2018 (2) TMI 2098 - SC - Indian Laws

Application Under Order VII Rule 11 of the Code of Civil Procedure, 1908 claiming rejection of the plaint - rejection on the ground that the suit filed by Respondent No. 1 was barred by res judicata and also Under Section 69 of the Indian Partnership Act, 1932 - HELD THAT - In the first instance, it can be seen that insofar as relief of permanent and mandatory injunction is concerned that is based on a different cause of action. At the same time that kind of relief can be considered by the trial court only if the Plaintiff is able to establish his locus standi to bring such a suit. If the averments made by the Appellant in their written statement are correct, such a suit may not be maintainable inasmuch as, as per the Appellant it has already been decided in the previous two suits that Respondent No. 1/Plaintiff retired from the partnership firm much earlier, after taking his share and it is the Appellant (or Appellant and Respondent No. 2) who are entitled to manage the affairs of M/s. Sen Industries. Reference made to the judgment of this Court in KAMALA AND ORS. VERSUS K.T. ESHWARA SA AND ORS. 2008 (4) TMI 800 - SUPREME COURT . That was a case wherein the trial judge allowed an application for rejection of the plaint in a suit for partition of family properties and the same was affirmed by the High Court as well. An appeal against the order of the High Court was filed before this Court. While examining the scope, ambit and exercise of power Under Order VII Rule 11 of Code of Civil Procedure, this Court held The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage. In a case like this, though recourse to Order VII Rule 11 Code of Civil Procedure by the Appellant was not appropriate, at the same time, the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decide the same in the first instance. In this manner the Appellant, or for that matter the parties, can be absolved of unnecessary agony of prolonged proceedings, in case the Appellant is ultimately found to be correct in his submissions. Appeal dismissed.

Summary

Issues Involved:
1. Application under Order VII Rule 11 CPC for rejection of plaint.
2. Barred by res judicata.
3. Barred under Section 69 of the Indian Partnership Act, 1932.
4. Barred under Order II Rule 2 CPC.
5. Maintainability of the suit based on previous judgments and decrees.

Detailed Analysis:

1. Application under Order VII Rule 11 CPC for rejection of plaint:
The appellant moved an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC), seeking rejection of the plaint on grounds that the suit was barred by res judicata and Section 69 of the Indian Partnership Act, 1932. The trial court dismissed this application, stating that rejecting the plaint on principles of res judicata without taking evidence was improper. The High Court affirmed this decision, emphasizing that the court should only consider the averments in the plaint and not the written statement when deciding an application under Order VII Rule 11 CPC.

2. Barred by res judicata:
The appellant argued that the suit was barred by res judicata due to previous judgments in Title Suit No. 103/1995 and Title Suit No. 268/2008, where the respondent's claims were dismissed. The trial court and the High Court both held that the issue of res judicata could not be determined without taking evidence and was a mixed question of law and fact. Therefore, it was not appropriate to reject the suit at the stage of an application under Order VII Rule 11 CPC.

3. Barred under Section 69 of the Indian Partnership Act, 1932:
The appellant contended that the suit was barred under Section 69 of the Indian Partnership Act, 1932, as M/s. Sen Industries was not a registered partnership firm. The trial court found that this issue required evidence and could not be decided at the preliminary stage. The High Court upheld this view, indicating that the court should not venture into examining documents or defenses raised by the defendant at this stage.

4. Barred under Order II Rule 2 CPC:
The appellant claimed that the suit was barred under Order II Rule 2 CPC, which prevents a plaintiff from splitting claims arising from the same cause of action into multiple suits. The trial court ruled that this issue could not be resolved without evidence. The High Court agreed, stating that the court should only consider the plaint's averments and not the written statement when deciding an application under Order VII Rule 11 CPC.

5. Maintainability of the suit based on previous judgments and decrees:
The appellant highlighted that earlier suits filed by the respondent were dismissed, and the respondent's appeal against the second suit was still pending. The trial court and the High Court both concluded that these previous judgments did not automatically bar the current suit at the preliminary stage. The High Court noted that the court should not look into documents surfaced for the first time at the defendant's behest when deciding an application under Order VII Rule 11 CPC.

Conclusion:
The Supreme Court upheld the decisions of the trial court and the High Court, affirming that the application under Order VII Rule 11 CPC for rejection of the plaint was correctly dismissed. The court emphasized that issues like res judicata and Order II Rule 2 CPC involve mixed questions of law and fact, requiring evidence and cannot be decided at the preliminary stage. The court also noted that the appellant could demonstrate the correctness of his averments by filing certified copies of the pleadings and judgments from the earlier suits. The appeal was dismissed, with the court suggesting that the trial court may consider taking up issues related to the maintainability of the suit first to avoid prolonged proceedings.