Application under Section 11 of CPC in the Civil Suit when to be given and it’s drafting

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Application under Section 11 of CPC in the Civil Suit when to be given and it’s drafting

When the plea of Res Judicata may be raised

An application for dismissal of the suit under Section 11 of CPC must be made before at the proper stage of the proceedings. The plea of res- judicata may be waived by the party. So if the party to the suit not making the application under section 11 of the Code of Civil Procedure 1908 or not taking the plea of res- judicata in his pleading then it is deemed that the party has waived the plea of res judicata. It is very important to note here that the Court cannot suo motu decide the plea of res judicata, unless it is raised in defence.

It was held by the Chhattisgarh High Court in Kalawati Kotla Vs. Shokilal AIR 2013 Chh 12. that where the issue of res judicata was neither raised by the parties nor framed by the trial court, when the appellate court sue motu invoked and applied the principle of res judicata, it was held as not proper and the court was found to have no jurisdiction to answer the issue of res judicata, if it was not raised by the parties.

 

           IN THE COURT OF CIVIL JUDGE SR. DIV. KAPURTHALA

                 

                  ABC                              Vs.                       XYZ

            ….Plaintiff/Respondent              …..Defendant/Applicant

 

Subject:- Application for dismissal of the suit under section 11 of  the Code of Civil Procedure, 1908 being barred by res- judicata.

 

Respected Sir,

Most respectfully stated as under:-

1.     That the above noted Civil Suit is pending before this Hon’ble Court and is fixed for today.

2.     That the above noted suit has been filed by the plaintiff/respondent for possession of the suit land by way of specific performance of the contract of sale alleged to have been executed between the plaintiff/applicant and the defendant/respondent.

3.     That the plaintiff/applicant has raised the dispute in relation to the present suit property on the basis of the same contract of sale which matter was referred to the arbitration by the mutual consent of both the parties. In an arbitration proceedings, the arbitrator gave proper hearing to both the parties, recorded their statements and also examined the witnesses produced by both the parties.

4.     That finally the arbitrator vide his arbitral award dated 07/04/2019 held that there was no real agreement of sale and no advance amount was paid by the plaintiff to the defendant as alleged in the said agreement of sale. The certified copy of the arbitral award is attached with the present application.

5.     That in view of the relevant provisions of the Arbitration and Conciliation Act, 1996 the said award itself is a decree of the Civil Court within the meaning of Section 36 of Act and is executable as such. The plaintiff/respondent has also not filed any objections under section 34 of the Act against the said arbitral award and the said arbitral award had become final.

6.     That now it is clear that the issue decided in the above noted arbitration proceedings is directly and substantially in issue in the present suit, the parties are same, the cause of action and the issues to be decided are also same which have already been finally decided.

7.     That therefore the present suit is clearly barred under section 11 of CPC and is not maintainable.

Prayer:-

IN VIEW OF SUBMISSIONS MADE ABOVE, IT IS HEREBY MOST RESPECFULLY PRAYED

a. That the present suit may kindly be dismissed with heavy cost in the interest of justice and equity.

b. To pass any other further order which this Hon’ble Court may deem fit and proper in the interest of justice and equity.

 

Place_______                                                                Applicant/Defendant

 

                                   Through Counsel

                            

                               Ashish Kumar, Advocate

Verification:-

Verified that the contents of my application are true and correct and has not been falsely stated therein.

 

Verified at Kapurthala

Verified on _________                                                      Applicant/Defendant




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