the former suit; (iii) the former suit was between the same par&es or par&es through whom they claim, li&ga&ng under the same &tle; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and
(iv) Since an adjudica&on of the plea of res judicata requires considera&on 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."
11.8 ADer considering the factual and legal posi&on of the case before Hon'ble Supreme Court, it was then held as under:
"21. In the present case, a meaningful reading of the plaint makes it abundantly clear that when the first respondent ins&tuted the subsequent suit, he had been impleaded as the second defendant to the earlier suit (OS No. 103/2007) that was ins&tuted on 13 March 2007. The first respondent ins&tuted the subsequent suit, OS 138/2008 though he had knowledge of the earlier suit. The plaint in the subsequent suit which was ins&tuted by the first respondent indicates that he was aware of the mortgage executed in favour of KSFC, that KSFC had executed its charge by selling the property for the recovery of its dues and that the property had been sold on 8 August 2006 in favour of the predecessor of the appellant. As a maGer of fact, the plaint contains an averment that there was every possibility that the first respondent may suffer a decree for possession in OS 103/2007 which "has forced" the first respondent to ins&tute the suit for challenging the legality of the sale deed. Given the fact that an argument was raised in the previous suit regarding no challenge having been made to the auc&on and the subsequent sale deed executed by the KFSC, it is possible that the first respondent then decided to exercise his rights and filed the subsequent suit. Be that as it may, on a reading of the plaint, it is evident that the first respondent has not made an aGempt to conceal the fact that a suit regarding the property was pending before the civil court at the &me. It is also relevant to note that at the &me of ins&tu&on of the suit (OS No. 138/2008) by the first respondent, no decree Page No.15 out of 30 pages 15 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) had been passed by the civil court in OS No. 103/2007. Thus, the issues raised in OS No. 103/2007, at the &me, had not been adjudicated upon. Therefore, the plaint, on the face of it, does not disclose any fact that may lead us to the conclusion that it deserves to be rejected on the ground that it is barred by principles of res judicata. The High Court and the Trial Court were correct in their approach in holding, that to decide on the arguments raised by the appellant, the court would have to go beyond the averments in the plaint, and peruse the pleadings, and judgment and decree in OS No. 103/2007. An applica&on under Order 7 Rule 11 must be decided within the four corners of the plaint. The Trial court and High Court were correct in rejec&ng the applica&on under order 7 Rule 11(d)."
12. Two material facts are required to be noted from the afore-said observa&ons and findings of the Hon'ble Supreme Court to the effect that in the subsequent suit, the plain&ff had not concealed any fact regarding the earlier suit. He had disclosed everything about the previous suit and the wriGen statement filed by him and also the mortgage deed executed by his brother on the basis of which the earlier suit had been decreed. Secondly, it was observed by the Hon'ble Supreme Court that at the &me, when the second suit was filed, the earlier suit had not been decided and so, the principle of res-judicata was not applicable.
13. It is in the light of the afore-said dis&nguishable facts that it is required to be seen, as to whether the principles laid down Srihari Hanumandas Totala (supra) as above, are applicable to the facts of the present case or not.
(B) Whether plaint is to be rejected on ground of res-judicata (when there is concealment of material facts) -
14. In the present case, as has already been noted that earlier Civil Suit No.308 of 1998 filed by plain&ff- Jaspal Kaur was dismissed by the trial Court on 09.11.2009 and that decree had aGained finality, as no appeal was filed against it. In the said judgment, it was specifically held that it is Makhan Singh, the husband of the plain&ff, who was the owner of the Page No.16 out of 30 pages 16 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) property and who had executed an agreement to sell in favour of Somnath and thus, Jaspal Kaur was held to be not the owner of the suit property.
15. In the present suit filed in 2014, plain&ff- Jaspal Kaur did not even make a whisper about the earlier ins&tuted suit filed by her and the dismissal thereof.
16. The ques&on is as to whether in the afore-said facts and circumstances, plain&ff should be given any advantage or premium for the concealment of the material facts from this Court. In other words, whether the court should extend its helping hand to a dishonest li&gant, who approaches the court by concealing material facts. Thus, court is also confronted with a ques&on in these circumstances. On one hand, there is a li&gant, who approaches the court and discloses each and every fact about the previous li&ga&on and result thereof, in his subsequent suit. On the other hand, there is another li&gant, who in his subsequent suit, has concealed every fact regarding the previous li&ga&on and the result thereof, and thus, is guilty of the concealment of the material fact. Whether the court should side with such a dishonest li&gant.
17. If the conten&on of Ld. counsel for the respondent is accepted and the reasoning given by the First Appellate Court is allowed, it would mean that in the case of first li&gant, who has disclosed everything honestly before the Court, his plaint would be liable to be rejected on the ground of res-judicata, as the same issue had already been decided; whereas on the other hand, in the case of dishonest li&gant of the second instance (such as the present case), since he has not disclosed anything about the previous li&ga&on, then his plaint cannot be rejected, as only the averments of the plaint are to be considered and the court cannot know about previous li&ga&on from the plaint.
18. This Court is of the clear view that no premium or advantage can be given to a dishonest li&gant, who comes to the Court by concealing all the material facts from the Court. Rather, such a li&gant should be Page No.17 out of 30 pages 17 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) thrown out of the Court with heavy costs so as to deter him to approach the Court again with the vexa&ous li&ga&on.
19.1 In this regard, it is necessary to no&ce the provisions of Order 7 Rule 1 CPC which read as under:-
"1. Par+culars to be contained in plaint. -The plaint shall contain the following par8culars:-
(a) the name of the Court in which the suit is brought;
(b) the name, descrip8on and place of residence of the plain8ff;
(c) the name, descrip8on and place of residence of the defendant, so far as they can be ascertained;
(d) where the plain8ff or the defendant is a minor or a person of unsound mind, a statement to that effect;
(e) the facts cons8tu8ng the cause of ac8on and when it arose;
(f) the facts showing that the Court has jurisdic8on;
(g) the relief which the plain8ff claims;
(h) where the plain8ff has allowed a set-off or relinquished a por8on of his claim, the amount so allowed or relinquished; and
(i) a statement of the value of the subject-maHer of the suit for the purposes of jurisdic8on and of court fees, so far as the case admit."
19.2 Apart from the above par&culars, which are required to be men&oned in the plaint, clause (j) was also inserted by Punjab, Haryana and Chandigarh by way of a no&fica&on No. G.S.R. 17/C.S. 5/1908/S.122/78, dated 15.03.1991, which is to the following effect:-
"(j) A statement to the effect that no suit between the same par+es, or between par+es under whom they or any of them claim, li+ga+ng on the same grounds has been previously ins+tuted or finally decided by a Court of competent jurisdic+on or limited jurisdic+on, and if so, with what results."
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20. It is, thus, clear that in every plaint, plain&ff is required to specifically men&on that no suit between the same par&es or between the par&es under whom they or any of them claim, li&ga&ng on the same grounds, has been previous ins&tuted or finally decided by a Court of competent jurisdic&on or limited jurisdic&on and if so, what was the result of that previous lis.
21. As noted earlier that in present case, the plain&ff dishonestly concealed the material fact from the Court about the previous li&ga&on of 1998 ins&tuted by her, which was dismissed in 2009.
(C) Effect of the concealment of material facts in the plaint -
22. What is the effect of the concealment of material facts in the plaint from the court, is required to be considered. In K.K. Modi Vs. K.N. Modi and others (supra), it has been observed by Hon'ble Supreme Court as under:-
"43. The Supreme Court Prac&ce 1995 published by Sweet & Maxwell in paragraph 18/19/33 (page 344) explains the phrase "abuse of the process of the court" thus: "This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexa&on and oppression in the process of li&ga&on........ The categories of conduct rendering a claim frivolous, vexa&ous or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considera&ons of public policy and the interests of jus&ce may be very material."
44. One of the examples cited as an abuse of the process of court is re- li&ga&on. It is an abuse of the process of the court and contrary to jus&ce and public policy for a party to re-li&gate the same issue which has already been tried and decided earlier against him. The re-agita&on may or may not be barred as res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of court. A proceeding being filed for a collateral purpose, or a spurious claim being made in li&ga&on may also in a Page No.19 out of 30 pages 19 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) given set of facts amount to an abuse of the process of the court. Frivolous or vexa&ous proceedings may also amount to an abuse of the process of court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the &me of the public and the court from being wasted. Undoubtedly, it is a maGer of courts' discre&on whether such proceedings should be stopped or not; and this discre&on has to be exercised with circumspec&on. It is a jurisdic&on which should be sparingly exercised, and exercised only in special cases. The court should also be sa&sfied that there is no chance of the suit succeeding."
23. The effect of concealment of the material facts has also been considered by the Division Bench of Madras High Court in Murugesan v. Sri Kundramadai Ayyanar Koil etc., (1997) 2 L.W 780, wherein it has been held that it is a seGled proposi&on of law that it is the duty of the person invoking the jurisdic&on of the Court to make a full and true disclosure of all relevant facts. He should not suppress any fact. If he makes a statement, which is false, or conceals something from the court, which is relevant, the Court will refuse to go into the maGer. It was further held that the suit as well as the injunc&on applica&on are liable to be dismissed, not only on the ground that there is suppression of material fact but also on the ground that the very basis of the suit does not exist.
24. Thus, as per the seGled proposi&on of law, it is the duty of the person invoking the jurisdic&on of the Court to make a full and true disclosure of all relevant facts. He should not suppress any fact. If he makes a statement, which is false, or conceals something from the court, which is relevant, the Court will refuse to go into the maGer. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexa&on and oppression in the process of li&ga&on. It is an abuse of the process of the court and contrary to jus&ce and public policy for a party to re-li&gate the same issue, which has already been tried and decided earlier against him. The re-agita&on may or may not be barred as res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process Page No.20 out of 30 pages 20 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) of court. The court then has the power to stop such proceedings summarily and prevent the &me of the public and the court from being wasted. Undoubtedly, it is a maGer of court's discre&on whether such proceedings should be stopped or not and this discre&on has to be exercised with circumspec&on.
25. On the ques&on, as to whether a plaint can be rejected under Order 7 Rule 11 CPC, when the suit is clearly found to be barred by principle of res-judicata contained in 11 CPC , it has been held by this Court in Surender Mohan (deceased) by LR Vs. Baldev Singh and others (supra) as under:-
"15. Consequently, I would find no ground to hold that a second suit ins&tuted by the defendant in the first lis was maintainable, raising an issue which had already been decided in the previous lis to which he was a party. Though, undoubtedly, the law seGled on the issue is that an applica&on filed under the provisions of Order 7 Rule 11 of the CPC would not normally be rejected on a principle of res judicata being raised, such a plea oDen being a mixed ques&on of law and fact, however, in the present case, where the second suit is obviously and wholly one seeking a declara&on on an issue already clearly seGled in the previous lis between the same par&es, and the relief claimed in the second suit to that effect is very clearly visible from a plain reading of the plaint itself, then I would hold that the applica&on has to be accepted and the plaint on that ground alone, despite the fact that previous revisions filed by the present pe&&oner have been dismissed by this court."
26. Apart from above, in T. Arivandandam Vs. T.V. Satyapal (supra), Hon'ble Supreme Court considered the ques&on about rejec&on of a plaint under Order 7 Rule 11 CPC, wherein it was found that it is manifestly fic&&ous and meritless. It will be apt to reproduce the observa&ons made by Hon'ble Mr. Jus&ce V.R. Krishna Iyer in that case, which are as under:-
"5. We have not the slightest hesita&on in condemning the pe&&oner for the Page No.21 out of 30 pages 21 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formal- reading of the plaint it is manifestly vexa&ous, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII Rule 11 C.P.C. taking care to see that the ground men&oned therein is fulfilled. And, if clever, draDing has created the illusion of a cause of ac&on, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An ac&vist Judge is the answer to irresponsible law suits. The trial court should insist impera&vely on examining the party at the first bearing so that bogus li&ga&on can be shot down at the earliest stage. The Penal Code (Ch. XI) is also resourceful enough to meet such men, and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassina&on of Mahatma Gandhi "It is dangerous to be too good."
27. It is clear from the legal posi&on explained by Hon'ble Supreme Court as well as this High Court that when it is a clear case of re-li&ga&on and the concealment of material facts from the Court, the Court should strike off the plaint at the earliest instance and the filing of the subsequent suit is a clear abuse of the process of the Court and that should not be allowed.
(D) Bar of limita+on & rejec+on of plaint -
28. Apart from the fact that plaint of the present suit as filed by Jaspal Kaur is liable to be rejected on the ground of res-judicata as the plea raised by her in the second suit was already decided in the first li&ga&on decided in 2009, the said plaint deserves to be rejected on other grounds also. In the plaint Annexure P4 filed on 15.07.2014, while seeking a decree of declara&on to the &tle of the suit property and seeking injunc&on to direct the official defendants to make necessary correc&on in the sale deed dated 19.09.1995, plain&ff- Jaspal Kaur pleaded her cause of ac&on in para Page No.22 out of 30 pages 22 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) No.7 of the plaint, as under:-
"7. That cause of ac&on arose to the plain&ff against the defendants when the name of the plain&ff was wrongly men&oned in the sale deed as Makhan Singh s/o Gurdial Singh instead of Jaspal Kaur D/o Gurdial Singh and a few days back when the defendant no.1 and 2 refused to get corrected the sale deed to the effect of name of vendees and when the defendant no.3 threatened to alienate the property finally yesterday when the defendants refused to make correc&on in their respec&ve cause of ac&on."
29. From the above-said para of the plaint, it is clear that cause of ac&on is stated to have arisen in favour of the plain&ff, when sale deed was executed in favour of Makhan Singh by incorpora&ng his name instead of the name of plain&ff- Jaspal Kaur. The sale deed was executed in September, 1995, whereas the present suit has been filed for seeking declara&on and mandatory injunc&on in July, 2014 and thus, the suit is clearly barred by limita&on and on this ground also, the plaint is liable to be rejected in view of Order 7 Rule 1 clause (d) CPC.
[E) Maintainability of suit & rejec+on of plaint in the light of provisions of Order 21 CPC -
30. Moreover, as no&ced earlier that suit for specific performance filed by Som Nath in the year 1999 was decreed on 10.08.2009 and in the execu&on filed by him, sale deed was executed in his favour on 11.03.2013 pursuant to the order passed by the Court and then warrant of possession was issued, when the judgment debtor - Makhan Singh, his wife Jaspal Kaur and other family members obstructed the delivery of possession and the Court was compelled to order for providing police help.
31. Order 21 Rule 97 of the Code of Civil Procedure deal with the resistance or obstruc&on to possession of the immoveable property. The decree holder can complain about the said obstruc&on by moving the necessary applica&on and the appropriate order can be passed by the Page No.23 out of 30 pages 23 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) Execu&ng Court. Rule 99 further provides that if a person other than the judgment debtor is dispossessed of the immoveable property by the decree holder for possession of his property or where property has been sold in execu&on by the purchaser thereof, such a person who is being dispossessed may make an applica&on to the Court complaining of such dispossession and such applica&on is to be adjudicated upon by the Court in accordance with the provisions made herein before.
32. Order 21 Rule 101 CPC is very material in this regard, which reads as under:-
"101. Ques7on to be determined. - All ques&ons (including ques&ons rela&ng to right, &tle or interest in the property) arising between the par&es to a proceeding on an applica&on under rule 97 or rule 99 or their representa&ves, and relevant to the adjudica&on of the applica&on, shall be determined by the Court dealing with the applica&on and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the &me being in force, be deemed to have jurisdic&on to decide such ques&ons."
33. It is, thus, clear that all ques&ons rela&ng to right, &tle or interest in property, arising between the par&es are to be decided by the Execu&ng Court and not by an independent suit.
34. In the present case also, in case the plain&ff- Jaspal Kaur, who was obstruc&ng the delivery of possession had any right whatsoever as claimed by her in the suit property, she could have filed the objec&ons before the Execu&ng Court but cannot be allowed to maintain the independent suit as filed by her and for this reason also, the plaint is liable to be rejected.
35.1 In this regard, reference can be made to Sameer Singh and another Vs. Abdul Rab and others (supra) wherein Hon'ble Supreme Court has held as under:-
"13. To appreciate the submissions raised at the Bar, it is necessary to Page No.24 out of 30 pages 24 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) appreciate the whole gamut of provisions contained in Order XXI, Rules 97 to 103 of CPC and the fundamental objects behind the same. Rule 97 deals with resistance or obstruc&on to possession by the holder of a decree for possession or the purchaser of any such property sold in execu&on of a decree. It empowers such a person to file an applica&on to the Court complaining of such resistance or obstruc&on and requires the Court under sub-rule (2) to adjudicate upon the applica&on in accordance with the provisions provided therein. Rule 99 deals with dispossession by decree- holder or purchaser. It s&pulates that where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or where such property has been sold in execu&on of a decree, by the purchaser thereof, he may make an applica&on to the Court complaining of such dispossession. The Court is obliged to adjudicate such an applica&on. Thus this rule, as is manifest, includes any person other than the judgment-debtor. Rule 101 deals with the ques&ons to be determined. It provides that all ques&ons including ques&ons rela&ng to right, &tle or interest in the property arising between the par&es to a proceeding on an applica&on under Rule 97 or Rule 99 or their representa&ves, and relevant to the adjudica&on of the applica&on shall be determined by the Court dealing with an applica&on and not by a separate suit and for the said purpose, the execu&ng court has been conferred the jurisdic&on to decide the same. Rule 100 deals with orders to be passed upon applica&on complaining of dispossession. It is apt to reproduce the said rule:-
"Rule 100. Order to be passed upon applica7on complaining of dispossession.- Upon the determina&on of the ques&ons referred in Rule 101, the Court shall, in accordance with such determina&on,-
(a) make an order allowing the applica&on and direc&ng that the applicant be put into possession of the property or dismissing the applica&on; or
(b) pass such order as, in the circumstances of the case, it may deem fit."
14. Rule 98 deals with orders aDer adjudica&on. Sub-rule (1) provides that upon the determina&on of ques&ons referred to in Rule 101, the Court in Page No.25 out of 30 pages 25 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) accordance with determina&on and subject to provisions of sub-rule (2) therein make an order allowing the applica&on and direc&ng that the applicant be put in possession of the property or dismissing the applica&on or pass such other order, as in the circumstances of the case it may deem fit. As far as sub-rule (2) is concerned, the same is not necessary to be taken note of for the purposes of present case. Rule 103 which is significant reads as follows:-
"Rule 103. Orders to be treated as decrees.- Where any applica&on has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same condi&ons as to an appeal or otherwise as if it were a decree."
15. The submission of the learned counsel for the appellants is that if the scheme underlying the said Rules is appositely appreciated, it is clear as crystal that the legislature in order to avoid mul&plicity of proceedings has empowered the execu&ng court to conduct necessary enquiry and adjudicate by permiLng the par&es to adduce evidence, both oral and documentary, and to determine the right, &tle and interest of the par&es and, therefore, such an order has been given the status of a decree. As has been put forth by him, a proceeding in terms of Rule 97 or Rule 99 is in the nature of a suit and the adjudica&on is similar to that of a suit and when in the case at hand, the Court has declined to embark upon any enquiry by calling for reply, recording evidence and appropriately adjudica&ng the controversy, the order passed cannot be regarded under Rule 103 of Order XXI as a decree. In this context, the authori&es that have been commended to us need to be carefully no&ced."
35.2 ThereaDer, Hon'ble Supreme Court referred to the various precedents and then concluded in para No.21 as under:-
"21. The aforesaid authori&es clearly spell out that the court has the authority to adjudicate all the ques&ons pertaining to right, &tle or interest in the property arising between the par&es. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. The self-contained Code, as has been emphasised by this Court, enjoins the execu&ng court to adjudicate the lis and Page No.26 out of 30 pages 26 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) the purpose is to avoid mul&plicity of proceedings. It is also so because, prior to 1976 amendment the grievance was required to be agitated by filing a suit but aDer the amendment, the en&re enquiry has to be conducted by the execu&ng court. Order XXI, Rule 101 provides for the determina&on of necessary issues. Rule 103 clearly s&pulates that when an applica&on is adjudicated upon under Rule 98 or Rule 100 the said order shall have the same force as if it were a decree. Thus it is a deemed decree."
36. In another case &tled Ved Kumari (Dead through her Legal Representa+ve) Dr. Vijay Aggarwal Vs. Municipal Corpora+on of Delhi through its Commissioner, AIR 2023 Supreme Court 4155, a decree for possession was passed. During execu&on, judgment debtor stated that suit land was not in his possession, as it had been encroached upon. The execu&on pe&&on was dismissed on the ground that the encroachers were not party to the suit and, therefore, decree could not be executed. SeLng aside the said order, it was held by the Hon'ble Supreme Court that it was the duty of the Execu&ng Court to issue warrant of possession for effec&ng delivery of the suit land to the decree holder and if any resistance was offered by any stranger to the decree, the same could have been adjudicated in accordance with Order 21 Rule 97 to 101 CPC and that the Execu&ng Court was directed to execute the decree by effec&ng delivery of physical vacant possession to decree holder in accordance with provisions of Order 21.
37. Hon'ble Supreme Court in yet another case in Jini Dhanrajgir and another Vs. Shibu Mathew and another, AIR 2023 Supreme Court 2567, held as under:-
"17. Sec&on 47 of the CPC, being one of the most important provisions rela&ng to execu&on of decrees, mandates that the court execu&ng the decree shall determine all ques&ons arising between the par&es to the suit or their representa&ves in rela&on to the execu&on, discharge, or sa&sfac&on of the decree and that such ques&ons may not be adjudicated in a separate suit. What is intended by conferring exclusive jurisdic&on on the execu&ng court is to prevent needless and unnecessary li&ga&on and to achieve speedy disposal Page No.27 out of 30 pages 27 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) of the ques&ons arising for discussion in rela&on to the execu&on, discharge or sa&sfac&on of the decree. Should there be any resistance offered or obstruc&on raised impeding due execu&on of a decree made by a court of competent jurisdic&on, the provisions of Rules 97, 101 and 98 of Order XXI enable the execu&ng court to adjudicate the inter se claims of the decree- holder and the third par&es in the execu&on proceedings themselves to avoid prolonga&on of li&ga&on by driving the par&es to ins&tute independent suits. No wonder, the provisions contained in Rules 97 to 106 of Order XXI of the CPC under the sub-heading "Resistance to delivery of possession to decree- holder or purchaser" have been held by this Court to be a complete code in itself in Brahmdeo Chaudhary (supra) as well as in a decision of recent origin in Asgar vs. Mohan Verma, (2020) 16 SCC 230. In the laGer decision, it has been noted that Rules 97 to 103 of Order XXI provide the sole remedy both to par&es to a suit as well as to a stranger to the decree put to execu&on.
18. In Bhanwar Lal vs. Satyanarain, (1995) 1 SCC 6, this Court held that when any person, whether claiming deriva&ve &tle from the judgment-debtor or sets up his own right, &tle or interest de hors the judgment debtor, the execu&ng court whilst execu&ng the decree, in addi&on to the power under Rule 35(3), is empowered to conduct an enquiry whether the obstruc&on by that person is legal or not.
19. This Court in Noorduddin v. Dr. K.L. Anand, (1995) 1 SCC 242, reiterated that the execu&ng court was bound to adjudicate the claim of an obstruc&onist and to record a finding allowing or rejec&ng the claim which was laid before the execu&ng court, the person being neither a party to the earlier proceedings nor the decree being passed against him.
20. Yet again, in Babulal v. Raj Kumar & Ors., (1996) 3 SCC 154, this Court aDer seLng aside the order impugned held that a determina&on is required to be conducted under Order XXI Rule 98 before removal of the obstruc&on caused by the objector and a finding is required to be recorded in that regard. It was also held that the execu&ng court was required to determine the ques&on rela&ng to when the appellants had objected to the execu&on of the decree as against those appellants who were not par&es to the decree for specific performance.
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21. The decision in Brahmdeo Chaudhary (supra) cited by Mr. Chitambaresh, is also to the same effect.
22. Considering the scheme of Order XXI Rules 97 to 106, this Court in Silverline Forum Pvt. Ltd. v. Rajiv Trust & Anr., 17 (1998) 3 SCC 723 , found it difficult to agree with the High Court that resistance or obstruc&on made by a third party to the decree put to execu&on cannot be gone into under Order XXI Rule 97. Referring to Rules 97 to 106, this Court further held that they were intended to deal with every sort of resistance or obstruc&on raised by any person and that Rule 97(2) made it incumbent on the court to adjudicate upon such complaint in accordance with the procedure laid down. This Court also proceeded to observe:
"It is clear that execu&ng court can decide whether the resistor or obstructer is a person bound by the decree and he refuses to vacate the property. That ques&on also squarely falls within the adjudicatory process contemplated in Order 21, Rule 97(2) of the Code. The adjudica&on. men&oned therein need not necessarily involve a detailed enquiry or collec&on of evidence. Court can make the adjudica&on on admiGed facts or even on the averments made by the resistor. Of course, the Court can direct the par&es to adduce evidence for such determina&on if the Court deems it necessary".
23. The long line of precedents notwithstanding, it is indeed true that in terms of the ordainment of Rule 102 of Order XXI, Rules 98 and 100 thereof would not apply to resistance or obstruc&on in execu&on of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property aDer the ins&tu&on of the suit in which the decree was passed."
Conclusion:
38. In view of the afore-said legal posi&on, it is held that in case the plain&ff Japsal Kaur claim to be in possession of the suit land, she could have filed the objec&ons under Order 21 CPC before the Execu&ng Court in the execu&on filed by the decree holder- Som Nath, in whose favour a decree for specific performance has already been passed. In fact, Smt. Jaspal Kaur filed the objec&ons before the Execu&ng Court and the same Page No.29 out of 30 pages 29 of 30 ::: Downloaded on - 22-09-2024 05:28:04 ::: Neutral Citation No:=2024:PHHC:119727 SAO No.5 of 2022 (O&M) were dismissed by the Execu&ng Court and for this reason also, the independent suit filed by her was not maintainable , and for this reason also, the plaint is liable to be rejected.
39. In view of the en&re discussion as above, it is found that plaint is liable to be rejected for various reasons - concealment of material facts about previous li&ga&on and the result thereof, res-judicata, bar of limita&on and non-maintainability of the suit in view of provisions of Order 21 CPC.
40. As such, it is held that the impugned order passed by learned Addi&onal District Judge, Ludhiana cannot be sustained in the eyes of law.
The said order is hereby set aside. The order of the trial Court is hereby restored, whereby the applica&on under Order 7 Rule 11 CPC filed by Som Nath was allowed, rejec&ng the plaint of Smt. Jaspal Kaur.
41. The present appeal is allowed accordingly.
September 09, 2024 (DEEPAK GUPTA)
renu JUDGE
Whether Speaking/reasoned Yes
Whether Reportable Yes
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