IN THE HONOURABLE HIGH COURT OF CHHATTISGARH AT BILASPUR fC.G.) CIVIL REVISION N0. \ ?70 OF 2006 APPLICANTS DEFENDANTS ^ \^ RESPONDENT PLAINTIFF Kamla Prasad, aged abput 62 years, (Now Dead), Son of Shri Bechulal Sahu; Shopkeeper, Resident of Mahasamund, Tahsil Mahasamun District Raipur (Now Mahasamund), Through: Legal Heirs: 1. Harishchand Sahu, aged about 53 (50) years, Son of Late Shri Kamla Prasad Sahu; 2. Smt. Shantibai, aged about 68 (65) years, Widow of Late Shri Kamla Prasad Sahu; Both residents of Mahasamund (C.G.). Kurmipara, 3. Hemant Kumar, aged about 25 (22) years/Son of Late Shri Kamla Prasad Sahu; Resident of Ward No.14, Mahasamund (C.G.). VERSUS : 0 Sharda Prasad, aged about 65 rears, Son of Shri Baljnath Sahu, (Now Dead), Resid^nt of Mahasamund, Tahsil Majiasamund, District Raipur (Now Ma/hasamund), Through Legal H^ir: Loknath Sahu/ @ ^.axminarayan,si^te<l^ aged about 4^ (3^ years, Son of ^s^ , / ^^ 9:^ 4 Late Shri Sharda Prasad, Occupation-Advocate, Resident of Ward No.6, Qr. N0. 108, Mahasamund (C.G.). CIVIL REVISION UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE. 1908 fHEREINAFTER CALLED THE WC.P.C." iffs^»s«ra-,,^^r A^\s" ^?'- ^ ^- s ^" ® ^ L. .\i ^^ •98d rt»*«y,^., ^^ fife^t N- yw»,Nto@t. ^^) .8s»t, fc^ia^ ^it ^^^^.wm^m^ HIGH COURT OF CHHATTSSGARH AT C.R.No.170of2006 &2-- Applicants Defendants Respondents/ Plalntgffs Kamla Prasad & Others Versus Smt. Sandhya Rani Sahu & Others. Civil Revision underSectJon 115 oftheCode ofCivii Procedure (SB: Hon'bie !VJr. N.K. Aaarwa!,Al Present : Shri PKC Tiwari, Sr. Advocate wlth Shri Shashi Bhushan, Advocate for the applicants. Shri HB Agrawal, Sr. Advocate vwh Ms. Itu Rani Mukharjee, Advocate for non-applicants i.e. legai representatives of deceased plaintiff. ORAL (Passed on 15th day of February, 2010) Feeiing aggrieved by the order dated 09.05.2006, passed by the First Civil Judge C!ass-l, Mahasamund, in Civit Suit No. 7-B/03, whereby and whereunder the application filed by the appiicants under Order 7 Rule 11 of CPC has been dismissed, the instant revision has been preferred by the appiicants/defendants. By way of appiication under Order 7 Ru!e 11 of CPC, the applicants have raised a preilminary objection that since the issue invoived in the suit between the parties has aiready been dedded by the court in an eariier suit No. 51-A/05, the instant suit is liable to be rejected under Section 11 of CPC as barred by prindpie of res-judicata. Shri Tiwari, learned senior counsel appearing for th.e app'icants wouid submit that the issue jnvolved can be declded by mere reading of piaint aliegations and documents fiied on the record and &<2> therefore, the rejection of the applicant's application by the trial court is bad. Per contra, Shri Agrawal, iearned senior counsel appearing for the respondents would submit that the issue involved in both the suits are different; the question of res-judicata cannot be decided mereiy on the basis of plaint allegatlons and documents appended therewith. For that purpose, the court has to consider the pleadings of both the parties, issues framed in both the suits which necessarily requires evidence and therefore this question cannot be decided on an application filed under Order 7 Rule 11 of CPC. 1 have heard the counsel appearing for the parties and perused the order impugned and record aiso. The trial court has dismissed the appiication hotding that the relief ciaimed in both the suits are different and the suit cannot be decided on an application filed under Order 7 Rule 11 of CPC without reserving the issue raised to be decided after recording of evidence in the case. So far as the question whether or not the suit can be held as barred by principle of res-judicata by fiiing an application under Order 7 Rule 11 of CPC is concerned, suffice it to say that the issue of res-judicata is essentialiy a mixed question of fact and law, required to be raised in the pleading, thereafter after framing specific issue, the same is required to be tried on its own merits based on the evidence adduced bythe parties. The Supreme Court in case of Madhukar D. Shende v. Tarabai ABA Shedage1, has observed in para 14 of its judgment as under: 1 2002 (2) SCC 85 ^^!^S^^ ^ "14. .......resy^djcafa is a mixed question of fact and iaw. We do not find the plea of resjudicata having been raised in the piaint. Copies of pleadings and issues framed in the eartier suit have not been tendered in evsdence and we do not find any issue on res judicata having been framed and tried between the parties in the present suit......." 8. This court has also followed the same ratio in the matter of Manu & Others v. Ramdev & Others (C.R. No. 107/08, declded on 20.01.2010). 9. Therefore, so far as rejection of appiication filed under Order 7 Ruie 11 of CPC is concerned, the trial court has not committed any illegality in rejecting the same. But, the trial court has committed illegaiity in not reserving the Issue raised to be decided after recording of evidence in the case, therefore, the order to that extent passed by the trial court deserves to be modified. 10. In view of foregoing, the order impugned is modified to the extent that the triai court shai! frame a specific issue whether or not the suit is barred by principle of res-judicata, and shal! declde the same in accordance with law on its own merits after recording evidence adduced by the parties without there being influenced by its observation made in the order impugned. 11. With the above observation, the revlsion is disposed of. No order asto costs. 12. Interim relief granted eariier stands vacated. Records of court below be sent back forthwith. Sd/- N. K. Agarwal Sahu