IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.260 of 2008
1. Lalit Mahto
2. Luchi Mahto
Both sons of Malahi Mahto
3. Babu Lal Mahto, son of Baiju Mahto
All are residents of village- Garib Nagar, P.O.
Kawadpur, P.S. Surajgarha, District- Lakhisarai.
....Defendants......Petitioners.
Versus
1. Prasadi Mahto
2. Ganesh Mahto
3. Jageshwar Mahto
All sons of late Shital Mahto, resident of village-
Garib Nagar, P.O. Kawadpur, P.S. Surajgarha, District-
Lakhisarai.
.....Plaintiffs......Opposite Parties.
4. Hari Mahto, son of Malahi Mahto, resident of village-
Garib Nagar, P.S. Surajgarha, District- Lakhisarai.
....Defendant....Opp. Party 2nd set.
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05- 20.10.2011 None appears on behalf of the petitioners. The
defendants are the petitioners in an application under section
115 of the Code of Civil Procedure and raise a grievance
with respect to the order dated 3.1.2008, passed by the
learned Subordinate Judge 2nd court, Lakhisarai, in Title Suit
No.28 of 2000, whereby their application under section 11
of the Code of Civil Procedure has been rejected.
2. We have perused the materials on record. It
appears to us that the defendants filed an application under
section 11 of the Code of Civil Procedure on 31.10.2007,
before the learned trial court that the suit is hit by the
principles of res-judicata. The plaintiffs did not file any
2
written reply to the same but orally contested the same. The
application of the defendants has been rejected on the
ground that issues have not been framed and, therefore, it is
not possible to decide the preliminary question raised in the
application at this stage. We agree with the order of the
learned trial court.
3. This civil revision application is dismissed.
It goes without saying that, while framing the issues in the
suit, the learned trial court shall incorporate as one of the
issues whether or not the suit is hit by the principles of res-
judicata.
(S K Katriar, J.)
S.K.Pathak/