Dismissed¶29

Shirish Ramchandra Rajopadhye and Another v. Vishnu Babu Raykar and Others

Bombay HC3 Mar 2025CRA/89/2022

Case brief

AI extract

What is this about?

Bombay High Court, Aurangabad Bench; CRA No. 89 of 2022 (decided 03-03-2025) by S. G. Chapalgaonkar, J.; Shirish Ramchandra Rajopadhye (died) through LRs Yamini Shirish Rajopadhye v. Vishnu Babu Raykar; rejection of plaint; Order VII Rule 11 CPC and Order VII Rule 11(d) with Section 11 CPC; res judicata; plaint and appended documents only; written statement not germane; Srihari Hanumandas Totala vs. Hemant Vitthal Kamat, AIR 2021 SC 474; Regular Civil Suit No. 308 of 2008, Exhibit-133; revision application rejected.

What did the court decide?

An application under Order VII Rule 11 of CPC can be decided merely on the basis of the pleading in the plaint and the documents appended thereto; the defence raised in the written statement or any other document is not germane to that enquiry. ¶21

Shirish Ramchandra Rajopadhye and Another Vs Vishnu Babu Raykar and Others — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶29

Issue for consideration

Whether the Trial Court rightly declined the Applicants' prayer for rejection of plaint under Order VII Rule 11 of Code of Civil Procedure, 1908 in Regular Civil Suit No. 308 of 2008 (challenged by way of this Civil Revision Application). +1 more

¶15

Court's answer

No fault can be found in the impugned order; however, if the res judicata issue is raised in the written statement, it would be necessary for the Trial Court to frame that issue and render a finding on it along with the other issues framed in the suit.

¶28

Ratio / Principle

¶21

Key takeaways

Relying on Srihari Hanumandas Totala (SC), adjudication of a Section 11 CPC (res judicata) application requires reference to the pleadings and material of the previous suit; such a finding can be arrived at during the course of trial; therefore, the issue of res judicata is not germane to a proceeding under Order VII Rule 11 of CPC.ratio¶27

Detailed headnote1 paragraphs

Civil Revision Application dismissed. Revision against Trial Court's order dated 15.02.2022 below Exhibit-133 in Regular Civil Suit No. 308 of 2008 declining rejection of plaint under Order VII Rule 11 CPC on the plea that the suit is barred by res judicata (Section 11 CPC): the Court held that an Order VII Rule 11 application is decided only on the pleading in the plaint and documents appended thereto, and that the defence in the written statement or any other document is not germane to such enquiry. Following Srihari Hanumandas Totala (AIR 2021 SC 474), adjudication of a Section 11 CPC plea requires reference to the pleadings and material of the previous suit, a finding reachable during trial; hence the res judicata bar is not germane to Order VII Rule 11. Impugned order sustained; Trial Court to frame and answer the res judicata issue if raised in the written statement, along with the other issues.

¶1

41-CRA.89.2022.odt

¶2

2025:BHC-AUG:6794

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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41 CRA NO.89 OF 2022

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Shirish Ramchandra Rajopadhye (Died), through L.Rs. 1-A] Yamini Shirish Rajopadhye & Anr. ….Applicants

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Versus

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Vishnu Babu Raykar & Ors.

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....Respondents

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Mr. Ravibhushan P. Adgaonkar, Advocate for the Applicants.

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Mr. D. B. Bhange, AGP for Respondent-State.

¶11

Mr. Sanjay N. Gaikwad h/f. Mr. Niteen V. Gaware, Advocate for R/1 to 4, 5, 7 to 13.

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CORAM : S. G. CHAPALGAONKAR, J. DATED : 3rd MARCH 2025

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P.C.:-

¶14

Heard Mr. Adgaonkar, learned Advocate for the Applicants.

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The Applicants impugns the order dated 15^th February 2022 passed below Exhibit-133 in Regular Civil Suit No.308 of 2008 by which the prayer of Applicants seeking rejection of plaint invoking Order VII Rule 11 of Code of Civil Procedure, 1908 has been declined

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by the Trial Court. [Hereinafter parties are referred as per original status in the suit for brevity and convenience].

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Mr. Adgaonkar, learned Advocate for the Applicants submits

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that the Plaintiffs have previously instituted suits in respect of same property seeking relief of perpetual injunction. There is reference in Tauseef 1 of 3

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41-CRA.89.2022.odt

¶20

the plaint as regards to the previous suits. The issues which are decided in previous suit are now again raised in the present suit. According to him, the decree passed in previous suit would operate as res-judicata in present case. Defendant No.4 had filed application seeking rejection of plaint under Order VII Rule 11(d) read with Section 11 of CPC. However, Trial Court rejected application on the ground that copies of the plaint in previous suit are not made part of present plaint. As such, plaint in previous suit cannot be considered as documents appended to plaint in present suit. Mr. Adgaonkar would further submit that now issues have been framed by Trial Court, but issue as to bar of suit by res-judicata is not framed.

¶21

Considering submissions advanced, it is apparent that Defendant No.4 is seeking rejection of plaint on the ground that suit is barred by principles of res-judicata as enshrined in Section 11 of CPC. Defendant No.4 is relying upon the pleadings in previous suit and judgments delivered therein to demonstrate that issues raised in present suit have already been adjudicated. It is trite that application under Order VII Rule 11 can be decided merely on the basis of pleading in the plaint and documents appended thereto. Defence raised in written statement or any other document is not germane to the enquiry under Order VII Rule 11 of CPC. The Supreme Court of India in case of

¶22

Srihari Hanumandas Totala Vs. Hemant Vitthal Kamat & Ors.¹ as

1 AIR 2021 SC 474

Tauseef

2 of 3

41-CRA.89.2022.odt

referred by Trial Court has laid down that, to adjudicate an application of Section 11 of CPC, the reference to the pleading and material in previous suit is required, such finding can be arrived during the course of trial and, therefore, the issue of res-judicata is not germane to the proceeding under Order VII Rule 11 of CPC.

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In that view of the matter, no fault can be found in the impugned order. However, if such an issue is raised in the written statement, it would be necessary for the Trial Court to frame it and render finding on such issue along with other issues framed in the suit.

¶29

In that view of the matter, there is no merit in this revision application, the same stands rejected.

¶30

Tauseef

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3 of 3

Shirish Ramchandra Rajopadhye and Another v. Vishnu Babu Raykar and Others

Case brief

What is this about?

What did the court decide?

Shirish Ramchandra Rajopadhye and Another v. Vishnu Babu Raykar and Others

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

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Procedural history

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