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Sandeep Bhargava (Advocate & Notary)     23 May 2009

rejection of suit u/o 7 r 11 on resjudicata

can a suit be rejected on ground of resjudicata on an application u/o 7 r 11 cpc before filing written statement



 7 Replies

Swami Sadashiva Brahmendra Sar (Nil)     24 May 2009

Normally no.

it can be rejected under or. 7 r. 11 (d) only when from the bare reading of the plaint,  the suit appears to be barred by any law ( here s. 11 CPC).  but a prudent plaintiff / lawyer would not draft a plaint in such a manner.

1 Like

SANJAY DIXIT (Advocate)     24 May 2009

I agree with the views made by Tripathiji. Plaint should not be rejected on the ground of Res-judicata on an application made under U/o 7 R 11. Moreover it depends upon the pleadings made in the plaint.

1 Like

Swami Sadashiva Brahmendra Sar (Nil)     24 May 2009

Standard of scrutiny under O7 R11 can be compared  some what to satandard applied for Quashment of FIR in criminal casses. i.e. bare reading of plaint, nothing else = bare reading of FIR, nothing else.

2 Like

Ajay kumar singh (Advocate)     24 May 2009

Unless the defendant appears and files his/her W.S. and documents, the court can not settle the issues. The issue of res judicata can not be decided even as preliminary issue without admitting the plaint. Hence no plaint should be rejected on the point of res judicata. 

V.S.R.Deekshitulu (B.Sc, B.L)     24 May 2009

The question of Resjudicata is a question of law and fact. If the former is there then it requires ecidence and productin of documents. O 7 Rule 11 do not say about the rejection of plaint on the question of resjudicata. But it says that it can be rejected on question of law only i,e O 7 Rule 11( D

 

 

 

Sir. Order 7 Rule 11(d) is very clear as regards rejection of plaint on question of law only. No where it said about the rejection of plaint on the ground of Resjudicata. The Same is question of fact and law. It cannot be decided on the mere averments in plaint. Hence the court has to hear the defendant before doing son and the question of resjudicata can be tried as a preliminary issue, which the courts should do ordinarily.

 

 

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Swami Sadashiva Brahmendra Sar (Nil)     24 May 2009

yes sir. i agree with reasoning given by you and sri ajay singh.

1 Like

Srinivas Patnaik (Advocate Orissa High Court)     28 May 2009

I also agree with the view give by Tripathiji


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