IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.727 of 2007 Most.Bibi Sajda Khatoon Versus Md.Illyas & Ors For petitioner: Najmul Hoda,Adv. For opp.party.no.1: -Md. Faiz Ahmad, Adv. ----------- 10. 16.11.2011 Heard the learned counsel appearing on behalf of the petitioner and learned counsel appearing on behalf of the opp.parties. The petitioner who is defendant in T.S.No.78/03/48/04 has filed the present revision application against the order dated 02.02.2007 by which the Court has decided the preliminary issue regarding bar of res judicta as raised by the defendants against them. By the impugned order the court below has come to the finding that the issues which are being tried in the present suit were not directly and substantially in issue in the previous T.S.No.34/81 and on that basis the court has come to the conclusion that the suit cannot be held to be barred by res judicata as provided in Section 11 C.P.C. There is no dispute that the parties in the previous suit as well as in the present suit are the same and the property in both the suits are the same. However, the 2 reliefs which were prayed in the previous suit as well as the matters directly and substantially in issues in the previous suit as claimed by the defendants/petitioner are not the same. The perusal of the issues framed in the two suits, which have been brought on the record by annexing the relevant documents do not appear to be same. The learned court below has rightly come to the conclusion the issue nos. 6 and 9 in the present suit were not the matters in issue in the previous suit and such issues are still to be finally adjudicated between the parties. The learned counsel appearing on behalf of the petitioner has submitted that it is not at all necessary that the issues in both the suits should be same and in order to attract the bar of the principle of res judicata it would be sufficient, if it is found that the parties and properties in the previous suit and the latter suit are the same. It has been urged by the learned counsel the word used in Section 11 is “ suit or issue” which shows that if the two suits are the same with regard to the person and properties then the adjudication in the previous suit will bar the trial of the later suit. The perusal of the provision of Section 11 3 C.P.C. does not support the contention of the learned counsel. The emphasis by the legislature is not on the word “suit or issue” but on the words “matters directly and substantially in issue”. Therefore, it cannot be said that if the party and the property in the previous suit as well as in the later suit are the same, the later suit will be barred by the principle of res judicata. Moreover, from the issues framed in the present suit it appears that the plaintiffs have prayed for the relief of redemption of the mortgage and even if it is assumed that such a prayer was there but not adjudicated in the previous suit the same cannot be sufficient to attract the bar of constructive res judicata under Section 11 C.P.C. in view of the legal principle illumined by Privy Council in the decision reported in AIR1934 P.C. 205. There is no illegality or jurisdictional error in the impugned order. This revision application is, accordingly, dismissed. Nitesh ( V. Nath, J.)