The Supreme Court in RISHABH CHAND JAIN & ANOTHER VS. GINESH CHANDRA JAINhas held that an order dismissing the suit on the ground of Res Judicata does not cease to be a decree on account of a procedural irregularity of non-framing an issue. Apex Court bench comprising of Justices Kurian Joseph and R.F. Nariman held that, such orders cannot be assailed in Revision, but only by preferring Appeal under section 96 of the Code of Civil Procedure.
In the instant case, the Trial court, allowing an Interlocutory Application filed by defendant, in a pending suit, for dismissal of the suit on the ground that the same is barred by Res Judicata and that there is no cause of action, dismissed the suit. The Plaintiff assailed this order in revision before the High Court contending that no appeal is maintainable against this order. The High Court observed that issue should have been framed on maintainability and the same should have been tried, and thereafter only, the suit could have been dismissed, in case the court upheld the contentions of the defendant/applicant. The Court held that the order is not appealable, but only revisable. The defendants then approached the Apex Court.
Referring to provisions of CPC, the Court observed that the impugned order has conclusively determined the rights of the parties with regard to one of the matters in controversy in the suit, viz., Res Judicata. The court said “True, it is not an order passed on framing an issue. But at the same time, there is adjudication on the controversy as to whether the suit is barred by Res Judicata in the sense there is a judicial determination of the controversy after referring to the materials on record and after hearing both sides. The impugned order dismissing the suit on the ground of Res Judicata does not cease to be a decree on account of a procedural irregularity of non-framing an issue. The court ought 8 Page 9 to treat the decree as if the same has been passed after framing the issue and on adjudication thereof, in such circumstances.”
The bench further observed “What is to be seen is the effect and not the process. Even if there is a procedural irregularity in the process of passing such order, if the order passed is a decree under law, no revision lies under Section 115 of the Code in view of the specific bar under sub-Section (2) thereof. It is only appealable under Section 96 read with Order XLI of the Code. 16. The order passed by the trial court is a composite order on rejection of the plaint as there is no cause of action and dismissal of the suit as not maintainable on the ground of Res Judicata. Both aspects are covered by the definition of decree under Section 2(2) of the Code and, therefore, the remedy is only appeal and not revision even if there is any irregularity in passing the order”
Read the Judgment here.