IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2025
(@ Special Leave Petition (C) No. 22091/2023)
G. SANKARABUSHANAM & ORS. ...APPELLANT(S)
VERSUS
E. DHAVAMANI & ORS. ...RESPONDENT(S)
O R D E R
Leave granted.
2. Briefly stated, the facts of the case are that appellants
herein filed the Civil Suit No. 326 of 2021 before the High Court
of Madras seeking the following prayers:
"a) to declare that the 1st Plaintiffs is the absolute
owner of Suit B Schedule Property;
b) to declare the Plaintiffs are the absolute owners of
Suit C Schedule Property and direct the Defendants
7,9,10,11 & 16 to hand over and deliver vacant possession
of the Suit C Schedule Property to the plaintiffs;
c) to declare the Decree passed in O.S.No.4747 of 1977 on
12.09.2007 by the VI Assistant City Civil Court, Chennai,
does not pertain and bind to the Properties comprised in
T.S.No.71/1, morefully described in the Schedule A
comprised of B & C hereunder;
d) for permanent injunction restraining the defendant/s,
their men, agents, servants representatives or any one
claiming through him/her/them or in trust for him/her/them,
from in any manner distributing plaintiff's peaceful
possession and enjoyment over the Suit Schedule B & C
Property;
Signature Not Verified
Digitally signed by
e) for the costs of the suit; and
NEETU SACHDEVA
Date: 2025.04.04
11:35:14 IST
Reason:
f) to pass such further or other orders as this Hon’ble
Court may deem fit and proper, in the circumstances of the
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case and thus render justice.”
3. The respondents herein filed an Application No. 4115 of 2021 in
C.S. No.326 of 2021 seeking rejection of the plaint under Order VII
Rule 11 of the Code of Civil Procedure, 1908 (“CPC”) on the ground
that the issues involved are already decided in earlier rounds of
litigation and the suit is therefore barred by res judicata. By
order dated 23.03.2022, the learned Single Judge dismissed the said
application filed by the respondents on the ground that under Order
VII Rule 11 of the CPC, the Court has to only look into the
averments in the plaint and not the defence taken by the
defendants. The High Court observed that since the plaint discloses
a cause of action, it dismissed the application under Order VII
Rule 11 of the CPC.
4. Being aggrieved, the respondents preferred an appeal before the
Division Bench of the High Court by filing OSA No.230 of 2022. By
impugned order dated 28.09.2022, the Division Bench of the High
Court allowed the appeal preferred by the respondents and set aside
the order passed by the learned Single Judge. Thereby, the
application under Order VII Rule 11 of the CPC was allowed, on the
ground that the property claimed by the appellants was already
decided in earlier rounds of litigation and the decree obtained in
the earlier round of litigation had attained finality. Hence, the
appellants have preferred the instant appeal.
5. We have heard the learned counsel for the appellants and the
learned counsel for the respondents and perused the material on
record.
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6. Learned counsel for the appellant(s) submitted that the
Division Bench of the High Court was not justified in setting aside
the order dated 23.03.2022 passed by learned Single Judge in
Application No.4115/2021 in CS No.326/2021.
7. She submitted that the application filed by the defendant(s)
for seeking rejection of the plaint was rightly dismissed by the
learned Single Judge. However, in the original side appeal, the
Division Bench of the High Court has set aside the said order and
consequently, the plaint filed by the appellant(s) herein has been
rejected on that ground that it is barred by law under Order VII
Rule 11(d) of the CPC for the reason that the plaint is hit by the
principle of res judicata.
8. Learned counsel for the appellant contended that if the
principle of res judicata was to apply to the plaint and
consequently, the suit was not maintainable, then it was necessary
that evidence be let in on that aspect of the matter. In support of
her submission, she placed reliance on the judgment of this Court
in the case of Srihari Hanumandas Totala vs. Hemant Vithal Kamat,
(2021) 9 SCC 99 and order dated 12.09.2023 passed in the case of
Keshav Sood vs. Kirti Pradeep Sood & Ors., Civil Appeal No.5841 of
2023.
9. Per contra, learned counsel appearing for the respondent(s)
submitted that the Division Bench of the High Court was right to
infer the fact that the latest suit filed by the appellant(s)
herein was not maintainable and barred by law inasmuch as the
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earlier proceedings between the parties had concluded the matter
and there was no further dispute which could have been raised by
the appellant herein. She therefore, submitted that Order VII Rule
11(d) of the CPC squarely applies to the facts of the present case
and hence there is no merit in this appeal.
10. By way of reply, learned counsel for the appellant(s) submitted
that the earlier suit and proceedings were in respect of Survey
Nos.71/2 and 71/3 whereas the present suit is in respect of Survey
Nos.71/1, 71/16 and 71/17. Although, the parties may be the same,
the subject matter of the present suit is distinct from the subject
matter of the previous suits. Hence, the appeal may be allowed.
11. We have considered the arguments advanced at the Bar in light
of material on record and the impugned order passed by the Division
Bench of the High Court as well as the learned Single Judge, who
has passed the order rejecting the application in the suit.
12. We find that having regard to the fact that the defendants were
seeking rejection of the plaint on the basis of the principle of
res judicata and had invoked Order VII Rule 11(d) of the CPC, it
was just and proper that the said objection raised by the
defendants-respondents herein ought to have been considered at
least as a preliminary issue by letting in evidence on the said
issue.
13. In the circumstances, we set aside the order of the Division
Bench of the High Court and restore the order of the learned Single
Judge in the suit. Consequently, C.S. No.326 of 2021 stands
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restored on the file of the High Court and Application No. 4115 of
2021 is dismissed.
14. The learned Single Judge, who is now seized of the suit is at
liberty to raise a preliminary issue on the maintainability of the
suit in the context of Order XIV Rule 2 of the CPC and after
recording evidence on the said preliminary issue and giving a
finding thereon, dispose of the suit in accordance with law.
15. Since, all parties to the suit are represented by their
respective counsel, they are directed to appear before the learned
Single Judge in the suit on 28.04.2025 without expecting any
separate notices from the said Court.
This appeal is disposed of in the aforesaid terms. No costs.
Pending application(s), if any, shall stand disposed of.
…………………………………………………………………J.
[B.V. NAGARATHNA]
…………………………………………………………………J.
(SATISH CHANDRA SHARMA)
NEW DELHI;
MARCH 25, 2025.
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ITEM NO.48 COURT NO.7 SECTION XII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 22091/2023
[Arising out of impugned final judgment and order dated 28-09-2022
in OSA No. 230/2022 passed by the High Court of Judicature at
Madras]
G. SANKARABUSHANAM & ORS. Petitioner(s)
VERSUS
E. DHAVAMANI & ORS. Respondent(s)
[TO BE TAKEN UP IMMEDIATELY AFTER FRESH CASES ARE HEARD.]
FOR ADMISSION and I.R. and IA No.169595/2023-EXEMPTION FROM FILING
C/C OF THE IMPUGNED JUDGMENT and IA No.169593/2023-EXEMPTION FROM
FILING O.T.
IA No. 169595/2023 - EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT, IA No. 169593/2023 - EXEMPTION FROM FILING O.T.
IA No. 197326/2023 - PERMISSION TO FILE ADDITIONAL
DOCUMENTS/FACTS/ANNEXURES
Date : 25-03-2025 This matter was called on for hearing today.
CORAM : HON'BLE MRS. JUSTICE B.V. NAGARATHNA
HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA
For Petitioner(s) :Ms. Nina Nariman, Adv.
Mr. Ajith Williyam S, Adv.
Mr. Samarth Suri, Adv.
Mr. B Karunakaran, Adv.
Mr. Anoop Prakash Awasthi, AOR
Ms. Shruti Vaibhav, Adv.
Mr. Shubham Dubey, Adv.
For Respondent(s) : Mrs. Anjani Aiyagari, AOR
Mr. Jayanta Kumar Biswas, Adv.
Mr. K. Sriram, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is disposed of in terms of the signed order.
Pending application(s), if any, shall stand disposed of.
(NEETU SACHDEVA) (DIVYA BABBAR)
ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)
(Signed order is placed on the file)
