1710cra124.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRA NO.124 OF 2011 SMT. SHANTABAI WD/O SHYAMSUNDAR PANDE AND OTHS V/S PRABHUDAYAL S/O RAMKHILAWAN PANDE AND ANR ................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................................... CORAM : R. K.DESHPANDE, J. DATE : 17th OCTOBER, 2011. This civil revision application challenges the order dated 2.2.2011 passed by the trial Court, rejecting the application Exh.39 filed by the defendants under Order VII Rule 11 of the Code of Civil Procedure for rejection of the plaint on the ground that the suit is barred by the principles of res judicata. It is not in dispute that earlier application filed claiming the same relief, which was Exh.15, was rejected by an order dated 17.5.2007. The earlier civil revision application, bearing no.103 of 2007 preferred before this Court, that came to be withdrawn with leave to raise appropriate defences on the same lines in the written statement. Accordingly, the written statement has been filed and the defence has been raised. The issue of res judicata has already been raised. In the light of this factual position, there was no propriety in filing another application under Order VII Rule 11 of the Code of Civil Procedure Exh.39 on the same ground. The trial Court has held that earlier order having been attained the finality, the second application on the ground of the principles of res judicata. cannot lie before it. ..........2/- 1710cra124.11 2 Shri S.K.Mishra, the learned Counsel appearing for the applicant has submitted that to the erroneous order passed by the trial Court on earlier occasion, the principles of res judicata would not apply. He has relied upon the decision of the Apex Court reported in Jai Singh Jairam Tyagi etc., vs. Maman Chand Ratilal Agarwal and others, AIR 1980 SC 1201, wherein it has been held that the erroneous decision does not operate as res judicata. The question of res judicata is a mixed question of law and fact and it can be decided only after permitting the parties to lead evidence. In view of this, since the issue of res judicata has already been framed, no jurisdictional error can be found with the order passed by the trial Court. The civil revision application is, therefore, dismissed. JUDGE BrWankhede ........../-