SARASWATI DEVI Vs. MAHARAO BRAJRAJ SINGH

JUDGEMENT

(1.) THIS appeal is directed against the order dated 1. 3. 2007 passed by learned ADJ No. 1, Kota dismissing the civil suit No. 1/2000 on an application filed under O. 7 R. 11 CPC by defendant No. 6 Ijyaraj Singh son of Sh. Maharao Brajraj Singh on 15. 9. 2006.

(2.) THE facts leading to the present impugned order in brief are like this.

(3.) ON the other hand, strongly opposing the submissions of Mr. Ranjan, learned counsel for appellant, Mrs. Sonia Shandilya & Mr. Sandeep Pathak submitted that the application filed under O. 7 R. 11 CPC by defendant No. 6 Ijyaraj Singh was not only not maintainable but was barred by the principles of res judicata contained under O. 2 R. 2 CPC because similar application under O. 7 R. 11 CPC was filed by defendant No. 1 Maharao Brajraj Singh son of late Sh. Maharao Bhim Singh and father of defendant No. 6, which came to be rejected by the same Presiding Officer on 11. 8. 06. Yet after filing of the written statement, the defendant No. 6 who was impleaded in the suit as defendant, when he claimed through a Will alleged to have been executed by late Maharao Bhim Singh in his favour, filed the present application under O. 7 R. 11 on almost the same grounds but the same came to be allowed by the same Presiding Officer on 1. 3. 2007 by impugned order. They submitted that the suit for specific performance deserved a full dress trial and where the mixed questions of law and facts were involved, there was no question of dismissing the suit at the threshold on an application under O. 7 R. 11 CPC that too after written statement was filed by the defendants (in September 2006), six years after the filing of the suit.