1 2025:CGHC:49625 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 243 of 2025 1 - Daras Ram S/o Roop Dhar Aged About 54 Years Village- Parsada, Tahsil And Distt.- Raigarh (C.G.) (Defendant) ... Applicant versus 1 - Gulapi Bai D/o Roop Dhar Aged About 65 Years W/o Barat Ram, Caste Aghariya R/o Village Charbhata, Tehsil And Distt.- Raigarh (C.G.) (Plaintiffs) 2 - State Of Chhattisgarh Through Collector, Raigarh Tehsil And Distt- Raigarh (C.G.) (Formal Defendant) ... Respondent(s) For Applicant : Mr. Amit Sharma, Advocate For State : Mr. Ajay Pandey, Govt. Advocate (Hon'ble Shri Amitendra Kishore Prasad, Judge) Order on Board 06/10/2025 1. The applicant / defendant has preferred the present revision petition under Section 115 of the Code of Civil Procedure, 1908 feeling aggrieved by the order dated 23.07.2025 passed by the learned trial Court in Civil Suit No. A/52/2025, whereby the application filed by the defendant under Section 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 respondent No.1 (the plaintiff in the original suit) initiated a civil suit seeking a declaration of title and permanent injunction concerning a parcel of land situated at Village Digitally signed by SHAYNA KADRI 2 Parsada, Tehsil and District Raigarh, identified as Schedule A land. The plaintiff asserted that this land is ancestral property, in which she holds a rightful interest as a coparcener. She claimed equitable ownership and a share in this undivided property by virtue of inheritance and sought a formal declaration of her title along with a partition of her rightful share in the said ancestral land. The civil suit was registered as Civil Suit A/57/2012 before the competent Civil Court. After due consideration, the learned trial Court decreed the suit in favor of the plaintiff, formally declaring her title to a one-third share in the ancestral property. Following this decree, the plaintiff moved the learned Tahsildar with a preliminary decree to execute the partition in accordance with the order passed by the Court. The Tahsildar, acting under the decree of Court, duly partitioned the land, allotting the respective shares to the parties as directed. However, after the partition, the present defendant (applicant in the present revision) allegedly began to interfere with and annoy the possession of the plaintiff over the allotted land. As a result of this hostile possession and disturbance, the plaintiff filed the present suit seeking a declaration of title and a permanent injunction to restrain the defendant from further trespass or interference. Subsequently, the present applicant/defendant appeared before the Court and filed an application under Section 11 of the Code of Civil Procedure (CPC), seeking rejection of the suit on the ground of res judicata. The defendant contended that the plaintiff had already instituted a suit earlier before the Civil Judge (Class 1), which culminated in a judgment and decree dated 28.02.2018, wherein the title of the plaintiff was declared and the entire land was partitioned, allotting the plaintiff her rightful one-third share. Challenging this 3 decree, the plaintiff had filed an appeal before the District Judge Raigarh, registered as Civil Appeal No. 35/2018, which was ultimately dismissed by the learned Appellate Court. Against this dismissal, the present applicant/defendant filed a second appeal before this Court, which remains pending for adjudication. The defendant argued that since the matter was already adjudicated and sub judice in the second appeal, the present suit was barred under the doctrine of res judicata and also under Order 2 Rule 2 CPC, which prohibits multiplicity of litigation and protects against harassment by repeated suits on the same cause of action. Despite the application filed by defendant under Section 11 CPC, the learned trial Court dismissed the application, erroneously holding that the application was filed merely to delay the trial. The defendant contended that this was a material irregularity and miscarriage of justice, as the Court failed to consider the settled legal principles regarding res judicata and multiplicity of litigation. The defendant asserts that the dismissal of the application ignored the fact that the plaintiff was attempting to litigate the same cause of action repeatedly, contrary to the legislative intent behind the relevant provisions of the CPC. Aggrieved by the dismissal of the application under Section 11 CPC, the present applicant/defendant has filed this revision petition before this Court, challenging the order of the learned trial Court on the grounds of material irregularity, non-application of mind, and error in law. The defendant prays for appropriate relief, including quashing of the suit and directions preventing multiplicity of litigation in respect of the said ancestral property. 3. Learned counsel for the applicant submits that the impugned order passed by the learned trial Court is patently illegal and without 4 jurisdiction. The learned Court has exceeded its jurisdiction by entertaining the matter in a manner that is wholly unwarranted and unjustified. The order demonstrates a clear lack of proper application of mind and appears to have been passed mechanically, without due consideration of the facts and the law applicable to the case. Such an order, being void ab initio, is liable to be quashed by this Court in exercise of its supervisory jurisdiction. The failure of learned Court to adhere to the limits of its jurisdiction has resulted in a miscarriage of justice, warranting interference. Further, the learned trial Court has committed a grave error of law by failing to appreciate the doctrine of res judicata. It is a settled principle that when a suit involving the same parties and the same subject matter has already been decided by a competent Court, the subsequent suit is barred by res judicata and cannot be entertained. In the present matter, the previous suit between the same parties regarding the identical property has already been adjudicated upon, and a final order was passed. The learned Court trial has erred in ignoring this fundamental legal principle. It is further submitted that the learned trial Court overlooked the provisions of Order 2 Rule 2 of the Civil Procedure Code, which stipulate that if a party waives any part of its claim in a previous suit, it cannot subsequently institute another suit on the same subject matter. The rationale behind this provision is to prevent multiplicity of litigation and to ensure that all claims arising out of the same transaction or cause of action are adjudicated in a single suit. The failure of the learned Court to consider this crucial provision has led to a perverse conclusion that has no basis in law. The principle enshrined in Order 2 Rule 2 is meant to streamline the judicial process and avoid fragmented litigation, which 5 the impugned order undermines. The learned trial Court also acted with material irregularity and without proper application of mind in concluding that the ambit of Section 11 of the CPC, dealing with res judicata, is not attracted in the present case. This conclusion is fundamentally flawed and contrary to established judicial precedents. Section 11 clearly bars the institution of a second suit between the same parties on the same cause of action once the matter has been finally decided. The failure to apply this statutory mandate has caused a miscarriage of justice. It is well-settled law that the doctrines of estoppel and res judicata are grounded in principles of public policy and justice. The doctrine of res judicata serves to prevent parties from relitigating issues that have already been judicially determined, thereby promoting finality and judicial efficiency. While res judicata and estoppel differ in some respects, both aim to uphold the integrity of judicial decisions and avoid contradictory judgments. He placed reliance upon the judgment of Hon’ble Supreme Court in the matter of K. Ethirajan (Dead) by Lrs. vs. Lakshmi and Others, reported in AIR 2003 SC 4295 has held that once a matter has attained finality, the parties are bound by the judgment and are estopped from reopening the same cause of action or issues that were essential to the decision. This principle extends not only to subsequent suits but also to subsequent proceedings in the same suit. Moreover, a plain reading of the plaint and the pleadings reveals that the present defendant had earlier filed a suit for securing their share in the property. In the said proceedings, the share of the present plaintiff was already granted, conclusively deciding the matter between the parties with respect to the same property. The subsequent suit filed by the plaintiff therefore 6 amounts to an impermissible attempt to relitigate the same subject matter. In view of the foregoing submissions, it is prayed that this Court may kindly be pleased to set aside and quash the judgment and order passed by the learned learned trial Court in Civil Suit No. A/52/2025 dated 23.07.2025 and reject the plaint, in the interest of justice. 4. The learned State Counsel submits that the present petition is devoid of merit, based on misconstrued interpretations of law, and deserves to be dismissed. At the outset, it is submitted that the impugned order passed by the learned trial Court is legally sound, reasoned, and passed after due consideration of the facts and circumstances of the case. The assertion of the applicant that the learned court acted beyond its jurisdiction or failed to apply its judicial mind is entirely misplaced and contrary to the record. The learned trial Court has exercised its jurisdiction judiciously and has rightly declined to reject the plaint at the threshold. The impugned order does not suffer from any jurisdictional error or procedural infirmity that would warrant interference by this Court. It is further submitted that the plea of applicant that the present suit is barred by the principle of res judicata is erroneous and unsustainable. A careful comparison of the causes of action, the nature of the reliefs sought, and the subject matter involved in the previous suit and the present one clearly reveals that they are neither identical nor substantially the same. The doctrine of res judicata under Section 11 CPC applies only when the matter directly and substantially in issue in the present suit has been directly and substantially in issue in a former suit, between the same parties, and decided by a competent Court. In the present case, no such identity of issues exists, and hence, the bar of res judicata cannot be invoked 7 mechanically or in the abstract. The learned trial Court has correctly observed this and rejected the plea of the applicant in this regard. 5. As regards the reference to Order II Rule 2 CPC, it is submitted that the argument advanced is premature and untenable. There is no conclusive material on record to demonstrate that any part of the claim now being raised was knowingly and expressly relinquished in the earlier proceedings. The applicability of Order II Rule 2 is a mixed question of fact and law, which requires full trial and cannot be decided at the stage of considering an application under Order VII Rule 11 CPC or otherwise summarily. The learned trial Court has rightly held that such issues are to be determined after framing of issues and appreciation of evidence, and not at the preliminary stage. The applicant also seeks to rely on settled doctrines of estoppel and finality of litigation, however, it is submitted that these principles cannot be invoked to stifle genuine claims before they are adjudicated on merits. No interference is warranted by this Court at this stage, particularly when no manifest injustice or perversity in the reasoning of the learned trial Court has been demonstrated by the applicant. In view of the foregoing submissions, it is most prayed that this Court may be pleased to dismiss the present application seeking to quash the impugned order dated 23.07.2025 passed in Civil Suit No. A/52/2025, as being devoid of merit, and permit the trial court to proceed with the suit in accordance with law, in the interest of justice. 6. At this stage, learned counsel for the applicant submits that, without prejudice to earlier grounds, this Court may be pleased to direct the learned trial Court to frame a preliminary issue regarding the plea of res judicata. It is a settled principle that where such an objection goes 8 to the root of the maintainability of suit, the learned trial Court should adjudicate it first. In the present case, the applicant has placed on record relevant pleadings and prior judgments showing that the subject matter has already been finally decided between the same parties. If the plea of res judicata is upheld, the entire suit would be rendered non-maintainable. Hence, it is prayed that the trial Court may be directed to frame and decide this issue as a preliminary one before proceeding further, in accordance with law. 7. I have heard learned counsel for the parties and have also perused the documents appended along with the revision. 8. This civil revision petition has been preferred by the applicant/defendant assailing the order dated 23.07.2025 passed by the learned trial Court in Civil Suit No. A/52/2025, whereby the learned Court proceeded with the suit without framing a preliminary issue or adjudicating upon the objection raised by the applicant under Section 11 of the Code of Civil Procedure, 1908 (CPC), relating to res judicata. 9. Upon consideration of the submissions made by learned counsel for applicant and the nature of the objection raised, this Court is of the considered view that the prayer made by learned counsel for the applicant appears to be reasonable and justified in the circumstances of the case. The objection based on res judicata, if sustained, strikes at the very root of the maintainability of the suit and goes to the jurisdiction of the Court to entertain the same. As such, it is both legally and procedurally appropriate that this issue be decided preliminarily under Order XIV Rule 2(2)(b) CPC, which specifically allows the Court to dispose of issues of law relating to the maintainability of the suit before entering into trial on other issues. 9 10.It is accordingly directed that the learned trial Court shall frame a preliminary issue with respect to the plea of res judicata under Section 11 CPC as raised by the applicant/defendant. Both parties, the plaintiff and the defendant, shall be given full opportunity to adduce oral and documentary evidence as they may be advised in support of or against the said objection. Upon conclusion of such proceedings, the trial Court shall adjudicate the said preliminary issue on its own merits, in accordance with law. If, after examining the pleadings, documents, and evidence, the learned trial Court comes to the conclusion that the suit is barred by res judicata, it shall pass appropriate orders accordingly. If not, the matter may proceed to trial on other issues as framed. 11. With these directions and observations, the present revision stands disposed of. 12.It is further clarified that the learned trial Court shall decide the issue of res judicata independently and uninfluenced by any observations made by this Court in the present order. This Court has not expressed any opinion on the merits of the controversy between the parties or the applicability of Section 11 CPC. The trial Court shall proceed in accordance with law and based solely on the material placed before it. 13. Let a copy of this order be sent to the learned trial Court forthwith for compliance. Sd/- (Amitendra Kishore Prasad) JUDGE Shayna