IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.260 of 2008 1. Lalit Mahto 2. Luchi Mahto Both sons of Malahi Mahto 3. Babu Lal Mahto, son of Baiju Mahto All are residents of village- Garib Nagar, P.O. Kawadpur, P.S. Surajgarha, District- Lakhisarai. ….Defendants……Petitioners. Versus 1. Prasadi Mahto 2. Ganesh Mahto 3. Jageshwar Mahto All sons of late Shital Mahto, resident of village- Garib Nagar, P.O. Kawadpur, P.S. Surajgarha, District- Lakhisarai. …..Plaintiffs……Opposite Parties. 4. Hari Mahto, son of Malahi Mahto, resident of village- Garib Nagar, P.S. Surajgarha, District- Lakhisarai. ….Defendant….Opp. Party 2nd set. ----------- 05- 20.10.2011 None appears on behalf of the petitioners. The defendants are the petitioners in an application under section 115 of the Code of Civil Procedure and raise a grievance with respect to the order dated 3.1.2008, passed by the learned Subordinate Judge 2nd court, Lakhisarai, in Title Suit No.28 of 2000, whereby their application under section 11 of the Code of Civil Procedure has been rejected. 2. We have perused the materials on record. It appears to us that the defendants filed an application under section 11 of the Code of Civil Procedure on 31.10.2007, before the learned trial court that the suit is hit by the principles of res-judicata. The plaintiffs did not file any 2 written reply to the same but orally contested the same. The application of the defendants has been rejected on the ground that issues have not been framed and, therefore, it is not possible to decide the preliminary question raised in the application at this stage. We agree with the order of the learned trial court. 3. This civil revision application is dismissed. It goes without saying that, while framing the issues in the suit, the learned trial court shall incorporate as one of the issues whether or not the suit is hit by the principles of res- judicata. (S K Katriar, J.) S.K.Pathak/