CRP 364/2011 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY This application under Article 227 of the Constitution of India witnesses a chal lenge to the order dated 01.09.2011 passed by the learned Munsiff No.1, Dhubri i n Title Suit No.495/2007 rejecting the petitioner-plaintiff’s prayer for deletin g Issue Nos.6 & 7 framed in the suit. I have heard Mr. N. Choudhury, learned counsel for the petitioner and Mr. A.K. S arkar, learned Standing Counsel, N.F. Railways for the opposite party. Briefly, stated the run up of facts to the filing of the instant petition disclo ses that the petitioner had initially instituted T.S. No.320/1998 against the pr esent opposite party as well as the State of Assam for a decree for declaration of his right, title and interest in the land involved herein. The suit was decr eed in full, on 07.12.1999, whereby, not only the petitioner-plaintiff’s right, title and interest in the suit land was decreed, his possession thereof was a lso affirmed. A direction was issued as well for correction of the records of r ights to the above effect. While the matter rested at that, the opposite party having issued the auction no tice dated 12.11.2007 for the sale of the suit land, the petitioner being withou t any alternative instituted Title Suit No.495/2007 for a decree of permanent in junction prohibiting the opposite party, their agents etc. from entering into th e suit land or taking any step adverse to his right, title and interest. A decr ee for declaration that the auction notice dated 12.11.2007 was invalid was also sought for. The suit land common in both the proceedings was also described in the schedule to the plaint. The opposite party filed their written statement, inter alia challenging the rig ht, title and interest of the petitioner-plaintiff in this suit and accordingly, the learned trial Court framed Issues Nos.6 & 7 on hereinbelow: (vi) Whether the plaintiff is the original owner and possessor of the suit land ? (vii) Whether T.S. No.320/98 decree is valid ? Perceiving that these two issues in the litigational background, were unnecessar y and amongst others in the face of the doctrine of res judicata were not permi ssible to be adjudicated afresh in the present suit, the petitioner filed an app lication under Order XIV Rule 5 of the Code of Civil Procedure (for short herein after referred to as the Code) for the deletion thereof. No written objection was filed by the opposite party. By the impugned order how ever the prayer was rejected. Mr. Choudhury has argued that in the teeth of the decree passed in T.S. No.495/2 007 , the issue Nos.6 & 7 in the subsequent suit are redundant and therefore the learned Court below erred in law in holding otherwise. According to the learne d counsel, as in view of Section 11 of the Code engrafting the doctrine of res j udicata a fresh adjudication on Issue Nos.6 & 7 is barred in law, the learned Co urt below ought to have allowed the prayer for deletion thereof. The learned co unsel has argued that the decree in T.S. No.320/1998 has meanwhile attained fina lity, in absence of any challenge thereto and thus it is even otherwise impermis sible for the opposite party to question the petitioner-plaintiff’s right, title and interest in the suit land thus insist for an issue to that effect for deter mination. Mr. Sarkar, in response has argued that as the decree passed in the earlier suit was an ex parte one, it is not conclusive of the right, title and interest of t he petitioner-plaintiff and thus a challenge thereto was rightly taken by the op posite party in their written statement in the subsequent suit. As a issue in c ivil proceeding arises out of contrasting pleas of the parties in their pleading s, the learned Court below was perfectly right in holding that Issue Nos.6 & 7 w ere necessary for a final resolution of the dispute in the suit. The pleadings available on record and the arguments made have been duly consider ed. On being queried by this Court Mr. Sarkar has candidly admitted that the de cree in the earlier suit, has remained intact till date. In that view of the mat ter, it has attained finality vis-à-vis the issue of right, title and interest o f the petitioner-plaintiff in the suit land. Considering the framework of the subsequent suit and the reliefs prayed for therein, the issue with regard to rig ht, title and interest of the petitioner-plaintiff in the suit land does not war rant further adjudication. It transpires from the impugned order that though, i nitially in the plaint a prayer for declaration of right, title and interest had been made, the same was recalled by an amendment. Be that as it may, on the date on which the application under Order XIV Rule 5 o f the Code was filed by the petitioner-plaintiff, the plaint did not contain any prayer for the decree for declaration of his right, title and interest in the s uit land. No suit as on date as is submitted at the Bar has been instituted by the opposite party questioning the validity or legality of the decree passed in the earlier suit. There is thus no scope to adjudicate the same in the subseque nt one. Amongst others the bar of res judicata would surface and if the Issue Nos.6 & 7 are also to be adjudicated it would only be an abuse of the process o f the Court. In the above view of the matter, this Court is inclined to sustain the pleas rai sed on behalf of the petitioner. The impugned order is interfered with and but the Issue Nos.6 & 7 referred to hereinabove stand deleted. The petition is allow ed. The learned trial Court would proceed with the trial of the suit from the pr esent stage and make an endeavour to dispose of the same at the earliest. No co sts.