GHASILAL Vs. KASHI BAI

JUDGEMENT

(1.) BEING aggrieved by order dated 28-8-2001 passed by Civil Judge, Class-I, Raghogarh, District Guna in Civil Suit No. 104-A/98 whereby the preliminary issue relating to resjudicata has been decided against the petitioner, the present revision is filed.

(2.) THE short facts of the case are that respondent No. 1 filed a suit for declaration and possession against the petitioner and rest of the respondents. The suit was opposed by the petitioner on various grounds including on the ground that on earlier occasion, the respondent No. 1 filed a suit for the same relief which was numbered as Civil Suit No. 18-A/2001 and which was djsposed of vide order dated 4-12-1981 therefore the order passed in the earlier suit is having the force of res judicata. It was prayed by the petitioner that Suit be dismissed on this ground alone.

(3.) LEARNED Counsel below framed the issues and issue No. 10 is that "whether earlier suit No. 18-A/2001 is having a force of res judicata ? By the impugned order learned Court held that the order passed in C. S. No. 18-A/2001 is not having the force of res judicata. Learned Counsel for the petitioner submits that the learned Court below committed error in deciding the issue against the petitioner. Section 11 of the CPC reads as under :11. Res judicata.-- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.