The subsequent suit seeking the same reliefs on the same pleading was not maintainable and was barred by res judicata. The Court rejected the plaint under Order VII Rule 11(d) of CPC.

In this revision application, some interesting question of law relating to application of the provisions of res judicata, as provided under Order XII of Code of Civil Procedure, are raised.

2. The revision is directed against the order passed by the 7th Jt. Civil Judge, Sr. Dvn. Nagpur in Spl. C.S.No.2 of 2015 thereby rejecting the application filed under Order VII Rule 11(d) read with Section 11 of the CPC. The said application was filed by the present applicant who is defendant in the suit, contending inter alia that the suit is barred by principle of res judicata, since the issue directly and substantially in issue between the same parties was already adjudicated and decided in earlier suit bearing Spl. C.S. No.1423 of 2011.

3. Brief facts, which are necessary, for deciding this revision can be stated as follows :

Respondent plaintiff has purchased flat No.11 of Pankaj Apartment, Khare town, Dharampeth from Pankaj Prabha Cooperative Housing Society Ltd. by registered sale deed dated 19/12/2006. Since prior to purchase of the said flat, respondent was residing therein since 1999. Initially the flat was allotted by said Society to one Ashok Jatiram Barve. However, Ashok Barve never resided in the said flat. The President of the Society mortgaged Pankaj Apartment with Maharashtra State Finance Corporation. As Ashok Barve was unable to pay the loan amount, respondent paid the same to the President of the Society and in lieu thereof purchased the said flat. However meanwhile Maharashtra State Finance Corporation had attached and sealed the said property along with the articles therein on 24/02/2004. Thereafter the ExPresident of the Society cleared the dues of Maharashtra State Finance Corporation on 11/11/2005. Thus property came into possession of the society and the keys thereof were handed over to the new President with the consent of one Diwakar Patne, Sudhakar Tidke and the Recovery Officer of the said Finance Company.

4. As per the grievance of the respondent, the petitioner herein illegally broke open the lock of the said premises and took possession thereof in absence of respondent. The cost of the articles was more than Rs.5,00,000/. According to the respondent, at the time of agreement it was decided that Diwakar Patne and the petitioner herein will return the said articles to respondent before execution of the sale deed. Therefore on the basis of this assurance, the respondent No.1 entered into agreement of sale with the consenter Diwakar Patne and the petitioner on 03/09/2009. As per clause 7 of the agreement of sale, the sale deed was to be executed within four months from the date of agreement and if it was not executed then the agreement of sale was to stand automatically cancelled and earnest money paid by the purchaser was to be returned.

5. According to the respondent, the petitioner failed to return the household articles which were lying in the said premises. He also took illegal possession of the said property without permission of the respondent and as a result, the agreement stood automatically cancelled. The respondent was always ready to return the earnest amount which he had received at the time of execution of agreement to sale on 03/09/2009 to the petitioner. Therefore respondent filed suit bearing RCS No.869/2011 against the petitioner for declaration and permanent injunction in respect of the suit property. The said suit came to be dismissed on 22/09/2014. The same agreement to sale on which the suit was filed by respondent, was challenged by the petitioner also by filing Spl.C.S.No.1423/2011. That suit also came to be dismissed on 25/04/2013. In this backdrop the respondent filed fresh suit bearing spl.C.S. No.2/2015 before the trial Court seeking declaration that the agreement dated 03/09/2009 stands cancelled on account of breach of term and condition of the said agreement. In the suit he also claimed for the decree of vacant possession and for return of articles or to pay the cost of the a