JUDGMENT
U.C. Maheshwari, J.
1. The appellant/plaintiff has preferred this appeal being aggrieved by the order dated 30-10-2006 passed by Second Additional District Judge, Bhopalin Civil Original Suit No. 157-A/05 dismissing its suit by allowing the applications of respondent No. 4 filed under Order VII Rule 11 of CPC.
2. The facts giving rise to this appeal in short are that the appellant filed a suit for declaration and injunction against respondent Nos. 1 to 3 in respect of using some “Public Road” between the land of appellant bearing Survey Nos. 206/1/1 and 206/2 area 6.61 hecter and of respondent No. 3 bearing Survey Nos. 140, 204 and 205 and of respondent No. 4 bearing Survey Nos. 63 and 66 situated at Village Narela Shankari in Tehsil Huzur, District Bhopal. Subsequent to filing the suit, the respondent No. 4 on impleading it as defendant No. 4 filed an application under Order VII Rule 11 of CPC contending that the subject matter of suit substantially and directly on the same issues has been finally adjudicated between the parties in Civil Original Suit No. 11-A/89 vide judgment and decree dated 29-3-2006 passed by 4th Civil Judge Class II, Bhopal. By annexing the copy of such judgment and decree along with some other papers with it on the principle of res judicata enumerated under Section 11 of CPC the prayer or dismissal of the suit was made. On consideration, the Trial Court by allowing such application dismissed the suit on account of the principle of res judicata at the initial stage even before filing the written statement and framing the issues. The same is challenged by the appellant in this appeal.
3. Shri Sidharth Gulathi, learned Counsel for the appellant assailed the impugned order saying that respondent Nos. 1 to 3 were not the parties in the aforesaid Civil Original Suit No. 1 l-A/89. Therefore, in any case principles of res judicata was not applicable between appellant and such respondents. Besides this as per settled position of law the question or res judicata could be decided only after filing the written statement, framing the issues and on proving the pleadings of earlier suit by admissible evidence and prior to that stage such question could not be decided even between the appellant and respondent No. 4. It is apparent from the impugned order that contrary to such settled proposition of law at premature stage the suit of the appellant has been dismissed by the Trial Court. In this premises, the impugned order is not sustainable and prayed for remitting back the matter to the Trial Court for fresh adjudication in accordance with law by setting aside the impugned order.
4. In reply of aforesaid argument Shri A.L. Patel, learned Government Advocate not only justified the impugned order but also said that when the subject matter of dispute has already been adjudicated between the parties in earlier suit then subsequent suit was barred by res judicata. Therefore, the Trial Court has not committed any error in dismissing he suit by virtue of Order 7 Rule 11 of CPC and prayed for dismissal of this appeal.
5. Smt. Sobha Menon, Senior Advocate assisted by Ms. Manjeet Chakkal, Advocate, learned Counsels of the respondent No. 4 justified the impugned order between the appellant and respondent No. 4 but fairly conceded that in earlier suit respondent Nos. 1 to 3 were not impleaded as parties. Hence the doctrine of res judicata is not applicable against such respondents but in view of the aforesaid earlier judgment and decree passed in Civil Original Suit No. 11-A/89, she prayed for dismissal of this appeal against respondent No. 4.
6. Having heard the learned Counsels, I have perused the papers placed by the parties on record, it appears that in respect of same subject matter at earlier point of time Civil Original Suit No. 11-A/89 has been adjudicated in respect of the subject matter of this suit between the appellant and respondent No. 4 by 4th Additional Civil Judge Class II, Bhopal. Copies of such judgment and decree and of written statement of respondent No. 4 filed in such suit are also annexed as Annexure R-3 (iii) and R-3 (iv). Mere perusal of such judgment reflects that respondent Nos. 1 to 3 were not impleaded in the earlier suit. Thus, in any circumstance the doctrine of res judicata could not be applied against them. In spite it the appellant’s suit has been dismissed against such respondent on the ground of res judicata. Thus, it is held that the Trial Court has committed grave error, infirmity and perversity in dismissing the suit against respondent Nos. 1, 2 and 3.
7. Coming to the question whether doctrine of res judicata can be considered by the Trial Court before filing the written statement, framing the issues and also without proving the pleadings of plaint and written statement in earlier suit by adducing the evidence. Before giving any findings on this question, I would like to refer the decision of the Apex Court in the matter of Isher Singh v. Sarwan Singh and Ors. , in which it was held as under:
3. The point that is raised in this appeal is really not so much as to the scope of a plea of res judicata and the law bearing upon it, but merely the application of well settled principles to the facts of the case. The main submission of Mr. Bishan Narain – learned Counsel for the appellant was that the issue as regards the relationship of the respondents to the deceased – Jati as his collaterals was not, a matter directly and substantially in issue” in the former suit. Obviously, this question has to be decided (a) on the pleadings in the former suit, (b) the issues struck therein, and (c) the decision in the suit….
11. We thus reach the position that in the former suit the heirship of the respondents to Jati deceased (a) was in terms raised by the pleadings, (b) that an issue was framed in regard to it by the Trial Judge, (c) that evidence was led by the parties on that point directed towards this issue, (d) a finding was recorded on it by the Appellate Court, and (e) that on the proper construction of the pleadings it would have been necessary to decide the issue in order to properly and completely decide all the points arising in the case to grant relief to the plaintiff. We thus find that every one of the conditions necessary to satisfy the test as to the applicability of Section 11, Civil Procedure Code is satisfied.
8. Subsequent to aforesaid this Court has also answered the said question in the matter of Munshilal v. Kanna and Ors. reported in 1976 M.P. Weekly Notes 93, in which it was held as under:
Held: in order to decide the pleas of res judicata the Trial Court has relied only on the certified copy of the judgment in the earlier suit. Copies of the pleadings in the earlier have not been filed. In order to find out the real questions in controversy on the basis of pleadings in the earlier suit for deciding question of res judicata, the proper things to do was to require certified copies of the pleadings in the earlier suit to be filed. All the same, from the facts not in controversy and as they appear from the certified copy of the judgment, it is clear that the plea of res judicata is not made out in the present case. The earlier suit was filed by the defendants against the present plaintiff for possession of a portion of the land forming the subject-matter of the present suit on the ground that the defendant in that suit (i.e., the present plaintiff) had forcibly disposed the present defendants (plaintiffs in the earlier suit). The earlier suit was fought only on that basis. The present suit, on the other hand, is filed on the ground that the present plaintiff became owner of the suit land by virtue of a registered sale deed dated 21-1-1971 subsequent to decision on the earlier suit. A suit based on a transfer made subsequent to the decision of the earlier suit cannot therefore be hit by the principle of res judicata in the manner found by the Trial Court. For this reason alone, the decision of the Trial Court on issue No. 5 has to be set aside. The revision is hereby allowed. The impugned order passed by the Trial Court deciding preliminary issue No. 5 relating to the plea of res judicata against the plaintiff, is set aside. Revision allowed.
9. Again this Court expressed the view in the matter of Bharosilal and Ors. v. Mst. Shiladevi reported in 1988 JLJ 712, in which it was held as under:
10. …It is necessary to stress importance of the crucial requirement of the plea of res judicata, namely, that at both stages the “matter” must be directly and substantially” in issue. In Asher Singh case it was held that the question whether a matter was directly and substantially in issue in the former, has to be decided on the pleadings in the former suit, the issues struck as also the decision rendered thereon in that suit.
10. In view of the aforesaid dicta without proving the pleadings of the parties along with the judgment and decree of earlier suit the question of res judicata could not be considered and decided. The aforesaid principles are directly applicable to the case at hand as the Trial Court has dismissed the suit by holding the res judicata before framing the issues and proving such pleadings. In the absence of pleadings the question raised by the respondent No. 4 could not be substantial adjudicated between them, in that way the Trial Court has committed grave error, perversity and infirmity in deciding the question of res judicata at premature stage. Although such documents could be considered by the Trial Court for disposing of some interlocutory application or for passing any interlocutory orders, but same is not sufficient to dismiss the suit by holding the res judicata between the parties.
11. Under the aforesaid premises, the order of the Trial Court is not sustainable. Hence, the same is hereby set aside. In pursuance of it the Trial Court is directed to decide such suit afresh in accordance with law under the prescribed procedure keeping in view the principle laid down in the aforesaid cited cases. It is clarified that the Trial Court shall be at liberty to pass any interlocutory order on interlocutory application in pendency of the suit without influencing any observation or finding made in this order.
12. Appeal is allowed as indicated above. There shall be order as to costs. Decree be drawn up accordingly.
13. Copy of this judgment and decree be immediately sent to the Trial Court for further proceedings of the case in compliance of this judgment. The parties are directed to remain present before the Trial Court on dated 31-8-2007.