A two Judge Bench of the Supreme Court presided by Justice Sudhanshu Dhulia and Justice J.B. Pardiwala passed a Judgment dated 29.03.2023 in Prem Kishore & Ors. Versus Brahm Prakash & Ors., Civil Appeal No. 1948 of 2013 and reiterated the guiding principles for deciding an application under Order 7 Rule 11(d) of the Code of Civil Procedure (CPC) (Rejection of plaint) and related principles.
In the present case, one, Samey Singh, father of the Appellants, rented out his property bearing House No. 163 situated at Village Dhakka, Kingsway Camp, Delhi, to the Respondents, Brahm Prakash, Chando Devi, Shiksha Devi, Laxmi and Kamlesh herein for residential purpose, on 27.12.1987 for a monthly rent of Rs. 1050/-.
However, the Respondents defaulted in paying the rent after February, 1993. Hence, Samey Singh filed an Eviction Petition No. 149 of 1996 before the Ld. Rent Controller, Delhi on 21.05.1996 under Section 14(1)(a) of Delhi Rent Control Act, 1958 ( “the Act of 1958”) (Protection of tenant against eviction). Samey Singh, the Plaintiff in the Eviction Suit failed to appear before the Rent Controller for the purpose of establishing the relationship of landlord and tenant between the parties. Thus, the said Eviction Petition was dismissed vide Order dated 27.01.1998.
Thereafter, upon the demise of Samey Singh (Original Plaintiff), the Appellants herein claiming as Successors-in-Interest of the Deceased-Original Plaintiff filed another Eviction Petition No. 136 of 2001 against the Respondents under Section 14(1)(a) of the Act of 1958 claiming inter alia arrears of rent from 01.03.1993 till the date of issuance of notice i.e. till 18.05.2001. The Respondents took the stance that the second Eviction Petition would be barred by the principles of res judicata. The Ld. Additional Rent Controller allowed the Plaint in the second Eviction Petition, vide Order dated 23.07.2002 on the grounds that (i) the said Petition was based on a fresh notice dated 18.05.2001 and on a separate cause of action and (ii) in the earlier Order dated 27.01.1998, there was no finding on merits with regard to the relationship of landlord and tenant between the Parties.
The Respondents challenged the aforesaid Order dated 23.07.2002 by filing Civil Revision Petition No. 1332 of 2002 before the High Court of Delhi. The High Court allowed the Civil Revision Petition vide Order dated 04.05.2010 and rejected the Plaint of the second Eviction Petition, on the ground that the same was hit by the principles of res judicata. Being dissatisfied with the aforesaid High Court Order dated 04.05.2010, the Appellants filed Civil Appeal No. 1948 of 2013 before the Supreme Court.
Whether the High Court was justified in rejecting the Plaint of the Eviction Petition on the ground that the same was barred by the principles of res judicata.
Supreme Court Observations:
At the outset, the Supreme Court observed that rejection of plaint is covered under Order 7 Rule 11 of the Civil Procedure Code and that Order 7 Rule 11(d) of CPC provides that the plaint shall be rejected “where the suit appears from the statement in the plaint to be barred by any law”. Hence, in order to decide whether the suit is barred by any law, it is the statement in the plaint which will have to be construed. The Court while deciding such an application must have due regard only to the statements in the plaint. Whether the suit is barred by any law must be determined from the statements in the plaint and it is not open to decide the issue on the basis of any other material including the written statement in the case.
The Hon’ble Supreme Court further observed that Section 11 of the CPC (Res judicata) enunciates the rule of res judicata i.e., a court shall not try any suit or issue in which the matter that is directly in issue has been directly or indirectly heard and decided in a ‘former suit’. Therefore, for the purpose of adjudicating on the issue of res judicata it is necessary that the same issue (that is raised in the suit) has been adjudicated in the former suit.
The Apex Court on the basis of the perusal of the authorities submitted by both the Parties, concluded the guiding principles for deciding an application under Order 7 Rule 11(d) of the CPC and summarized the same as follows:-
(i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to;
(ii) The defence made by the defendant in the suit must not be considered while deciding the merits of the application;
(iii) To determine whether a suit is barred by res judicata, it is necessary that
a) the ‘previous suit’ is decided,
b) the issues in the subsequent suit were directly and substantially in issue in the former suit;
c) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and
d) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and
e) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.
The Hon’ble Supreme Court in addition to the aforesaid principles, observed that the general principle of res judicata under Section 11 of the CPC contain rules of conclusiveness of judgment, but for res judicata to apply, the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit. Further, the suit should have been decided on merits and the decision should have attained finality.
The Hon’ble Supreme Court held that in the present case, the High Court committed an error in taking the view that the Order dated 23.07.2002 passed by the Ld. Additional Rent Controller could be said to be one passed in exercise of powers under Rule 3 of Order 17 of the CPC. Holding the above, the Apex Court discussed in detail the power conferred on Courts under Rule 2 and Rule 3 of Order 17 of the CPC to decide the suit on the merits for the default of a party and said that it is a drastic power which seriously restricts the remedy of the unsuccessful party for redress. It has to be used only sparingly in exceptional cases. In any contingency, the discretion is always with the Court to resort to Rule 2 or 3 respectively or to grant an adjournment for deciding the suit in a regular way in spite of default. Rules 2 and 3 respectively are only enabling provisions. In order to decide the suit on the merits, the mere existence of the conditions enumerated in Rule 3 alone will not be sufficient. There must be some materials for a decision on the merits, even though the materials may not be technically interpreted as evidence. Rule 3 comes into play only when presence is to proceed with the case, but default is committed in any one of the three ways mentioned in Rule 2 or explanation to Rule 2 is extracted. Those are cases in which some materials are there for the Court to decide the case on the merits and not cases where decision could only be for default. That is clear from a combined reading of Rules 2 and 3 respectively and the explanation. In the instant case, none of these conditions were present and the decision was evidently for default. Rule 2 alone is attracted.
The moot question in the present Appeal was whether the Eviction Petition was dismissed for default as such dismissal would certainly bar a fresh suit if instituted on the same cause of action. The Hon’ble Supreme Court held that the Order dated 23.07.2002 passed by the Rent Controller did not purport to be one of dismissal for default or on merits and it cannot be taken to mean other than what it purported to be. The said Order did not purport to be a final disposal of the Plaint but merely stopped the proceedings. Hence, the said Order was not a final decision within the meaning Order 17 Rule 3 of CPC.
Thus, based on the aforesaid reasoning, the Supreme Court allowed the Appeal and thereby, set aside the impugned Judgement dated 04.05.2010 of the High Court.
The Indian Lawyer
 “11. Rejection of plaint.— The plaint shall be rejected in the following cases:— (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9: Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”
 Rule 2. Procedure if parties fail to appear on day fixed.—Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. 1 [Explanation.—Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the case as if such party were present.
Rule 3. Court may proceed notwithstanding either party fails to produce evidence, etc.—Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed 2 [the Court may, notwithstanding such default, (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is, absent, proceed under rule 2.