SMT. SHANTI BAI AGRAWAL Vs. RAM AVTAR AGRAWAL

JUDGEMENT

(1.) This second appeal has been admitted and following substantial questions of law were formulated for determination of the appeal, which are as under:-

(2.) Mr. Ram Kumar Tiwari, learned counsel appearing for the appellant/plaintiff would submit that both the Courts below have committed legal error in holding that the instant suit is barred by principles of res-judicata. He would further submit that in order to attract Sec. 11 of the Civil Procedure Code i.e. res-judicata, the defendant has to establish the plea of res-judicata by adducing legal evidence, as such a plea of res-judicata being mixed question of law and fact and it cannot be considered while considering the application under Order 7, Rule 11 (d) of the CPC. He would also submit that the suit properties in both suits are different as in the earlier Civil Suit No.25-A/1999, decided on 24.2.2001 suit land was Khasra No.1928/1, area 30X30=900 square feet, whereas in the instant suit, the suit property is Khasra No.1715/1, area 1350 square feet, therefore, order of the trial Court as affirmed by the First Appellate Court deciding the question of res-judicata at the stage while deciding the application under Order 7, Rule 11 (d) of the CPC deserves to be set aside.

(3.) Mr. K.A. Ansari, learned Senior Advocate with Mr. Devesh G. Kela, learned counsel appearing for the respondent, would submit that the plea of res-judicata is a pure question of law and plaint can be rejected under Order 7, Rule 11 (d) of the Civil Procedure Code applying the principles of res-judicata and therefore, the second appeal deserves to be dismissed.