1 2025:CGHC:47619 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 65 of 2023 1 - Smt. Shakuntala Devi W/o Noharlal Aged About 59 Years R/o Village Pamgarh, Police Station And Tahsil- Pamgarh, District- Janjgir-Champa, Chhattisgarh............Defendant No.01) 2 - Neveen Kumar S/o Noharlal Aged About 36 Years R/o Village Pamgarh, Police Station And Tahsil Pamgarh, District- Janjgir-Champa, Chhattisgarh............ (Defendant No.02) ... Petitioner(s) versus 1 - Ganeshram S/o Late Hetram Aged About 75 Years R/o Village Pamgarh, Police Station And Tahsil- Pamgarh, District- Janjgir-Champa, Chhattisgarh...........Plaintiff No.01) 2 - Sukhdev S/o Ganeshram Aged About 47 Years R/o Village Pamgarh, Police Station And Tahsil Pamgarh, District- Janjgir-Champa, Chhattisgarh..........(Plaintiff No.02) 3 - Ishwar S/o Ganeshram Aged About 45 Years R/o Village Pamgarh, Police Station And Tahsil- Pamgarh, District- Janjgir-Champa, Chhattisgarh........(Plaintiff No.03) 4 - Sharda D/o Ganeshram Aged About 43 Years R/o Village Pamgarh, Police Station And Tahsil- Pamgarh, District- Janjgir-Champa, Chhattisgarh........(Plaintiff No. 04) 5 - Chandrashekhar S/o Ganeshram Aged About 41 Years R/o Village Pamgarh, Police Station And Tahsil Pamgarh, District- Janjgir-Champa, Chhattisgarh.............. (Plaintiff No. 05) 6 - Indrasen S/o Ganeshram Aged About 38 Years R/o Village Pamgarh, Police Station And Tahsil- Pamgarh, District- Janjgir-Champa, Chhattisgarh.................. (Plaintiff No.06) 7 - Rajesh Kumar S/o Shri Roopnarayan Aged About 47 Years R/o Village Pamgarh, Police Station And Tahsil- Pamgarh, District- Janjgir-Champa, Chhattisgarh.............. (Defendant No.03) 8 - Yogendra Singh S/o Shri Jagdish Prasad Aged About 29 Years R/o Village Champa, Police Station And Tahsil Champa, District- Janjgir-Champa, Chhattisgarh....................(Defendant No.04) Digitally signed by SHAYNA KADRI 2 9 - State Of Chhattisgarh Through District Collector, Janjgir, District- Janjgir- Champa, Chhattisgarh.....................(Defendant No.05) ... Respondent(s) For Applicant : Ms. Anushka Sharma, Advocate holding brief on behalf of Mr. Manoj Paranjpe, Advocate For State : Mr. Ajay Pandey, Govt. Advocate For Resp. No. 1 to 6 : Mr. Somnath Verma, Advocate For Resp. No. 8 : Ms. Aditi Singhvi, Advocate (Hon'ble Shri Amitendra Kishore Prasad, Judge) Order on Board 16/09/2025 1. The applicant has preferred the present revision petition under Section 115 of the Code of Civil Procedure, 1908 feeling aggrieved by the order dated 26.04.2023 passed by the learned 2nd Civil Judge Class – II, Pamgarh, Distt. - Janjgir – Champa (C.G.) in Civil Suit No. 04-A/2017, whereby the application filed by the defendant under Section 11 C.P.C., was dismissed. 2. Facts of the case, in a nutshell, are that the respondents No. 1 to 6 (Plaintiffs) filed a civil suit before the learned 2nd Civil Judge Class-II, Pamgarh, District Janjgir-Champa (C.G.), seeking a declaration of title and permanent injunction in respect of land bearing khasra no. 174/1, measuring 0.80 acres, situated in village Pamgarh, Tahsil Pamgarh. The applicants (defendants) filed their written statement and subsequently moved an application under Section 11 of the Code of Civil Procedure (CPC) for dismissal of the suit, contending that an earlier civil suit (No. 31-A/2011) between the same parties had already been adjudicated regarding adjacent lands bearing khasra nos. 174/4 (0.40 acres) and 174/15 (0.05 acres). The plaintiffs responded to this application, and the applicants also submitted a copy of the judgment and decree dated 14.12.2018 in Civil Suit No. 31-A/2011, which was 3 later upheld by the Appellate Court on 10.10.2019. The plaintiffs then filed a second appeal before this Court (Second Appeal No. 786/2019), which was admitted on 13.04.2023, framing a question of law related to the same land at issue. The Trial Court dismissed the application filed under Section 11 on 26.04.2023, holding that the previous suit pertained to different khasra numbers and that the present suit included additional parties (Respondents No. 7 & 8) not involved in the earlier suit, thereby deeming the current suit maintainable. It is further submitted that the applicants are bona fide purchasers of the land through registered sale deeds and had the lands demarcated, which revealed illegal encroachment by the plaintiffs. The applicants also referred to two previous proceedings under Section 250 of the Chhattisgarh Land Revenue Code concerning the land, which ultimately did not grant relief to the plaintiffs. 3. Learned counsel for the applicant submits that the applicants, who are the defendants in the learned trial Court, have filed the instant petition challenging the order dated 26.04.2023 (Annexure A/1, Page No. 13), whereby their application under Section 11 of the Code of Civil Procedure was rejected, and the matter was fixed for framing of issues. The respondents, namely Ganesh Ram and five others (respondents No. 1 to 6), had filed a civil suit seeking declaration of title and permanent injunction in respect of land bearing Khasra No. 174/1, measuring 5.65 acres, situated at Pamgarh, Janjgir. The respondents alleged that the subject property is ancestral land, which they have inherited and succeeded to. In response, the applicants filed an application under Section 11 CPC for dismissal of the suit on the ground that the same subject matter and parties were involved in an 4 earlier civil suit, Civil Suit No. 31A/2011, decided on 31.12.2018. In the said earlier suit, the ownership of adjacent land bearing Khasra No. 174/4 (0.40 acres) and Khasra No. 174/15 (0.05 acres) was declared in favor of Shakuntala and Naveen, the applicants herein. The present suit, being with respect to the same property, is therefore barred by the doctrine of res judicata. However, the learned trial Court rejected the said application on merits vide order dated 26.04.2023. It is well- settled law, as affirmed by the Hon’ble Supreme Court in the matter of Keshav Sood v. Kirti Pradeep Sood & Ors., reported in 2023 SCC Online SC 2459, that the scope of Order VII Rule 11 CPC is limited to the averments made in the plaint and the documents annexed thereto. The defense and documents relied upon by the defendant cannot be considered at this stage. Therefore, issues such as res judicata, which require consideration of pleadings, prior judgments, and appellate decisions, cannot be decided on a preliminary application under Order VII Rule 11. The Supreme Court specifically held that neither the Single Judge nor the Division Bench could decide the plea of res judicata on merits at the preliminary stage. Accordingly, the issue of res judicata is a mixed question of law and fact, as recognized in the matter of Dr. Somesh Pandeya and Others vs. Viseshwar Prasad Pandeya (Died) through Lrs., reported in 2017 (2) CGLJ 534, and must be examined after framing appropriate issues and hearing the matter on merits. Following this, the applicants filed an application under Section 151 CPC along with the trial Court order sheets, and on 09.08.2023, the trial Court allowed amendment in the written submissions to specifically raise the issue of res judicata. Subsequently, the defendants filed an application under Section 14 Rule 5 CPC for 5 framing additional issues regarding res judicata, which is currently pending before the trial Court. In the interest of justice, it is submitted that this Court may dispose of the revision petition with a direction to the learned trial Court to frame the additional issues on res judicata and decide the matter accordingly. This would prevent multiplicity of litigation and serve the ends of justice by ensuring that the principle of res judicata is properly applied. In light of the foregoing submissions, the impugned order dated 26.04.2023 rejecting the application under Section 11 CPC is liable to be set aside. The revision petition may kindly be allowed, and the learned trial Court may be directed to frame the additional issues on res judicata and proceed to decide the suit on merits after due consideration of all relevant facts and prior judgments. 4. On the other hand, learned counsel for the respective respondents jointly submit that the present petition filed by the applicants seeking dismissal of the suit under Section 11 of the Code of Civil Procedure (CPC) is wholly misconceived and liable to be dismissed The contention of the applicants that the present suit is barred by the doctrine of res judicata is factually and legally incorrect. The subject matter of the present suit, land bearing Khasra No. 174/1 measuring 5.65 acres, is distinct and different from the lands involved in the earlier Civil Suit No. 31A/2011, which related only to Khasra Nos. 174/4 (0.40 acres) and 174/15 (0.05 acres). The trial Court rightly observed that the properties in dispute in the two suits are not identical and hence the subsequent suit cannot be barred on the ground of res judicata. The applicants have failed to establish that the issues and properties are the same or substantially identical, which is a sine qua non for application of Section 11 CPC. It is submitted that the mere fact that 6 the earlier suit involved some of the same parties does not automatically bar a fresh suit relating to a different property, even if within the same village or khasra number. The doctrine of res judicata applies only where the same cause of action and issue have been finally decided between the same parties or their privies. Here, the trial Court rightly found that certain respondents (respondents No. 7 and 8) were not parties in the previous suit, and they are now properly included in the present suit, making the present litigation distinct and maintainable. The trial court did not dismiss the suit outright but rejected the Section 11 application, leaving the issue of res judicata to be decided after framing proper issues and a full trial. The respondents submit that the approach of learned trial Court was legally sound and in consonance with settled jurisprudence. 5. It is further submitted that the applicants’ plea for framing additional issues on res judicata under Section 14 Rule 5 CPC is premature and unnecessary at this stage. The trial Court has already fixed the matter for framing of issues, and the respondents have no objection to such framing as per procedure. However, dismissal of the suit or pre-emptive adjudication of res judicata before framing and trial would be contrary to the principle of natural justice and fair adjudication. The submissions made by the applicants about the subject land being part of the same khasra number do not ipso facto make the property identical or the issues res judicata. The respondents have specifically pleaded their ownership and title to the subject khasra No. 174/1 and the suit area of 5.65 acres, which is clearly distinguishable from the earlier suit’s limited land parcels. The applicants’ assertion that the entire khasra number should have been adjudicated in the previous suit is without basis and 7 ignores the fact that parties have the right to file suits with respect to different portions of land where the cause of action differs. It is submitted that the reliance on the second appeal pending before this Court (Second Appeal No. 786/2019) to challenge the maintainability of the present suit is also misplaced. The fact that a second appeal is pending does not create any bar for the respondents to initiate a fresh suit on a distinct cause of action. The pending appeal relates to a different suit and subject matter and cannot be a ground to dismiss the present suit prematurely. In view of the foregoing submissions, it is prayed that the instant petition filed by the applicants under Section 11 CPC be dismissed, the impugned order dated 26.04.2023 be upheld, and the suit be allowed to proceed to trial for adjudication on merits. 6. I have heard learned counsel for the parties and have also perused the documents appended along with the revision. 7. The primary issue involved in this revision petition under Section 115 of the Code of Civil Procedure is whether the learned trial Court committed an error in rejecting the application of defendant under Order 7 Rule 11(d) CPC, which sought dismissal of the suit on the grounds of res judicata and lis pendens. 8. At the outset, it is pertinent to recapitulate the well-settled legal position laid down by the Hon’ble Supreme Court in a series of decisions. 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 8 decided in an application to reject the plaint. 9. In order to adjudicate the present controversy, it is imperative to analyze the settled principles governing the applicability of Section 11 of the Code of Civil Procedure, 1908 (CPC), which deals with the doctrine of res judicata, and the procedural constraints under Order VII Rule 11 CPC. 10.Section 11 CPC enunciates the principle that no Court shall try any suit or issue in which the matter directly and substantially in issue has been previously heard and finally decided by a competent court between the same parties or their privies. However, the application of this principle is circumscribed by the requirement that the issues and causes of action in both proceedings must be identical or substantially the same, and that the parties involved must be the same or represent the same legal interests. It is equally well established that applications filed under Order VII Rule 11 CPC are confined to a prima facie examination of the plaint and the documents annexed thereto. The function of Court at this stage is to determine whether the plaint discloses a cause of action, whether the suit is barred by law, or whether the suit is otherwise maintainable. The Court does not enter into the territory of assessing the defense of defendant or the merits of the case beyond the scope of the plaint and accompanying documents. 11. 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 : 9 “4. After having heard the learned Counsel appearing for the parties, we find that the plea of res judicata could not have been gone into on an application made by the Appellant Under Rule 11 of Order VII of Code of Civil Procedure. Apart from pleadings in the earlier suit, several other documents which were relied upon by the Appellant in his application Under Rule 11 of Order VII of Code of Civil Procedure were required to be gone into for deciding the issue of res judicata. 5. As far as scope of Rule 11 of Order VII 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.” 12.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, 10 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 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.” 13.Upon meticulous scrutiny of the pleadings, relevant documents, submissions advanced by learned counsel for both parties, as well as the precedents of Hon’ble Supreme Court governing the subject matter, this Court is persuaded to hold that the property in dispute in the present suit pertains to Khasra No. 174/1 measuring approximately 5.65 acres, which is materially and substantially different from the lands adjudicated in the prior suit (Civil Suit No. 31A/2011) concerning Khasra Nos. 174/4 (0.40 acres) and 174/15 (0.05 acres). This 11 difference in the property description and extent clearly indicates that the cause of action and subject matter are not identical. Moreover, the parties arrayed in the present suit include certain individuals, respondents No. 7 and 8, who were not parties to the earlier suit, thereby creating a distinction in the lis and legal persona involved. Since res judicata operates on the principle of finality between the same parties or their privies, the introduction of new parties and variation in the subject matter precludes a finding that the present suit is barred at this preliminary juncture. 14.Further, the learned trial Court rightly exercised judicial restraint by confining its order to the scope permissible under Order VII Rule 11 CPC. It refrained from venturing into the merits of the res judicata plea and instead relegated the issue for consideration at the stage of framing issues and full trial. This approach is consonant with the principles of natural justice and procedural fairness, ensuring that both parties have an adequate opportunity to present their case comprehensively before a final adjudication is rendered. The rejection of Court of the Section 11 application on meritless grounds at this stage would amount to premature closure of the case and denial of the right to fair trial, which is impermissible under law. 15.In light of the above detailed analysis and judicial precedents, this Court is firmly of the view that the learned trial Court committed no error or infirmity in dismissing the application filed by defendant under Section 11 CPC and ordering that the suit proceed for framing of issues and trial. The rejection of the Section 11 application was a judicious exercise of jurisdiction, reflecting adherence to the procedural 12 safeguards embedded within the CPC. The impugned order of the learned trial Court correctly preserves the respondent-plaintiffs’ right to seek adjudication of their title and injunction claims on merits, including an appropriate determination of the applicability of res judicata as a mixed question of law and fact. 16.Accordingly, the revision petition filed under Section 115 CPC is hereby dismissed. 17.The order dated 26.04.2023 passed by the learned 2nd Civil Judge Class-II, Pamgarh, is affirmed and upheld in all respects. It is directed that the learned trial court shall proceed expeditiously to frame all necessary issues, including those relating to the plea of res judicata raised by the applicants, and adjudicate the suit in accordance with law after giving both parties adequate opportunity of hearing and evidence. Sd/- (Amitendra Kishore Prasad) JUDGE Shayna