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Issues: (i) whether a plaint can be rejected under Order 7, Rule 11(d) of the Code of Civil Procedure, 1908 on the ground that the suit is barred by res judicata; (ii) whether a new plea that the suit is barred by Order 23, Rule 3A of the Code of Civil Procedure, 1908 can be entertained in appeal when it was not taken in the application under Order 7, Rule 11.
Issue (i): whether a plaint can be rejected under Order 7, Rule 11(d) of the Code of Civil Procedure, 1908 on the ground that the suit is barred by res judicata.
Analysis: The bar of res judicata requires proper pleadings and the materials of the earlier proceeding to be brought on record. An application under Order 7, Rule 11 has to be decided on the averments in the plaint and the documents annexed to it. The defence of the opposite party cannot be examined at that stage to determine whether the suit is barred by res judicata. The question is also treated as a mixed question of fact and law.
Conclusion: The plaint could not be rejected under Order 7, Rule 11(d) on the plea of res judicata.
Issue (ii): whether a new plea that the suit is barred by Order 23, Rule 3A of the Code of Civil Procedure, 1908 can be entertained in appeal when it was not taken in the application under Order 7, Rule 11.
Analysis: The only ground taken before the trial court was res judicata. The objection under Order 23, Rule 3A was not raised in the application for rejection of the plaint. Allowing that new plea at the appellate stage would prejudice the appellant and permit the respondent to spring a point not put in issue before the trial court.
Conclusion: The new plea under Order 23, Rule 3A was not entertained.
Final Conclusion: The order rejecting the plaint was set aside, the suit was restored, and the matter was left open for decision on merits.
Ratio Decidendi: An application under Order 7, Rule 11 must be decided on the plaint alone, and a plaint cannot be rejected on a defence-based plea of res judicata or on a new objection not raised in the application before the trial court.
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