- (1.) THIS appeal has been preferred against the order dated 26.8.2008 passed by the Additional District Judge, Abu Road, whereby the appeal filed by the respondents Lakha Ram and Nema Ram has been allowed and the suit, which was dismissed by the trial court vide order dated 24.9.2007 under Order VII, Rule 11 CPC, has been remanded back. Brief facts of the case are that the respondents Lakha Ram and Nema Ram filed a suit against Lal Singh for permanent injunction. An application under Order VII Rule 11 CPC was filed by said Lal Singh inter-alia with the averments that regarding the same subject matter another suit filed by him titled as Lal Singh Vs. Magan Singh has already decided by the Court of Civil Judge (Sr.Div.), Mount Abu vide its judgment and decree dated 9.10.2006 and as the present suit relates to the same disputed property, thus, the suit was barred by principles of res judicata. The trial court dismissed the suit under the provision of Order VII, Rule 11 CPC on coming to the finding that though the plaintiffs Lakha Ram and Nema Ram were not parties to the earlier suit, however, the subject matter of the suit was same and, therefore, the suit was barred by principles of res judicata as enshrined under Section 11 CPC.
(2.) FEELING aggrieved, the plaintiffs filed first appeal. The learned first appellate court after hearing the parties, came to the conclusion that as the plaintiffs were not parties to the earlier litigation, therefore, the said decree would not operate as res judicata and remanded back the matter to the trial court for deciding the same on merits. It is contended by learned counsel for the appellant that the order passed by the learned first appellate court is against the record of the case, inasmuch as, the father of the plaintiffs had filed an affidavit in the earlier suit and, therefore, in view of Explanation VI under Section 11 CPC, the suit was barred by res judicata. On the other hand, the learned counsel for the respondents supported the judgment passed by the learned first appellate court.
(3.) ADMITTEDLY , the plaintiffs were not parties to the earlier suit and in case the defendant-appellant wants to rely on Explanation VI under Section 11 CPC, then in that case, he is required to lead cogent evidence in this regard and the said aspect could not be decided at the stage of consideration of application under Order VII, Rule 11 CPC. It is open for the appellant to raise the said objection in written statement to be filed by him and the learned trial court on framing a issue, if such a objection is raised, may decide the same after evidence is lead by the parties. In that view of the matter, the appeal filed by the appellant has no substance and the same is, therefore, dismissed. No costs.;