SRIHARI HANUMANDAS TOTALA versus HEMANT VITHAL KAMAT & ORS.

SRIHARI HANUMANDAS TOTALA versus HEMANT VITHAL KAMAT & ORS.

The plaint in OS No.138/2008 was not liable to be rejected under Order 7 Rule 11(d) because on a meaningful reading it disclosed that the plaintiff was aware of the earlier suit but at the time of institution of the subsequent suit no decree had been passed in the earlier suit and therefore the plaint did not, on its face, show it was barred by res judicata; an Order 7 Rule 11(d) application must be decided within the four corners of the plaint and the Trial Court and High Court were correct to dismiss the Order 7 Rule 11 application.

Parties
Appellant: SRIHARI HANUMANDAS TOTALA; Respondent: HEMANT VITHAL KAMAT & ORS.
Jurisdiction
India
Judgment Date
09 August 2021
Procedural Posture
Civil Appeal / Appeal From the Judgment and Order Dated 18 January 2021 of the High Court of Karnataka, Dharwad Bench in CRP No.100089 of 2019 Arising From an Order Dated 1 July 2019 on an Application Under Order 7 Rule 11 CPC
Outcome
Appeal dismissed; impugned judgment and order of the High Court dated 18 January 2021 upheld; application under Order 7 Rule 11 CPC dismissed
Legal Topics
Order 7 Rule 11 CPC, Rejection of Plaint, Res Judicata (section 11 Cpc), Maintainability, Preliminary Issues (order Xiv)
Civil Procedure Property Law Order 7 Rule 11 CPC Rejection of Plaint Res Judicata (section 11 Cpc) Maintainability Preliminary Issues (order Xiv)

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Parties

SRIHARI HANUMANDAS TOTALA

Appellant

HEMANT VITHAL KAMAT & ORS.

Respondent

Procedural Posture

Civil Appeal / Appeal From the Judgment and Order Dated 18 January 2021 of the High Court of Karnataka, Dharwad Bench in CRP No.100089 of 2019 Arising From an Order Dated 1 July 2019 on an Application Under Order 7 Rule 11 CPC

Legal Issues

  1. 1 Whether the plaint in OS No.138/2008 was liable to be rejected under Order 7 Rule 11(d) of the CPC as barred by res judicata
  2. 2 Whether an application under Order 7 Rule 11(d) can be decided by referring to materials beyond the averments in the plaint
  3. 3 What are the conditions for invoking res judicata as a ground for rejection of a plaint

Ratio Decidendi

The plaint in OS No.138/2008 was not liable to be rejected under Order 7 Rule 11(d) because on a meaningful reading it disclosed that the plaintiff was aware of the earlier suit but at the time of institution of the subsequent suit no decree had been passed in the earlier suit and therefore the plaint did not, on its face, show it was barred by res judicata; an Order 7 Rule 11(d) application must be decided within the four corners of the plaint and the Trial Court and High Court were correct to dismiss the Order 7 Rule 11 application.

Court Disposition

Appeal dismissed; impugned judgment and order of the High Court dated 18 January 2021 upheld; application under Order 7 Rule 11 CPC dismissed

Orders

  • The application under Order 7 Rule 11 CPC is dismissed
  • Liberty granted to the appellant to raise maintainability before the Additional Civil Judge, Belgaum and for that court to consider framing a preliminary issue under Order XIV and decide it within three months of raising the preliminary issue