K SARANGAPANI Vs. ANNAMANENI KISHAN RAO

JUDGEMENT

(1.) Heard the Counsel on record.

(2.) Sri Veera Reddy, the learned Counsel representing the revision petitioner would maintain that though the application was filed under Section 11 read with Section 151 of the Code of Civil Procedure (here-in-after, in short, referred to as 'Code' for the purpose of convenience) praying the Court to dismiss the suit, virtually the application is one filed under Order VII Rule 11 (d) of the Code. The learned counsel would maintain that the bar of res judicata is specifically raised and in view of the fact that the plaint in the prior suit O.S. No.1769/2003 on the file of Principal Junior Civil Judge, Warangal was marked as Ex. A-1, the affidavit of the plaintiff therein as Ex.A-2, the judgment as Ex.A-4 and the decree as Ex.A-5 and also the notice issued as Ex.A-3, this would clearly establish that the prior suit also was in reiaiion to the same subject matter and the same question was put into issue. The Counsel also would maintain that the party in fact entered appearance and subsequent thereto he suffered an ex pane decree and that would not alter the situation in any way for the applicability of the doctrine of res judicata. The learned counsel placed strong reliance on R. Govindaswamy v. Kasthuri Amma and Radha Mohan v. Eliza Jane Hilp.

(3.) Per contra, Sri Venkateshwar Reddy, the learned counsel representing the respondent would maintain that this is not a case where on reading the averments made in the plaint, it can be said that the doctrine of res judicata would be attracted. Even otherwise, the learned Counsel would maintain that in the written statement filed also this defence was not specifically taken nor an issue was settled in this regard. At a belated stage this application was thought of only to further delay the matter. At any rate, the learned Counsel would maintain that the relief prayed for in the prior suit and the present suit being different, the question of applicability of res judicata would not arise. While concluding, the learned counsel would maintain that this question of applicability or otherwise of res judicata may have to be gone into at the appropriate stage after looking into the respective pleadings of the parties and the other aspects and hence the plaint cannot be rejected at the threshold. Even otherwise since substantial portion of the evidence already had been let in, it may not be appropriate to interfere with the further proceedings at this stage.