^uU^^ ^^•^^^11 m THE HON'BLE HIGH COURT OF CifflATTISGARH AT BILASPUR Civil Revision No. i°'^72008 APPLICANTS /DEFENDANTS -11 ."'r~ ^ \A:<->t-^. ^•^Sy^''' <^3] rP" .^> \ J?</' < <p*^ " RESPONDENTS /PLAmTIFF'S Manif S/o. Late Manfram Kumhar, aged about : 6V years, R/o. Rrishakpara, Kumharrash, Village : Kukanar, District Ba^Ear (C.G.) Perry Cherla Nag Raju S/o. Sitaram Raju, aged about : 61 years, R/o. Village : Kukahar, Tahsil Jagdalpur, District: Bastdr (C.G.) Perry'Cherla Sitaram''-Raju S/o. Nag Raju, aged about : 32' years, R/o. Village : Sukma, Tahsil Sukma, Dista-ict Dante^vada (C.G.) Perry Ch6'la Suryanarayan Raju S/o. .^fsy^ Narsingh Raju, aged about : $.0 years, /f' R/o. Village : Kukuriar, Tahsil ,<^"' Jagdalpur, District Bastar (C.G.) VERSUS ^ S/o. Late BhaHm, aged about : 42 years, R/o. Para KumHarras, Village : Kukunar, District Basfar (C.G.) , Jaide^ S/o. Late Kaljug Kumhar, aged about : 45 years, R//o. Para Kumhan-as, Village : Kukunar, ^^ District Bas^r (C.G.) Mus. Pa^a W/o. Late Mithu Kumhar, aged about : 60 years, R/o. Para Kumharra's, Village : KuKiinar, District Basfar (C.G.) 1 j i i.iiiw)U'i*lik^l!IW MN!"W •^^^^&^^s^^:^,^^>;£,^a^ ^4] L^5. Perry''Cherla Mahar Raju S/o. not known to fhe applicants/ plaintiffs, aged about : 45/years, R/o. Village Kukanar, Tahsil Jagdalpur, District Bastar^ (C.G.) [Respondent / DefendantNo.51 Parry Cheri'a Satyanai-ayan Raju S/o. Vainkat Raju, aged about : 40 years R/o. Village Kukanar, Tahsil Jagdalpur, District Bast&r (C.G.) [Respondent / Defendant No. 6]' 'of Chhattisgarh Through : Collector Bastaf, District Jagdalpur (C.G.) CLVIL REVISION UNDER SECTION 115 OF CWIL PROCEDURE CODE ^ HIGH COURT OF CHHATTISOASH AT BILASPUR CIVIL REVISION No. 107 OF 2008 Manu and others RESPONDENTS Ramdev and ofliers SIITQLE BENCH:- Hon. Shri N.K. Aganval, J PRESENT:- Shri Manoj Paranjpe, Adv. for the applicants. Shri Shashi Kumar, Adv. for respondents No. 1 to 4. Shri G.D. Vaswam, Govt. Adv. for fhe respondent No. 6. None for respondent No. 5. ORAL ORDBR (20-1-2010) 1. This revlsion arises out of the unpugned order dated 10-5- 2008 passed m Civa Suit No. 56-A/2007 by Ist CivU Judge Class II, Jagdalpur whereby and whereunder, the applicants' application under Order 7 Rule 11 of C.P.C. has been dismissed. 2. Facts of the case, in brief, are fhat in a suit preferred by the respondents/plainttfiTs, fhe applicants herein raised an issue of res judicata by filing application under Order 7 Riile 11 read with Section 151 of C.P.C. in which it has been stated fliat the instant suit is barred by principle of res judioata tn the Ught ofjudgment and decree dated 29-9-2001 passed in. CivU Suit No. 34-A/2000 by IInd Cinl Judge Class II, Jagdalpur. It was furfher stated fhat in the previous suit, the same issues have been raised, was between the same parties, filed for the saine rellef, fherefore, the tastant suit is liable to be rejected at threshold. The prayer was opposed by the plaintiffs on the ground that the issue of res judicata cannot be decided merely on the basls of plaint aHegations. It needs consideration of facts aad therefore, this issue is required to be decided afi.er framing a specific issue in fhis regard and after recording evidence thereupon. 3. The trial Court after hearing fhe parties, dismissed fhe application reservtng the issue raised to be decided after recording of evidence in the case. 4. Shri Manoj Paranjpe, learned counsel for fhe applicants would submit that a bare perusal of the plaint would reveal that the instant suit is barred by principle of resjudicata. 5. Per contra, leamed counsel for fhe respondents supported fhe unpugned order. 6. Having heard leamed counsel for fhe parties and havins perused the order, I do not find any substance in fhe revision. Suffice it to say that fhe issue of res judicata is essentiaJly a mixed question of fact and law, required to be ralsed m fhe pleading, thereafter after framing spect&c issue, the same is required to be taied on its own merits based on the evidence adduced by the parties. The Supreme Court in the case of Madhykar D.Shende -v- Tarabai ABA Shedaee reported in (2002) 2 SCC 85 has observed in para 14 of its judgment as under:- ''.......... i?es judicata is a mixed question of fact and law. Ufe do notfind the plea of res judicata having been raised in the plaint. Copies of pleadings and issues framed in the earlier suit have not been tendered in ewdence and we do not find any issue on res judicata having beenframed and tried between theparttes in the presentsuit. ........." 7. For the foregoing, m the considered opinion of fhis Court, leamed Coiirt below has not committed any jurisdictional Ulegality or inaterial trregularily in passing tfae im.pugned order. 8. The revision fails and is dismissed. 9. ConsequenUy, uiterim order dated 24-6- Court also stands vacated. )8 passed by this Sd/- N.K.Agarwai Judge