IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1443 of 2008 FULESHWAR RAM Versus HABBU DAS @ HABBU RABIDAS &ORS ----------- 2. 3.9.2008 Heard counsel for the petitioner. In the opinion of this Court the impugned order holding the suit to be not barred under section 11 of the Code of Civil Procedure, after taking into account the evidence on this very issue, in purported exercise of its power under Order 14 Rule 2 C.P.C. does not suffer from any jurisdictional error. The court below has given cogent reason in the impugned order which would indicate that the suit land of the earlier suit and the present suit on the basis of which a claim of res judicata was being pressed is some what totally different. Normally this Court in exercise of its revisional power under section 115 C.P.C. is not required to examine such finding of fact based on evidence unless they are wholly perverse or based on error of record. Such however being not the case of the petitioner, this Court would not find 2 any error in the impugned order. Mr. Vishundeo Narayan, learned Counsel appearing on behalf of the petitioner would, however, contend that the court below has committed a procedural error in framing an issue and also allowing the parties to adduce evidence. In his view an application filed under Order 7 Rule 11 C.P.C. ought to have disposed of without framing any issue or leading of evidence. Mr. Narayan, however, when called upon to justify from the reading of the plaint that the provisions of Order 7 Rule 11 could have been enforced for rejecting the plaint had placed reliance on para 6 of the plaint which by itself in fact does not provide any of the ground as mentioned under Order 7 Rule 11 for rejection of the plaint. As a matter of fact the defendant-petitioner would be precluded from raising any such ground, especially when it was his instance and in the light of defence taken by him in the written statement that a preliminary issue of the suit being barred by Res- judicata were framed and he had also examined three witnesses for proving his 3 preliminary issue. The petitioner, therefore, cannot be allowed to approbate and reprobate. In that view of the matter, this Court would not find any error in the impugned order and this Civil Revision Application is accordingly dismissed. ( Mihir Kumar Jha,J.) Surendra/