RAMESHWAR RAM Vs. DASHRATH RAM

JUDGEMENT

(1.) Heard the learned counsel for the parties.

(2.) The present petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 22.6.2011 (Annexure-2) passed in Title Suit No. 473 of 2009 by learned Sub-Judge-VIII, Ranchi, whereby, the court below has rejected the prayer of the petitioner (original defendant) on the application filed by the petitioner under Section 10 r/w Section 11 of the Code of Civil Procedure that the Title Suit No. 473 of 2009 filed by the plaintiff respondent is hit by res judicata.

(3.) Learned counsel for the petitioner submitted that the respondent herein instituted title Suit No. 276/05 challenging the agreement dated 26.12.2002 and the said suit was withdrawn as per order dated 13.5.2009. Thereafter, another suit being Title suit No. 473 of 2009 was preferred by the same plaintiff for the same cause of action and the same subject matter and therefore, in view of the provision contained in Section 11 CPC, the principle of res judicata will apply. It is further submitted that the subsequent suit filed by the present respondent is not maintainable and therefore, an application was submitted before the Court below raising this plea but the court Below has failed to consider this aspect of the matter and thereby, rejected the application filed by the present petitioner. Learned counsel for the petitioner in support of his submission has referred to and relied upon the judgment delivered in the case of Kunjan Nair Sivaraman Nair Vs. Narayanan Nair and Other, 2004 3 SCC 277.