Shivram Agrawal Vs Rakesh Kumar Agrawal

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CGHC010259532026

2026:CGHC:29518

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CR No. 156 of 2026

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Shivram Agrawal S/o Late Shri Rajaram Agrawal Aged About 59 Years R/o 403/11/b, Alkapuri Society, G.I.D.C. Ankleshwar, District- Bharuch, Gujarat Through Power Of Attorney Holder Sanjay Gupta, R/o C-2, Gawri Apartments, Gali No. 1, Near Petrol Pump, Fafadhi, Raipur (C.G.)

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... Applicant/Defendant No.1

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versus

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1 - Rakesh Kumar Agrawal S/o Late Rajaram Agrawal Aged About 52 Years R/o 206, Kuber Apartment, Shankar Nagar, Raipur (C.G.)-- Plaintiff

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2 - Lalji Agrawal S/o Late Shri Rajaram Agrawal Aged About 64 Years R/o Alkapuri Society, G.I.D.C., Ankleshwar, District - Bharuch, Gujarat.. Defendant No.2

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3 - Vivek Kumar Agrawal S/o Late Shri Rajaram Agrawal Aged About 40 Years R/o Alkapuri Society, G.I.D.C., Ankleshwar, District- Bharuch, Gujarat... Defendant No.3 4 - C.S.I.D.C. Chhattisgarh State Industrial Development Corporation Limited Raipur, District - Raipur (C.G.).. Defendant No.4

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	... Respondents
For Applicant	: Mr. Malay Shrivastava, Advocate
For Respondent No.1	: Mr. Manoj Paranjpe, Sr. Advocate with Mr. Mayank Gupta, Advocate
For Respondent No.4	: Mr. Suyash Gupta, Advocate on behalf of Mr. Kashif Shakeel, Advocate

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(Hon’ble Shri Justice Naresh Kumar Chandravanshi)

Order on Board

13.07.2026

1. Heard.

Digitally
signed by
BINI
BINI PRADEEP
PRADEEP Date:
2026.07.16
10:54:39
+0530

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2. Present civil revision has been preferred under Section 115 of the Civil Procedure Code, 1908 by the applicant/defendant No.1 challenging the Order dated 01.04.2026 passed by 17^th Civil Judge, Jr. Division, Distt. Durg in Civil Suit No.281-A/2025, whereby the application filed by the applicant/defendant No.1 under Order VII Rule 11 (d) CPC has been rejected. (For sake of convenience, the parties would be referred hereinafter as per their status before the trial Court)

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3. Facts of the case, in brief, are that the plaintiff – Rakesh Kumar Agrawal filed a civil suit for declaration of his sole ownership of the petrol pump as per the partition deed including total land, right to run the petrol pump and seeking permanent injunction against the appellant/defendant No.1 – Shivram Agrawal, stating inter alia that earlier Civil Suit No.80A/2016 filed by the plaintiff before the 9^th Additional District Judge, Durg, for declaration, execution of sale deed and permanent injunction with regard to subject property, had been dismissed and counter suit filed by defendant No.1 has also been rejected. The appeal preferred by the plaintiff before the High Court was dismissed and the order was subsequently affirmed by the Hon’ble Apex Court upon dismissal of the Special Leave Petition. It was further averred in the plaint that pursuant to a family partition, a partition deed dated 12.07.2014 was executed between the parties. In that partition, suit land and the petrol pump fell to the share of the plaintiff (respondent No.1 herein) therefore, the plaintiff has filed instant civil suit on the strength of aforesaid partition deed dated 12.7.2014 executed between the parties, stating therein that cause of action arose on the date of execution of the partition deed.

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4. The defendant No.1 entered appearance before the trial Court i.e. 17^th Civil Judge, Jr. Division, and filed application under Order VII Rule 11 of CPC seeking rejection of plaint. It was contended that the plaintiff had earlier

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instituted Civil Suit No. 80A/2016 against the same parties, in respect of the same property, claiming the same reliefs on the basis of the very same partition deed dated 12.07.2014. That civil suit had been rejected by the 9^th Additional Additional District Judge, Durg vide judgment dated 17.9.2019 (Annexure-A/3). FA No.431/2019 (Annexure-A/4) filed by the plaintiff before the High Court was also dismissed and Special Leave Petition (Civil) Diary No.24525/2024 (Annexure-A/5) was also dismissed. Thus, the issue had already been attained finality, despite that the plaintiff has filed instant civil suit against the same parties, same disputed property and on the basis of same cause of action seeking similar relief. Hence, the civil suit filed by the plaintiff is barred by the principle of law of res judicata , therefore, the same may be dismissed.

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5. After providing due opportunity of hearing to both the parties, the learned 17^th Civil Judge, Jr. Division, Distt. Durg rejected the aforesaid application filed by the appellant/defendant No.1 on the ground that at this stage, the civil suit cannot be rejected on the basis of principle of res judicata, as it requires examination of identity of parties, identity of cause of action, identity of issues directly and substantially in issue and final adjudication on merits. As such, the issue raised by defendant No.1 involves mixed question of law and facts and said bar of res judicata is not evident from the plaint alone. In support of its conclusion, the trial Court relied in the case of Srihari Hanumandas Totala vs. Hemant Vithal Kamat, (2021) 9 SCC 99 . Aggrieved by the said order, the present appeal has been preferred.

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6. Learned counsel for the appellant/defendant No.1 submits that the plaintiff himself has specifically pleaded in the plaint that he had earlier instituted Civil Suit No. 80A/16 between the same parties seeking same relief on the basis of same cause of action. In the said suit, defendant No.1 had

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also filed a counter suit seeking similar reliefs. Both the suit and the counter suit were decided by the learned Trial Court, and the suit was dismissed. The appeal preferred by the plaintiff was thereafter dismissed by this Hon'ble Court, and the Special Leave Petition filed before the Hon'ble Supreme Court was also dismissed. It is further submitted that the plaintiff has filed copy of the judgment (Annexure-A/3) passed by the 9^th Additional District Judge, Durg in Civil Suit No.80A/2016 along with judgment passed by the High Court in FA No.431/2019 (Annexure-A/4). He further submits that perusal of the judgment passed by the earlier Court and pleading of both the parties reduced in judgment clearly show that all issues raised by the plaintiff in the present civil suit had already been raised by the plaintiff. He further submits that ground of claim of title of plaintiff is a partition deed dated 12.7.2014 executed between both the parties, but that partition deed had not been accepted by learned Court below in its earlier judgment dated 17.9.2019. He further submits that while deciding the application under Order VII Rule 11 CPC, only pleading in the plaint has to be seen, but the plaint also include documents annexed by the plaintiff along with the pleading. In this regard he placed reliance in the matter of Dahiben vs. Arvindbhai Kalyanji Bhanushali (Gajra) dead through Legal representatives and Others. (2020) 7 SCC 266 and Ramisetty Venkatanna and another vs. Nasyam Jamal Saheb and Others. (2024) 18 SCC 426. Referring to para 4 of the judgment dated 17.9.2019 (Annexure-A/3), learned counsel would submit that in the earlier suit filed by the plaintiff was also filed on the ground of cause of action dated 12.7.2014 along with other dates of cause of action. Instant suit has also been filed on the basis of same cause of action dated 12.7.2014 which is the date of execution of partition deed between the parties. Thus, since the issue has already attained finality between the same parties about

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the same relief on the ground of same cause of action, which is evident from the judgment (Annexure-A/3) of earlier suit, all the necessary ingredients relating to the principle of res judicata is attracted. Despite that, the learned trial Court has dismissed the application filed by defendant No.1. Hence, it is prayed that this revision may be allowed, impugned order may be set aside and instant civil suit filed by the plaintiff may be rejected. 7. In reply, learned Sr. counsel appearing for respondent No.1/plaintiff submits that application under Order VII Rule 11 CPC is required to be considered and decided only on the basis of pleading contained in the plaint and neither the defence taken by the defendant nor the submissions advanced on his behalf can be taken into consideration at that stage. He further submits that the plea of res judicata involves a mixed question of law and facts and cannot be entertained and decided while deciding the application under Order VII Rule 11(d) CPC. It is further submitted that adjudication of plea of res judicata requires consideration of pleading in the earlier suit, the issue involved therein, the decision rendered in the previous proceedings and therefore, such plea will be beyond the scope of Order VII Rule 11 CPC. Learned Sr. counsel further submits that res judicata though relating to the jurisdiction of the Court, but it is a mixed question of law and facts and therefore, cannot be decided at this stage. It is further submitted that though pleading in respect of previous suit was specifically made in the plaint, but since the plea of res judicata has not been raised in the plaint, hence, it cannot be entertained. He lastly submits that the issue of cause of action was not raised by the appellant in the application under Order VII Rule 11 CPC, only the issue of res judicata has been raised. To substantiate his contention, learned Sr. Counsel placed reliance in the case of Soumitra Kumar Sen vs. Shyam Kumar Sen and Others. (2018) 5 SCC 644; Srihari

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Hanumandas Totala vs. Hemant Vithal Kamat and Others. (2021) 9 SCC 99; Dr. Somesh Pandeya & Others. Vs. Viseshwar Prasad Pandeya (Died) thro. Lrs. (2017) 1 CGLJ 534 [Second Appeal No.233 of 2014 dated 03.10.2016] and Pandurangan vs. T. Jayarama Chettiyar and Another (2025) 10 SCC 279.

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8. Heard learned counsel for the parties and perused the material available on record.

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9 . The objection raised by the appellant/defendant No.1 is that the instant suit filed by the plaintiff/respondent No.1 is barred by the principle of res judicata, as a similar issue between the same parties, arising out of same cause of action and seeking same relief, had already been decided and rejected in Civil Suit No.80A/2016 (Annexure-A/3) vide judgment and decree dated 17.9.2019, which has been upheld by the High Court as well as the Hon’ble Apex Court, as such, the civil suit is barred by law.

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10. It would be apposite to reproduce the provisions of Section 11 of the Code of Civil Procedure, 1908, which reads as follows:-

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11. Res judicata - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

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Explanation I .- xxx xxx xxx

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Explanation II. - For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

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Explanation III. - The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

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Explanation IV. - Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

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Explanation V. - Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

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Explanation VI. - xxx xxx xxx Explanation VII. - xxx xxx xxx

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Explanation VIII . - An issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suits, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

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11 . The Hon’ble Supreme Court in the case of Srihari Hanumandas Totala (Supra) , after considering various judgment has held in para 25 as under:-

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“ 25. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarised as follows:

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25.1. 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.

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25.2. The defence made by the defendant in the suit must not be considered while deciding the merits of the application.

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25.3. To determine whether a suit is barred by res judicata, it is necessary that (i) the "previous suit" is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit.

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25.4. 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.”

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The aforesaid case law has also been relied by the learned trial Court.

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12. A perusal of the aforesaid provisions of Section 11 of the CPC and the law laid down by the Apex Court makes it evident that, to reach a conclusion as to whether the instant suit is barred by law, the Court is required to determine whether the earlier and the subsequent suits involve the same parties, the same cause of action, the same issues directly and substantially in issue, and the same reliefs, including any relief that ought to have been claimed in the earlier suit. The learned trial Court has rightly held in the impugned order that determination of the plea of res judicata necessarily requires examination of the identity of the parties, the identity of the cause of action, the identity of the issues directly and substantially in issue, and final adjudication on merits.

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13. In order to establish aforesaid facts, the learned counsel for the appellant would refer to the judgment (Annexure-A/3) passed in earlier Civil Suit No.80A/20216. However, to find out necessary ingredients to attract the principle of res judicata , as required under Section 11 of CPC, things cannot

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be arrived at only on the basis of judgment (Annexure-A/3) rendered in the earlier suit. To ascertain as to whether the circumstances in both the suits are one and the same, as has been enunciated in Section 11 of CPC, it is necessary to examine the original plaint of earlier civil suit as well as written statement, the issues ought to have been examined and pleadings in this regard has to be exchanged between the parties. Only upon such examination, proper conclusion would be arrived at.

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14. In the instant case, though the plaintiff has stated in his plaint that previous civil Suit No.80A/2016 has been decided between the same parties and involved same issue, cause of action and relief, but these facts cannot be determined only on the basis of judgment (Annexure-A/3). The application under Order VII Rule 11 CPC is required to be decided within four corners of the plaint as the plea of res judicata can be established only after the necessary pleadings are completed and the relevant evidence is adduced, as it is a mixed question of law and fact.

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15. In view of the above discussion, I do not find any perversity or illegality in the impugned order passed by the learned trial Court. Consequently, the present civil revision, being devoid of merit, is hereby dismissed.

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Sd/-

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(Naresh Kumar Chandravanshi) Judge

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Bini

Shivram Agrawal v. Rakesh Kumar Agrawal

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Shivram Agrawal v. Rakesh Kumar Agrawal

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