NAND KISHORE Vs. PANDU

JUDGEMENT

(1.) BY this petition filed under Article 226/227 of the Constitution of India, the petitioners have challenged the pregnability of the order dated 1-8-1991 passed by 1st Civil Judge Class 2 Betul and order dated 26-9-91 passed in revision by IInd Additional District Judge, Betul, dismissing the revision petition of the petitioner and affirming the order of Trial Court.

(2.) THE defendants/petitioners submitted an application in the Trial Court raising an objection that since earlier suit of plaintiffs was dismissed, the subsequent suit is not maintainable. The objection has been rejected and it was held by the Trial Court that subsequent suit is maintainable. The revision petition filed by the defendants before IInd Additional District Judge, Betul has been rejected by the impugned order.

(3.) THE unfolded facts of the case are that plaintiff- Pandu who is respondent No. 1 herein this petition, filed earlier a suit which was registered as Civil Suit Number 126-A/90, however, on being transferred to the Court of IIIrd Civil Judge Class 2, the number was changed and the suit was registered as Civil Suit Number 35-A/91. The said suit was dismissed on 10-5-91 for want of better particulars under Order 6 Rule 5, CPC. The petitioners have filed copy of the said order. Thereafter plaintiff-Pandu again filed present suit which has been registered as Civil Suit No. 65-A/91. On filing of the second suit, the present petitioners who are defendants in the Trial Court, submitted an application that the present suit, which has been subsequently filed, can not be tried because the matter which was directly and substantially in issue in the earlier suit between the same parties, was dismissed on 10-5-91 and, therefore, the present suit is barred by the principle of res judicata. The earlier suit was dismissed on account of non- furnishing the better particulars regarding sending the notice under Section 80, CPC.