1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.5300 OF 2011. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.H.F.Pawar, advocate for the petitioners. Mr.R.V.Gore, advocate for the Respondent Nos.1 and 2. CORAM : S.V.GANGAPURWALA,J. Date : 25.08.2011. 1. Heard. 2. The present Respondents have filed a suit for injunction. The petitioners filed an application U/s 11 for dismissal of his suit on the ground of res-judicata, contending that the earlier substantive suit filed by the Respondents for partition and separate possession is dismissed. The trial Court rejected the said application. Aggrieved thereby, the petitioners have filed the present Writ Petition. 3. Mr.Pawar, learned counsel for the 2 petitioners submits that the trial Court in a vary casual manner has dealt with the application. Simply because the earlier suit was for partition and the present suit is for perpetual injunction, it is not sufficient to hold that Section 11 of the C.P.C. would not be applicable. According to the learned counsel, the trial Court has not considered that the decision in earlier suit would govern the present suit and the Respondent would not have any locus-standi to file the present suit. 4. Mr.Gore, learned counsel for the Respondents submits that the step mother was not a party in the earlier suit. The property is standing in her name and as such Section 11 of the C.P.C. would not be squarely applicable. According to the learned counsel, the trial Court has properly considered all the aspects. 5. The issue of res-judicata is a mixed question of law and fact. It can not be decided at this stage. The parties have to adduce evidence and thereafter only the said issue has to be decided. Moreover, as submitted by the Respondents, the step mother was not a party in 3 the earlier suit and she is a party in the present suit. This aspect also would be required to be considered while deciding the issue of res- judicata. No doubt, the reasons given by the trial Court may not be plausible but none the less as the application was moved U/s 11 of the C.P.C., I do not find any error committed by the trial Court in rejecting the said application. The Court would consider the issue of res-judicata on its own merits after the parties adduce evidence. Needless to state that the petitioners are at liberty to file such application as is permissible in law. 6. The Writ Petition is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.25.08.2011. asp/office/wp5300.11 4