Supreme Court Lays Down Criterion To Exercise Power Under Order 7 Rule 11 Of CPC

CASE TITLE
PREM KISHORE &ORS VS BRAHMPRAKASH &ORS

DATE OF ORDER
MARCH 29, 2023

BENCH
JUSTICE J.B. PARDIWALA

PARTIES
APPLLEANT: PREM KISHORE &ORS
RESPONDENT: BRAHM PRAKASH & ORS

SUBJECT

The apex court in this case has critically analyzed the principle of restitution judicata. It has examined the interpretation of the principle in accordance with Order 7 Rule 11 of CPC, Order 17 Rule 2 and 3 of CPC, Order 9 of CPC and Sec 11 of CPC.

OVERVIEW

1. The present case has its genesis from the year 1998. The case is an appeal, under special leave, by the appellant who are the landlords against the respondent who are the tenants.
2. The case history begins when the father of the appellant filed an eviction petition in the year 1986 against the Respondent as they had not clear the arrears of the rent. In the written statement, of the said eviction, the respondent denied the relationship of landlord and tenant.
3. The plaintiffs despite given ample opportunities to establish the relationship of landlord and tenant failed to prove the same before the Rent Controller. Consequently, as per the circumstances the Rent Controller on 26.01.1998 passed an order stating that since the plaintiff did not put evidence to prove the landlord- tenant relationship and also not presented witnesses, the relationship remains in dispute and thus the petition is dismissed and PE is closed.
4. The successors of the original landlord MR.SAMEY SINGH, who was the plaintiff in the above petition, filed a new eviction petition after his demise under Section 14(1)(a) of the Act 1958 claiming the arrears of rent from pending since 1993 till the date of issuance of notice.A written statement was filed by the Respondent wherein they stated that the original landlord Mr. SAMEY SINGH, failed to prove the relationship of landlord and tenant and consequently the matter was decided. The same cannot be entertained again as it bars the principle of Res Judicata.
5. The Respondent (tenant) filed an application under Order 7 Rule 11 of CPC stating that the eviction petition filed by the appellants cannot be permissible on the ground of barring the principles of Res Judicata. The Additional Rent Controller dismissed the application stating that the second eviction petition was a fresh petition on different cause of action . Hence, there is no breach of Res Judicata principle.
6. Dissatisfied by the decision of Additional Rent Controller, the respondent filed a Civil Revision Petition in the High Court of Delhi. The HC allowed the revision petition on the ground that it was hit by the principles of Res Judicata. HC said that the landlords tried to do indirectly what can not be done directly. Thelegal maxim‘De non apparentibus et non existentibus eadem est ratio' was applied by the HC.
7. Dissatisfied by the same, the landlords filed an appeal before the Supreme Court of India.

ARGUMENTS ADVANCED BY APPLLEANT

The counselvehemently submitted that the HC committed an error while adjudicating the second eviction petition as not maintainable in law. The plaint is not to be rejected under Order 7 Rule 11(d) of CPC. The principle of Res judicata under Sec 11 of CPC is subject to mixed question of law and fact. It was also pleaded that the decision of first eviction petition by Rent Controller was not based on merits. Hence, the second eviction ismaintainable before the court.

ARGUMENTS ADVANCED BY RESPONDENT

The counsel of the respondent vehemently opposed the contentions of the counsel of appellant. It was claimed by the counsel that the HC has not committed any error in dismissing the second eviction petition. It was contended that in the litigation of First Eviction Petition, the plaintiff Mr. Samey Singh was given sufficient opportunities to present the evidence proving the relationship between the landlord and tenant. Since he failed to prove so, the decision was made accordingly. Once the adjudication cane on record, the successors cannot claim the contrary through fresh petition. This is clearly breach of Res Judicata principles. HC rightly rejected the plaint under Order 7 Rule 11(d).

JUDGEMENT

1. The court scrutinized Order 7 Rule 11 of CPC and held that the powers conferred under this cannot be applied in the present case. There are several other factors beside defendants ground of Res judicata that needs to be brought into the light.

2. The court held that plea of Res Judicata is beyond the scope of Order 7 Rule 11(d) because the former requires consideration of pleadings, issues and decision of the “previous suit” whereas in the latter only statements in the plaint is pursued.

3. Order 7 Rule 11(d) of CPC provides that the plaint shall be rejected only when the statement of the suit appears to be barred by law. Hence, to ensure whether suit is barred by law or not ,the statement of the plaint which needs to be put into consideration .

4. For the principle of Res Judicata to apply as per Sec 11 of CPC, it is important to check whether the matter directly and substantial in issue is same in the fresh suit as compared to the former suit or not. Also, whether suit has been decided on merits and has attained finality is to be administered. If not, then res judicata cannot be applied.

There are certain conditions to be satisfied

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) the issues were adjudicated in finality by competent authority.

5. Court put consideration on Order 17 Rules 2 and 3 by and said that this provision confers drastic power and should be sparingly used in exceptional cases. It should not be interpreted in a limited narrow sense. In the present case, the eviction petition dismissed by the Rent Controller was not decided under the above provision. It merely stopped the proceedings and the decision was not final within the meaning of Order 9 Rule 8 and Order 17 Rule 3 of the CPC.

6. The court allowed the appeal and the impugned judgement and decrees were set aside.

CONCLUSION

The case brought out technical interpretation and its applicability in context to the principle of Res Judicata. It has emphasized that just because an issue was rendered at first instance, it doesn’t bars the aggrieved to bring it back to the court of law. But this can only be done when there is an error in the decision by the competent authority. The principle of Res Judicata is not to be applied in restricted sense. It should be understood and applied along with others provisions of the law.