1 wp7190.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.7190 OF 2010 Vasant Dhondiram Vankurde & Ors. ...Petitioners vs. Amrutlal Khemchand Oswal & Ors. ...Respondents Mr.P.R.Arjunwadkar for the petitioners Mr.Vishal Thakar i/b Ms Priya Oswal for the respondents CORAM :A.S.OKA,J. DATE : OCTOBER 18, 2010 P.C.: 1 Heard the learned counsel for the petitioners and the learned counsel for the respondents. Notice for final disposal was issued on 24th September 2010. The petitioners who are the defendants in a suit filed by the respondents filed an application at Exh.31 praying that issue of res judicata be famed and be tried as a preliminary issue. By the impugned order, the said application has been rejected by the Trial Court. 2 The learned counsel for the petitioners submitted that the issue of res judicata squarely arises in view of specific stand taken in paragraphs (13) and (14) of the written statement. He submitted that the issue of res judicata ought to have been framed. He submitted that the issue of res judicata could have been directed to be considered along with other issues. 3 The learned counsel for the respondents submitted that the issue of res-judicata was raised by the petitioners by filing an application under rule 11 of Order VII of the Code of Civil Procedure,1908 and the said issue has already been decided. He submitted that the issue of res-judicata does not arise. 2 wp7190.sxw 4 I have given careful consideration to the submissions. On plain reading of the written statement and in particular paragraphs 13 and 14 thereof, the issue of res-judicata has been agitated. While considering the application for rejection of plaint under rule 11 of Order VII of the said Code, the Court has to consider only the averments made in the plaint. For deciding the plea of res-judicata, the pleadings in the earlier suit and the judgment in the earlier suit is required to be considered. Therefore, while deciding the application under Rule 11 of Order VII of the said Code, issue of res-judicata could not have been considered. In the circumstances, the trial Court has committed an error by declining to frame additional issue. As recording of evidence has already commenced, the trial Court could have been justified in directing that the additional issue should be heard along with other issues. Not only the application has been rejected by the trial Court but the trial Court has penalised the petitioners by ordering payment of costs. 5 To the extent of what is stated above, petition must succeed. Hence, I pass the following order : i) Impugned Judgment and order dated 1st July 2010 is quashed and set aside. ii)The application at Exh.31 made by the petitioners is partly allowed. iii)The trial court is directed to frame an issue of res-judicata on the basis of the plea raised by the petitioners. The said issue shall be decided along with other issues. Hearing is expedited. iv)Petition is partly allowed in above terms. JUDGE