1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.520 OF 2008. Shivaji Narhari Kawade : Petitioner. versus Shafik Hasan Khan & ors. : Respondent. Shri Mandar Limaye for the Petitioner. CORAM : R.M.SAVANT, J. DATED : FEBRUARY 20, 2009 P.C. 1. By this Civil Revision Application, the Petitioner, who is the original Defendant No.2 in Regular Civil Suit No.600 of 2007 pending in the Court of Civil Judge, Junior Division, Pune, challenges the order dated 30th June 2008, by which order Application Exhibit-48 filed by the said Defendant under Order 7 Rule 11 of the Code of Civil Procedure came to be rejected. 2. It is the case of the Petitioner that prior to the present suit 2 being filed by the Plaintiff, the Plaintiff's grandfather had filed a suit against the grandfather of the Defendant No.2 in respect of the subject matter i.e. the Plaintiff was entitled to right of way to the suit property `B' from the Suit property ` A” and vice-a-versa. The said Suit No.1096 of 1965 came to be dismissed by the Civil Court on 15/02/1957 and the said decree was confirmed by the Appeal Court by the judgment and order dated 05/03/1958. 3. In the light of the said facts, the Defendant No.2 in the present suit filed the said Application under Order 7 Rule 11. The said Application as indicated above came to be rejected by the impugned order dated 30/06/2008. The learned Judge without referring to the Issue of res-judicata as contained in the said Application Exhibit-48 observed that the perusal of the averments made in the plaint does not disclose that the plaint can be rejected as the suit does not appear to be bared by any provision of law. 4. It appears that a “No-WS” order has been passed against 3 the present petitioner i.e. The Defendant No.2 on 03/06/2008 in the said suit. The learned counsel for the Petitioner states that the said order is under challenge in the District Court. 5. In my view, without interdicting at this stage, if the Petitioner ultimately succeeds in getting the said No-WS order set aside, the Petitioner then would be entitled to take such contentions as are available in law in the said written statement as regards the maintainability of the said suit. It would then be open to the Petitioner to raise the issue of maintainability of the said suit on the point of res- judicata. If such an issue is raised in the written statement, it would be open for the Petitioner to apply for framing of the said issue and in the said event, the impugned order would not come in his way. 6. With the aforesaid observation, the above Civil Revision Application is disposed of. [R.M.SAVANT, J]