{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1438 OF 2009 Hiralal Ratilal Gujar, age: 66 years, Occ: Agriculture, R/o Shendurni, Taluka Jamner, District Jalgaon. Petitioner Versus Ramlal Ratilal Gujar, age: years, Occ: Agriculture, R/o Shendurni, Taluka Jamner, District Jalgaon. Respondent Mr.M.M.Bhokarikar, advocate for petitioner Mr.G.V.Wani, advocate for respondent CORAM : R.M.BORDE, J. DATE : 30 th November, 2010 PER COURT: 1 An application tendered by the petitioner – original defendant requesting the Court to reject the plaint in exercise of powers under Rule 11 Order VII of the Code of Civil Procedure came to be rejected by the trial Court in view of order dated 17.01.2009. Said order is subject matter of challenge in this petition. 2 Defendant has objected to the suit mainly on the ground that the decisions rendered in earlier litigation between the parties i.e. Regular Civil Suit No.7/1982 and Special Civil Suit No. {2} 14/1971 operate as res judicata as the issue raised in the instant suit is already dealt with in earlier litigation. 3 The application was opposed by the Respondent – original plaintiff by filing his say. It was pointed out that the decree passed in Special Civil Suit No.14/1973 was a compromise decree and parties have also arrived at a compromise in execution proceedings, being Special Darkhast No.38/1973. There was no decision rendered by the Court in view of the compromise. So far as Regular Civil Suit No.7/1982 is concerned, there was no issue in respect of eastern or southern wall of the house bearing Gram Panchayat House No.1667. 4 In the instant suit, plaintiff is claiming decree of injunction against the defendant in respect of suit wall, which is part and parcel of House No.1667. In Regular Civil Suit No.7/1982, the question of entitlement of predecessor of plaintiff was a matter of consideration. In this view of the matter, the issues arising for determination in the earlier litigation, are not the issues which are required to be considered in the instant suit. The trial Court is, therefore, justified in recording a finding that the judgment in the previous litigation does not operate as res judicata and there cannot be any bar for the plaintiff to prosecute the instant suit. Thus, it cannot be said that the suit presented by the plaintiff is barred. The requirements of clauses (a) to (f) of Rule 11 of Order VII of the Code of Civil Procedure are not satisfied and as {3} such, the trial Court is justified in turning down the application presented by original defendant claiming rejection of the plaint. 5 Learned Counsel appearing for the petitioner seeks leave to place reliance on the judgment in the matter of S. Nazeer Ahmed Vs. State Bank of Mysore and others, reported in AIR 2007 SC 989. I have perused the said judgment. The facts giving rise to aforesaid litigation are totally different and as such, the ratio laid down in the judgment cited supra is not applicable to the facts of the instant case. 6 Considering the ratio laid down by the Apex Court in the case of Shalini Shyam Shetty & another Vs. Rajendra Shankar Patil, reported in 2010 (7) SCALE 428, no interference is called for in exercise of the powers conferred upon this Court under Article 227 of the Constitution. Writ Petition is devoid of substance. 7 Writ Petition, therefore, stands rejected. R.M.BORDE JUDGE adb/wp143809