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TMI Blog2015 (8) TMI 1518X X X X Extracts X X X X X X X X Extracts X X X X ..... n statement. Thus, in the obtaining factual matrix there should have been a trial with regard to all the issues framed. The trial court is directed to proceed with the suit and dispose of the same within a period of six months hence - appeal allowed. - Civil Appeal No. 2089 of 2015 [Arising out of SLP(C) No. 6919 of 2008] - - - Dated:- 25-8-2015 - Hon'ble Mr. Justice Dipak Misra And Hon'ble Mr. Prafulla C. Pant, JJ. For the Petitioner(s) : Mr. Mahabir Singh, Sr. Adv., Ms. Preeti Singh, Adv., Mr. Gagan Deep Sharma, Adv., Mr. Nikhil Jain, AOR, Mr. Balaji Srinivasan, AOR. For the Respondent(s) : Mr. K.V. Vishwanathan, Sr. Adv., Mr. Sachin Jain, Adv., Dr. Kailash Chand, AOR, Ms. Adeeba Mujahid, Adv., Mr. Balaji Srinivasan, AOR JUDGMENT Dipak Misra, J. The facts relevant to be stated for the adjudication of the present appeal are that the contesting respondent Nos. 1 and 2 Inder Kumar and Yogendra Kumar, had filed a Civil Suit bearing No. 806 of 1993 against Krishan Chand Gupta, respondent No. 5, and Ved Prakash, original respondent No. 3, for a decree of specific performance of agreement to sell in respect of land measuring 20 kanals with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenge the same through a suit; that mere filing of objections to the execution petition, and an application for setting aside the earlier judgment and decree will not bar the suit, which is based on a different cause of action; and that as the civil suit was fixed for evidence of parties after framing of issues by the Court and a specific issue regarding maintainability, which is a mixed question of fact and law, had been framed, the same could not have been summarily decided at that stage. The Society also contended that the judgment in the earlier suit was vitiated due to fraud and collusion. 7. The High Court while rejecting the arguments of the Society came to observe that the learned Additional District Judge took an erroneous view that since the issues had been framed and the parties had been put to trial the question regarding maintainability of the suit on the principle of res judicata could not have been decided. Thereafter, the High Court referred to the factual scenario in chronology. The said facts need to be stated. As per the High Court, admittedly, the judgment and decree dated 19.09.1998 in Civil Suit No. 806 of 1993 filed by Yogesh Kumar and Inder Kumar again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar controversy repeatedly on the same facts and circumstances and in fact, the present suit is an abuse of the process of the court and the plaint has rightly been rejected by the learned Additional Civil Judge (Senior Division), Kurukshetra. The rule of conclusiveness also comes into play in the instant case. Once the matter, which was the subject matter of lis to determine by the competent authority, no party, thereafter, can be permitted to re-open in the subsequent litigation. Such a rule was brought into statute book with a view to bring the litigation to an end so that the other side may not be put to harassment. 9. We have heard Mr. Mahabir Singh, learned senior counsel for the appellant and Mr. K.V. Vishwanathan, learned senior counsel for the respondents. 10. We have referred to the decision of the High Court in extenso as it has used the words admittedly and scrutinized in detail the factual scenario. It is submitted by Mr. Mahabir Singh, learned senior counsel appearing for the appellant that the suit was filed seeking declaration of the judgment and decree dated 19.9.1998 in civil suit no. 806/92 as null and void being resultant of fraud and collusion. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal [see (Raja) Jagadish Chandra Deo Dhabal Deb v. Gour Hari Mahato [AIR 1936 PC 258], Medapati Surayya v. Tondapu Bala Gangadhara Ramakrishna Reddi [AIR 1948 PC 3] and Katragadda China Anjaneyulu v. Kattaragadda China Ramayya [AIR 1965 AP 117]. After so stating, the Court further observed that:- Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. Maybe, in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780] the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a law. 25. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact or law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for rejection of plaint should be entertained. 14. In this regard a reference to a three-Judge Bench decision in Balasaria Construction (P) Ltd. v. Hanuman Seva Trust [(2006) 5 SCC 658] and others would be frutiful. Be it noted the said case was referred to a larger Bench vide Balasaria Construction (P) Ltd. v. Hanuman Seva Trust [(2006) 5 SCC 662]. The order of reference reads as follows:- 4. This case was argued at length on 30-8-2005. Counsel appearing for the appellant had relied upon a judgment of this Court in N.V. Srinivasa Murthy v. Mariyamma [(2005) 5 SCC 548] for the proposition that a plaint could be rejected if the suit is ex facie barred by limitation. As against this, counsel for the respondents relied upon a later judgment of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow that it is barred by any law to attract application of Order 7 Rule 11. This is not so in the present case. 5. Noticing the conflict between the various High Courts and the apparent conflict of opinion expressed by this Court in N.V. Srinivasa Murthy v. Mariyamma and Popat and Kotecha Property v. State Bank of India Staff Assn. the Bench referred the following question of law for consideration to a larger Bench: Whether the words barred by law under Order 7 Rule 11(d) would also include the ground that it is barred by the law of limitation. 15. The three-Judge Bench opined that there was no conflict of opinion and thereafter the matter came back to the Division Bench for adjudication. The Division Bench reproduced what has been stated by the three-Judge Bench. It is as under:- Before the three-Judge Bench, counsel for both the parties stated as follows: It is not the case of either side that as an absolute proposition an application under Order 7 and Rule 11(d) can never be based on the law of limitation. Both sides state that the impugned judgment is based on the facts of this particular case and the question whether or not an application under Order 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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