Manu and Others vs Ramdev and Others

N.K. Agarwal, J.—This revision arises out of the impugned order dated 10-05-2008 passed in Civil Suit No. 56-A/2007 by 1st Civil Judge Class II, Jagdalpur whereby and whereunder, the applicants'' application under Order 7 Rule 11 of C.P.C has been dismissed.

Facts of the case, in brief, are that in a suit preferred by the respondents/plaintiffs, the applicants herein raised an issue of res judicata by filing application under Order 7 Rule 11 read with section 151 of C.P.C in which it has been stated that the instant suit is barred by principle of res judicata in the light of judgment and decree dated 29-09-2001 passed in Civil Suit No. 34-A/2000 by IInd Civil Judge Class II, Jagdalpur. It was further stated that in the previous suit, the same issues have been raised, was between the same parties, filed for the same relief, therefore, the instant suit is liable to be rejected at threshold. The prayer was opposed by the plaintiffs on the ground that the issue of res judicata cannot be decided merely on the basis of plaint allegations. It needs consideration of facts and therefore, this issue is required to be decided after framing a specific issue in this regard and after recording evidence thereupon.

The trial Court after hearing the parties, dismissed the application reserving the issue raised to be decided after recording of evidence in the case.

Shri Manoj Paranjpe, learned counsel for the applicants would submit that a bare perusal of the plaint would reveal that the instant suit is barred by principle of res judicata.

Per contra, learned counsel for the respondents supported the impugned order.

Having heard learned counsel for parties and having perused the order, I do not find any substance in the revision. Suffice it to say that the issue of res judicata is essentially a mixed question of fact and law, required to be raised in the pleading, thereafter framing specific issue, the same is required to be tried on its own merits based on the evidence adduced by the parties. The Supreme Court in the case of Madhukar D. Shende Vs. Tarabai Aba Shedage, has observed in para 14 of its judgment as under :-

..............Res judicata is a mixed question of fact and law. We do not find the plea of res judicata having been raised in the plaint. Copies of pleadings and issues framed in the earlier suit have not been tendered in evidence and we do not find any issue on res judicata having been framed and tried between the parties in the present suit..........

For the foregoing in the considered opinion of this Court, learned Court below has not committed any jurisdictional illegality or material irregularity in passing the impugned order.

The revision fails and is dismissed.

Consequently, interim order dated 24-06-2008 passed by this Court also stands vacated.