1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8664 OF 2009 Mohan Mallu More Petitioner versus Rangrao Krishnarao Bhosle and others Respondents Mr.A.S.Khandeparkar i/by Khandeparkar & Associates for petitioner. Mr.Indrajeet Joshi for respondent no.1. Mr.Ajit Savagave i/by S.S.Patwardhan for respondent no.2. CORAM : A.S.OKA, J. DATE : 18th January 2010 PC :- 1. Heard learned counsel for the petitioner. The petitioner is the original second defendant and the first respondent herein is the original plaintiff. An application was made by the petitioner at Exhibit-15 praying that the plaint be rejected in exercise of powers under Rule 11(d) of Order VII of the Code of Civil Procedure, 1908 on the ground that the suit is barred by res-judicata. The said application has been rejected by the Trial Court by order dated 4th April 2009 by holding that the application was not tenable. An application was made by the petitioner at Exhibit-24 praying for recalling the said 2 order dated 4th April 2009. Another application at Exhibit-26 was made by the petitioner praying that preliminary issue on the basis of the plea of res-judicata be framed in accordance with section 9-A of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code"). 2. By the impugned orders dated 10th July 2009, both the applications at Exhibits 24 and 26 have been rejected by the learned Trial Judge. 3. After having heard the learned counsel for the petitioner and after perusing the order dated 12th November 2009 passed by this Court, I find that there is no reason to interfere with the impugned orders. An application for rejection of the plaint under Rule 11(d) of Order VII of the said Code is to be decided on the basis of averments made in the plaint. While deciding the question whether the suit is barred by res-judicata, the Court is under an obligation to consider the pleadings in the earlier suit as well as the judgement in the earlier suit. Therefore, by order dated 4th April 2009, the learned Trial Judge rightly held that the plaint cannot be rejected on the basis of plea of res-judicata and the application made by the petitioner was not tenable. By application at Exhibit-24, a prayer was made for recalling the said order which has been rightly rejected by the Trial Court. As 3 far as prayer for framing a preliminary issue under section 9-A of the said Code on the plea of res-judicata is concerned, the issue of res- judicata is not an issue of jurisdiction. Under section 9-A of the said Code, only an issue as to jurisdiction of the Court can be heard as a preliminary issue. Therefore, the Trial Court has rightly rejected the application at Exhibit-26. 4. The issue based on the plea of res-judicata will have to be framed by the Trial Court at the appropriate stage and the same will have to be decided in accordance with law. 5. Subject to what is observed above, the writ petition is rejected. It is, however, made clear that the issue of res-judicata has not been decided by the Trial Court and the same will be decided as and when occasion to decide the same arises. After issues are settled, it will be open for the petitioner to apply to the Trial Court for trying the issue of bar of res-judicata as a preliminary issue. (A.S.OKA, J.)