KACHRA Vs. AYUB

JUDGEMENT

(1.) The instant civil revision petition under Sec. 115 of the CPC has been filed by the petitioner-defendant no.1 against the order dtd. 23/9/2022 passed by learned Civil Judge, Sagwara, District Dungarpur (hereinafter referred to as the learned Trial Court) in Civil Original Suit No. 47/2022 whereby the learned Trial Court dismissed the application filed by the petitioner-defendant no. 1 under Sec. 11 read with Order 7 Rule 11 and read with Sec. 151 of the CPC.

(2.) Learned counsel for the petitioner submits that the learned Trial Court has erred in law while passing the impugned order. It is submitted that the suit is barred by res-judicata because a similar suit for permanent injunction based upon same facts was dismissed by the learned Trial Court vide judgment and decree dtd. 18/11/2005. The cause of action in both the suits is the same. It is further submitted that the former suit which was decided on 18/11/2005, was filed by the father of respondentsplaintiffs against the family members of the petitioner-defendant and was based on the same cause of action. Under the provisions of Sec. 11, CPC, a subsequent suit is barred if a former suit is decided between the same parties, or between parties under whom they or any of them claim litigating under the same title if the matter in issue is directly and substantially the same as in the former suit. In the present suit, the parties are legal heirs of the parties in the former suit and the subject matter of both the suits is same. Thus, the present suit is barred by res-judicata. Lastly, it is submitted that the learned Trial Court has erred in applying the provisions of Sec. 11 CPC in its correct perspective and thus the impugned order may be quashed and set aside. In support of his contentions, learned counsel relied upon the following judgments:

(3.) Thus, in view of the aforenoted legal submissions, it is prayed by the learned counsel that the present revision petition may be allowed and the impugned order dtd. 23/9/2022 passed by the learned Trial Court may be quashed and set aside and the application filed by the petitioner under Sec. 11 read with Order 7, Rule 11 and read with Sec. 151 CPC seeking rejection of the plaint may be allowed.