1 2025:CGHC:38790 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 85 of 2024 1 - Santosh Kumar S/o Luduram Aged About 38 Years R/o Village And Post Pawani, Police Station And Tahsil Bilaigarh, District Sarangarh - Bilaigarh, Chhattisgarh. (Defendant) ... Revisioner versus 1 - Luduram S/o Mohitram Aged About 70 Years R/o Village And Post - Pawani, Police Station And Tahsil Bilaigarh, District Sarangarh - Bilaigarh, Chhattisgarh. (Plaintiffs) 2 - The State Of Chhattisgarh Through The Collector, Balodabazar, Chhattisgarh. ... Respondent(s) For Revisioner : Mr. Ashok Kumar Shukla, Advocate along with Ms. Shivani Singh, Advocate For State : Mr. Ashutosh Shukla, Advocate (Hon'ble Shri Amitendra Kishore Prasad, Judge) Order on Board 05/08/2025 1. The revisioner / defendant has preferred the present revision petition under Section 115 of the Code of Civil Procedure, feeling aggrieved by the order dated 04.04.2024 passed by the learned trial Court, whereby the application filed by the defendant under Order 7 Rule 11 C.P.C., seeking rejection of the plaint, was dismissed in a suit filed for declaration of title, possession, and permanent injunction. 2. Facts of the case, in a nutshell, are that the respondent No. 1 / plaintiff, Luduram, initially filed a civil suit seeking a declaration of title, recovery of possession, and a decree of perpetual injunction against the present revisioner, Santosh Kumar, and another defendant, Badrika Mahinag. Digitally signed by SHAYNA KADRI 2 The suit was filed before the learned trial Court. Santosh Kumar entered appearance after due service of notice and submitted his written statement, contesting the averments of the plaint. The trial Court adjudicated the matter on merits and ultimately decreed the suit in favour of the respondent. Following the favourable decree, the respondent initiated execution proceedings. However, during the course of execution, it came to light that the decree was obtained in respect of a different survey number that was not the subject matter of dispute. Specifically, it was found that there was no house situated on the survey number mentioned in the decree (Survey No. 1516), leading to the failure of the execution proceedings. Subsequently, the respondent filed a second suit, this time claiming that the actual disputed house was situated on Survey No. 2991/1, measuring 0.018 hectares, located in Village Pawani, Tahsil Bilaigarh, District Sarangarh-Bilaigarh (C.G.). In this fresh suit, the respondent sought the same reliefs as in the previous one. Upon service of notice in the second suit, the revisioner Santosh Kumar appeared and discovered that the new suit involved the same house, the same parties, and the same cause of action as the earlier one. Consequently, he filed an application under Order 7 Rule 11 of the Civil Procedure Code (CPC), raising objections to the maintainability of the suit on grounds including the principle of res judicata. The plaintiff (respondent) submitted a reply to this application on 14/12/2023. The learned trial Court, after considering the submissions of both parties, rejected the application filed under Order 7 Rule 11 of CPC by order dated 04/04/2024. The said order is impugned in the present revision petition. 3. Learned counsel for the revisioner submits that the respondent/plaintiff 3 had earlier instituted Civil Suit No. 07A/2017 before the learned Trial Court, seeking a declaration of title, recovery of possession, and a decree of perpetual injunction with respect to a house alleged to be situated on Survey No. 1516, measuring 0.032 hectares. The said suit was decreed in favour of the respondent, and the decree was passed against the present Revisioner and another defendant, Badrika Mahinag. However, during the execution proceedings of the said decree, it became apparent that the subject house was not situated on Survey No. 1516, as claimed in the earlier suit, but rather on Survey No. 2991/1, measuring 0.018 hectares. As a result, the decree could not be executed due to the discrepancy in the survey number mentioned in the plaint and decree. Instead of approaching the competent Court for rectification of the decree under Section 152 of the Code of Civil Procedure (CPC), the respondent, suppressing the material fact of the earlier decree, instituted a fresh suit on the same cause of action, between the same parties, concerning the same subject matter, only altering the survey number to 2991/1. The said suit was registered as Civil Suit No. 9A/2022. Upon receiving notice in the fresh suit, the revisioner immediately took objection to the maintainability of the suit by filing an application under Order 7 Rule 11 of CPC. It was submitted therein that the second suit is barred by the principle of res judicata, amounts to a multiplicity of proceedings, and is a clear abuse of process of law. However, the learned trial Court, without appreciating the legal objections raised and without conducting a detailed examination of the maintainability issue, summarily rejected the application by the impugned order dated 04/04/2024. It is further submitted that the essential elements, the parties, the dispute, the relief 4 sought, and the subject matter, are identical in both suits. The only variation is the correction of the survey number. In such a situation, the appropriate remedy for the respondent was to seek rectification under Section 152 CPC rather than instituting a fresh suit. Filing a second suit in these circumstances is legally impermissible and barred by law. It is submitted that the subsequent suit is also hit by the principle of res judicata, as embodied in Section 11 of the CPC. The legal position, as settled by several judgments of the Hon’ble Supreme Court and various High Courts, makes it clear that where a suit is clearly barred by law, either on account of res judicata or due to availability of a statutory remedy, the same can be dismissed at the threshold without requiring a full-fledged trial or framing of issues. In support of this contention, reliance is placed on the decision of the Hon’ble Supreme Court in Peethani Suryanarayana vs Repaka Venkata Ramana, reported in AIR SCW 2009 Vol. 3, page 2731, where it was held that when correction of survey number is the only issue, the appropriate course is rectification under Section 152 CPC, and a separate suit is not maintainable. Further, in R. Srinivasan vs M. Thanbusamy, reported in Madras Law Journal 1997 Vol. 1, page 34, the Madras High Court similarly held that a second suit based on mere correction of a survey number is barred. It is also submitted that the conduct of the respondent in suppressing the existence and contents of the earlier decree from the learned Trial Court in the second suit amounts to playing a fraud upon the court. Such suppression of material facts disentitles the respondent from any relief. The trial Court ought to have considered this aspect before rejecting the application filed by revisioner under Order 7 Rule 11 CPC. Lastly, without prejudice to the 5 above submissions, it is alternatively submitted that if this Court is of the view that the issue of res judicata or maintainability cannot be conclusively determined without trial, then the impugned order dated 04/04/2024 may kindly be set aside and the matter remanded to the learned trial Court with directions to frame specific issues on res judicata and maintainability, and decide those preliminary issues first before proceeding further with the suit. It is therefore prayed that this Court may be pleased to allow the present revision, set aside the impugned order dated 04/04/2024, and either dismiss the suit as not maintainable or, in the alternative, remand the matter to the trial Court for framing of preliminary issues. 4. The learned State Counsel submits that the matter at hand involves complex factual and legal issues relating to the applicability of the doctrine of res judicata and the maintainability of the second suit filed by the respondent/plaintiff. The initial suit filed by the respondent sought declaration of title, possession, and injunction regarding a house situated on Survey No. 1516, and a decree was duly passed by the learned trial Court in favour of the respondent. However, during the execution of the decree, it was revealed that the actual house in dispute is situated on a different survey number, i.e., Survey No. 2991/1. Consequently, the respondent filed a fresh suit for the same reliefs, based on the corrected survey number. The revisioner raised an objection under Order 7 Rule 11 CPC, alleging res judicata, multiplicity of proceedings, and maintainability issues. The learned trial Court, after due consideration of the submissions and documents filed by both parties, rejected the application filed by Revisioner, holding that the question of res judicata is not a matter to be decided at the threshold, 6 especially in a suit where facts and documents require detailed examination. It is submitted that the doctrine of res judicata is inherently a mixed question of fact and law, which cannot be conclusively determined without a full trial, including framing of issues and recording of evidence. The discretion of trial court in this regard must be respected unless there is a manifest error or illegality, which is absent in the present case. The contention that the subsequent suit is barred merely because the survey number differs is an oversimplification. The trial Court is the appropriate forum to examine whether the change in survey number materially affects the subject matter of the suit and whether the second suit is genuinely barred by res judicata. This requires appreciation of evidence, pleadings, and documents which cannot be done in summary proceedings. Learned State Counsel also submits that the remedy under Section 152 CPC for rectification of the decree is available only in limited circumstances, and it cannot be invoked to deny the right of the plaintiff to seek fresh adjudication when material facts differ. It is a question for trial Court to determine on facts whether the fresh suit is maintainable. The impugned order passed by the learned trial court on 04/04/2024, rejecting the application under Order 7 Rule 11 CPC, is a well- reasoned order passed after considering the submissions of both parties and in accordance with settled legal principles. 5. I have heard learned counsel for the parties and have also perused the documents appended along with the revision. 6. The present revision petition under Section 115 of the Code of Civil Procedure challenges the order dated 04.04.2024 passed by the learned trial Court whereby the application filed by the defendant under 7 Order 7 Rule 11 CPC was dismissed. The said application sought rejection of the plaint primarily on the ground of res judicata and maintainability of the suit. 7. It is well settled by the Hon’ble Supreme Court and various High Courts that while deciding an application under Order 7 Rule 11 CPC, the jurisdiction of Court is limited to examining the averments contained only in the plaint. The purpose of this provision is to weed out non- maintainable suits on the face of the plaint itself without delving into the evidence or complex issues that require trial. Importantly, the contents of the written statement or other documents filed by the defendant in opposition to the suit are neither required nor permissible to be considered at this stage. This principle has been reiterated time and again by the Hon’ble Supreme Court in landmark judgments, emphasizing that the Court must confine itself to the pleadings contained within the plaint while adjudicating an application under Order 7 Rule 11 CPC. 8. In the matter of Pandurangan vs. T. Jayarama Chettiar & Anr., reported in 2025 SCC OnLine SC 1425 has held that a plea of 'res judicata' cannot be decided in an application filed under Order VII Rule 11 of the Code of Civil Procedure for rejection of a plaint. The Court held that res judicata is an issue to be decided in trial and cannot be summarily decided in an application to reject the plaint. 9. Hon’ble Supreme Court in the matter of Keshav Sood vs. Kirti Pradeep Sood, reported in 2023 SCC OnLine SC 2459 has took a strong view against the plea of res judicata being raised in applications seeking rejection of plaint and held as follows : “5. As far as scope of Rule 11 of Order VII 8 of CPC is concerned, the law is well settled. The Court can look into only the averments made in the plaint and at the highest, documents produced along with the plaint. The defence of a defendant and documents relied upon by him cannot be looked into while deciding such application. 6. Hence, in our view, the issue of res judicata could not have been decided on an application under Rule 11 of Order VII of CPC. The reason is that the adjudication on the issue involves consideration of the pleadings in the earlier suit, the judgment of the Trial Court and the judgment of the Appellate Courts. Therefore, we make it clear that neither the learned Single Judge nor the Division Bench at this stage could have decided the plea of res judicata raised by the appellant on merits.” 10.In the matter of Srihari Hanumandas Totala vs. Hemant Vithal Kamat & Ors., reported in (2021) 9 SCC 99, Hon’ble Supreme Court has held that the adjudication of the plea of res judicata is beyond the scope of Order VII, Rule 11 of C.P.C., the Hon’ble Supreme Court has held as under : “25. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarised as follows: 25.1. 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. 25.2. The defence made by the defendant in the suit must not be considered while deciding the merits of the application. 25.3. To determine whether a suit is barred 9 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. 25.4. 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.” 11. As regards the principle of res judicata, it is a well-recognized legal maxim that a matter once finally adjudicated upon between the same parties cannot be reopened or re-litigated in a subsequent suit. However, the determination of whether res judicata applies is inherently a mixed question of law and fact which ordinarily requires a detailed and careful examination of pleadings, evidence, and judicial pronouncements in the earlier proceedings. The Hon’ble Supreme Court has consistently held that the issue of res judicata cannot be conclusively decided on mere submissions or on preliminary objection alone without the framing of issues, recording of evidence, and hearing of arguments during trial. The rationale is that a superficial reading or selective interpretation of pleadings may result in a miscarriage of justice if the factual matrix of the two suits differs in material respects. 12.In the instant matter, first suit filed by the the respondent/plaintiff pertained to a property described as situated on Survey No. 1516, which was decreed in their favor by the trial Court. However, during 10 execution, it became apparent that the property in dispute was actually located on Survey No. 2991/1. Consequently, the plaintiff instituted a fresh suit with the corrected survey number seeking identical reliefs. The revisioner challenged the maintainability of this second suit on the ground that it is barred by res judicata and ought to have been dismissed under Order 7 Rule 11 CPC. Notwithstanding this contention, it is clear that the second suit involves a different survey number and the factual differences arising therefrom are significant enough to merit a trial. Determining whether these differences are sufficient to circumvent the bar of res judicata calls for a comprehensive appraisal of both suits, including their plaints, pleadings, evidence, and the judgment and decree in the earlier suit. Such an exercise cannot be undertaken in summary proceedings under Order 7 Rule 11. 13.Moreover, the contention of the revisioner that the plaintiff ought to have sought rectification of the decree under Section 152 CPC instead of filing a fresh suit is a matter of procedural and substantive law to be decided upon a full trial. The remedy under Section 152 CPC is applicable only in specific and limited circumstances and does not preclude the institution of a fresh suit if material facts or the subject matter have substantially changed or were erroneously described earlier. Whether the facts of the present case warrant invoking Section 152 or permit a fresh suit is a determination for the trial Court after considering the evidence. It is premature and inappropriate to dismiss the suit on this ground at the threshold. 14.In light of the above legal position, the learned trial Court rightly observed that the objection of res judicata raised in the application 11 under Order 7 Rule 11 CPC could not be decided conclusively on an objection raised in application under Order 7 Rule 11 of CPC. The discretion of trial Court in this regard has been exercised judiciously and in conformity with established legal principles. There is no evidence of any manifest error or illegality in the impugned order that would justify interference by this Court in exercise of revisional jurisdiction. The Court also notes that the principle underlying Order 7 Rule 11 CPC is to prevent frivolous or legally untenable suits from proceeding to trial, but not to prematurely close the door of justice when complex factual and legal issues, such as those involved in the present case, are to be determined. Dismissing the suit at such an incipient stage without appreciating the nuances of the two suits and the factual distinctions would be unjust and contrary to the interest of justice. 15.Having considered the submissions advanced by learned counsel for the parties, as well as the relevant documents annexed to the revision petition and the plaints, this Court finds no infirmity in the impugned order passed by the trial Court. The issue of res judicata requires detailed examination during the trial and cannot be resolved on preliminary objections under Order 7 Rule 11 CPC alone. Therefore, the revision petition is devoid of merit and is liable to be dismissed. 16.In conclusion, the revision petition stands dismissed. The order dated 04.04.2024 passed by the learned trial court is hereby upheld. The trial Court is directed to proceed with the suit and decide all issues, including the question of res judicata, on merits in accordance with law. Sd/- (Amitendra Kishore Prasad) JUDGE Shayna