Case Note & Summary
The revision application arose from an order of the 7th Joint Civil Judge, Senior Division, Nagpur, rejecting the defendant's application under Order VII Rule 11(d) read with Section 11 CPC. The defendant (applicant) contended that the suit filed by the plaintiff (respondent) was barred by res judicata because the same issue between the same parties had been adjudicated in an earlier suit, Spl. C.S. No.1423 of 2011. The plaintiff had purchased flat No.11 in Pankaj Apartment from the society in 2006, but the defendant allegedly broke open the lock and took possession. The plaintiff filed the earlier suit for possession and damages, but later withdrew it without liberty to file a fresh suit. The plaintiff then filed the present suit for the same relief. The defendant argued that the earlier withdrawal barred the suit. The trial court rejected the application, holding that res judicata did not apply as the earlier suit was not decided on merits. The High Court upheld this, reasoning that for res judicata to apply, the earlier suit must have been heard and finally decided on merits; withdrawal without liberty does not amount to a decree on merits. The court also noted that the parties and issues were the same, but the absence of a decision on merits was fatal. The revision was dismissed, and the suit was allowed to proceed.
Headnote
A) Civil Procedure - Res Judicata - Section 11 CPC - Withdrawal of Suit - The court considered whether a suit is barred by res judicata when the earlier suit on the same issue between the same parties was withdrawn without liberty to file a fresh suit. Held that for res judicata to apply, the earlier suit must have been decided on merits; withdrawal without liberty does not constitute a decree on merits and thus does not bar a subsequent suit (Paras 2-30).
Issue of Consideration
Whether the suit is barred by the principle of res judicata under Section 11 CPC when the earlier suit between the same parties on the same issue was withdrawn without liberty to file a fresh suit.
Final Decision
The High Court dismissed the revision application, upholding the trial court's order rejecting the application under Order VII Rule 11(d) CPC. The suit was allowed to proceed.
Law Points
- Res judicata
- Order VII Rule 11(d) CPC
- Section 11 CPC
- Withdrawal of suit without liberty
- Bar to fresh suit
- Same parties
- Same issue
- Decree on merits
Case Details
2017 LawText (BOM) (06) 164
Civil Revision Application No.71 of 2016
Dr (Smt) Shalini Phansalkar-Joshi, J.
Shri N. B. Kalwaghe for applicant, Shri D. V. Chauhan for non-applicant
Ajaykumar Kamalakant Pathak
Ramchandra Madari Katkamwar
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Nature of Litigation
Civil revision against rejection of application under Order VII Rule 11(d) CPC for dismissal of suit on ground of res judicata.
Remedy Sought
Defendant (applicant) sought dismissal of the suit as barred by res judicata.
Filing Reason
Plaintiff filed suit for possession and damages after defendant allegedly broke open lock and took possession of flat; defendant contended earlier suit on same issue was withdrawn without liberty, thus barring the present suit.
Previous Decisions
Trial court rejected defendant's application under Order VII Rule 11(d) CPC; earlier suit Spl. C.S. No.1423 of 2011 was withdrawn without liberty to file fresh suit.
Issues
Whether the suit is barred by res judicata under Section 11 CPC when the earlier suit was withdrawn without liberty to file a fresh suit.
Submissions/Arguments
Applicant/defendant argued that the suit is barred by res judicata as the same issue between same parties was decided in earlier suit Spl. C.S. No.1423 of 2011.
Respondent/plaintiff argued that the earlier suit was withdrawn without liberty to file fresh suit and thus not decided on merits, so res judicata does not apply.
Ratio Decidendi
For the principle of res judicata under Section 11 CPC to apply, the earlier suit must have been heard and finally decided on merits. Withdrawal of a suit without liberty to file a fresh suit does not result in a decree on merits and therefore does not bar a subsequent suit on the same cause of action.
Judgment Excerpts
In this revision application, some interesting question of law relating to application of the provisions of res judicata, as provided under Order XII of Code of Civil Procedure, are raised.
The revision is directed against the order passed by the 7th Jt. Civil Judge, Sr. Dvn. Nagpur in Spl. C.S.No.2 of 2015 thereby rejecting the application filed under Order VII Rule 11(d) read with Section 11 of the CPC.
Procedural History
Plaintiff filed Spl. C.S. No.1423 of 2011 for possession and damages; withdrew it without liberty to file fresh suit. Plaintiff then filed Spl. C.S. No.2 of 2015 for same relief. Defendant filed application under Order VII Rule 11(d) CPC read with Section 11 CPC, which was rejected by trial court. Defendant filed Civil Revision Application No.71 of 2016 in High Court.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Section 11, Order VII Rule 11(d), Order XII
