Decided on February 25,2021

BABULAL Appellant
MOTILAL Respondents


B.K.Shrivastava,J. - (1.) This revision has been preferred under section 115 of CPC on 14.11.2019 against the order dated 30.10.2019 passed by the First Civil Judge, Class-II, Sidhi, District Sidhi in Civil Suit No.74-A/2019. By the impugned order, the learned trial court dismissed the application filed under Order 7 Rule 11 of CPC for dismissal of the suit, by the petitioner herein.
(2.) The present petitioners were the defendants before the trial court. When the suit was filed, the defendants/petitioners moved an application under Order 7 Rule 11 on 19.9.2019. It was stated in the aforesaid application that the plaintiffs also filed a previous suit related to the same property, which was dismissed on 19.7.2018. Because of dismissal of aforesaid suit No.409-A/2016 the second suit is barred by res judicata. The plaintiffs did not challenge the aforesaid order of dismissal in any higher court. Therefore, the second suit is not maintainable according to the principle of res judicata. The plaintiffs of that case/respondents herein filed the reply of aforesaid application on 19.9.2019 in which it was stated that the aforesaid previous suit was dismissed in default. The suit was not decided on merit. Therefore, the result of previous suit cannot operate as res judicata.
(3.) After hearing both parties, the trial court passed the impugned order and dismissed the application by holding that the previous suit was not dismissed on merit. Therefore, the section 11 of CPC is not attracted. The trial court also held that the separate cause of action has been arisen in both cases, therefore, the subsequent suit is not barred by any law.;

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