HIGH COURT OF CHHATTISGARH AT BILASPUR CivilRevJsion16of2007 Ashok Kumar Bhalla Vs. Satish Kumar Bhalla and another PostforOrder: Ij .05.2007 ^_. ——• • -1— Sd/- 1 Dilip Raosaheb Deshmukh Judge in:.:::_;s::. ^ HIGH COURT OF CHHATT1SGARH AT BILASPUR Single Bench : Hon'ble Shri Dilip Raosaheb Deshmukh, J. Applicant DeTendant No-1 Civil Revision No.16 of 2007 Ashok Kumar Bhalla, S/o Late Jashwant Singh Bhalla, aged about 50 years, R/o Gondpara, Tahsil & District Bilaspur (C.G.) versus 1. Satish Kumar Bhalla, S/o Late Jashwant Singh Bhalla, Aged about 60 years. Presently residing at Behind Kshatriya Hardware Ratanpur, Tahsil Kota. Distt. Bilaspur (C.G.) 2. Smt. Tripta Rani, W/o Surya Kumar Bharwesh, Agedabout 52 years, R/o Mandir Chowk, Jarhabhata, Bilaspur REVISION UNDER SECTION 115 CIVIL PROCEDURE CODE Respondents Plajnti^ Present : Shri Gautam Bhaduri, counsel for the applicant Shri Vivek Shrivastava, counsel for the respondent No.1 ORAL ORDER (Passed onthis ,K>-.;dayofMay,2007) The validjfy of the order dated 19.01.2007 in Civil Suit No. 2A of 2006 by 2nd Additional District Judge, Bilaspur, is under challenge in flhis Civij Revision. 2. Admittedly, applicant - Ashok Kumar Bhalla and respondent No.1 - Satish Kumar Bhalla are brothers. Respondent No.2 is their sister and is married. ' I 3. Applicant - Ashok Kumar Bhalla had filed a Civjl Suit No.40-A of 2004 before the 5th Additional District Judge, Bilaspur, for declaration of title and permanent injunction against the respondente herejn on the basis of the execution of an unregistered Will dated 21.02,1996 by his mother Smt. Shakuntala Rani relating to the suit house situated in Gondpara. The respondents herein resisted the suit on the ground that Smt. Shakuntala Ranj had executed a registered Will on 11.02.1997 whereunder parti^ were the joint owners and in possession of the suit house. The respondents, however, remained absent on the date of hearing and were proceeded ex parfe. An ex parte judgment and decree was passed in favour of the applicant herein for declaration of tjtle and permanent injunction on the basis of execution of Witl dated 01.12.1^^ by Smt. Shakuntala Rans. 4. The respondent No.1 herein filed an application under Order 9 Rute 13 C.P.C. for setting aside the ex parte judgment and decree dated 7.4.2005 passed in Civil Sujt No. 40A of 2004 on the ground of sudden demise of his counsel and also on the ground that the Civl Suit was transferrod to the Court of 5th Additional District Judge, Bilaspur and on 4.1.2005 the transferee Court had ordered issuance of notice to the defendant/respondent No.1 herein on submission of proc^s form which order was not complied with and as a result notice was not issued to the respondent No.1. The application under Order 9 Rule 13 C.P.C. was pending on the date of the impugned order. - 5. It is stated in the petition for revision that in the year 2004 the non- applicant No.1 had fited a CMI Suit No.2A of 2006 claimjng partition and possession of 1/3rd share in the suit house on the basis of a registered Will datect 11.02.1997 executed by Smt. Shakuntala Rani. The applicant herein fited an application on 20.12.2006 before the 2nd Additional District Judge, Bilaspur in Civil Suit No. 2A of 2006 for dismissal of suit on the grouncl that in an eariier Civil Suit No. 40A of 2004 between the same parties and relating to the same subject matter, an ex parte decree had been passed on 7.4.2005 irt favour of the applicant, and therefore, under Section 11 C.P.C., the subsequent suit was barred on the principle of res judicata. 6. The learned tower Court rejected the application dated 20.12.2006 filed by the applicant herein sotely on the ground that since an appjication under Order 9 Rule 13 C.P.C. for setting aside the ex partejudgment and decree dlated 7.4.2005 passed in Civil Suit No. 40A of 2004 was pending, the judgment and decree passed in Civil Suit No. 40A of 2004 would not operate as resjudicata jn the subsequent suit. 7. Section 11 of C.P.C. reads as under: 11. Res Jucffcate.—No Court shalt try any sujt or issue in which the matter directly and substantially in issue has been directly and substentially in issue in a former suit between the same parties. or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to fry such subsequent suit or the suit in whjch such issue has been subsequently raised, and has been heard and finalfy decided by such Court. 8. The words "heard and finally decided by such Court under Section 11 C.P.C." are of considerabte importance. A suit is said to be heard and finally decided when the judgment renclered by the Court is not the subject matter of any appeal because once the appeal is filed, the decision loses its character of finality and what was once res judfcata becomes res subjudk^, i.e., the matter is under judidat process. The reason behind it appears to be that in an appeal any finding arrived at by the Court could be varied by the AppelJate Court, and therefore, it would be idle to contain that the decjsion had become finaj. Applying the same analogy where the judgment and decree was passed ex parte against the defendant and the defendant hadt moved an appllcation under Order 9 Rule 13 ofthe C.P.C. for setting aside the judgment and decree, jt could not be said that judgment and decree had beeome final because if the application under Order 9 Rule 13 of the C.P.C. was allowed, the judgment and decree would be iiable to be set aside. 9. In this v»ew of the matter, the rejection of the appljcation dated 20.12.2CX36 by the learned lower Court on the ground that an appjication under Orcter 9 Rule 13 of the C.P.C. for setting aside the ex parte judgment and decree dated 7.4.2005 passed in Civil Suit No.40-A of 2004 was pending, and therefore, such judgment and decree would not operate as res judicata in the subsequent suit, could not be questioned. The proper course for the applicant/defendant herein in such a sjtuation would have been to file an application under Section 10 C.P.C. for stay of subsequent suit till decision of the application under Order 9 Rute 13 C.P.C. for restoration of the earlier suit. I 10. The words "No Court shatl try any suit or issue in which the matter directly and substantially in issue......" deariy indicate that the question of resjwScata can be determined in a suit only when jt is in jssue. Trial of a suit commences onty after issues are framed. An jssue on the apptjcabjljty of Section 11 C.P.C. is a sme <yua non before the question raised by the defendant could be decided. Copy of the appljcatjon fited by the applicant herein on 20.12.2006 shows that it was filed before framing of issues in the suit. The appljcant herein havjng raised the question of resjudicata in tiie written statement filed by him, the lower Court ought to have framed an issue on the question of resjtfdlicata and to adjudicate the same thereafter. 11. During the course of argumente, it was also not djsputed by the learned counsel for the parties that after the impugned ordler the application under Order 9 Rute 13 C.P.C. for setting aside the ex pQrte judgment and decree dated 7.4.2005 passed in CJvil Sujt No. 40A of 2004 had also been djsmissed. In that vjew of the matter. it would be appropriat®to direct the tearned 2nd Additionat District Judge, Bitaspur to frame an issue in the suit on the question of resjiidfcata and to decide the jssue of the applicability of Section 11 C.P.C. on merits, after giving an opportunity of hearing to the parties to the suit. Ordered accordjngly. 11. Civil Revision being devoid of any merit is cijsmiissed. 1 Sd/- 1 DUip Raosaheb Deshmukh ; 1 Judge M Vt^