The principle of res judicata applies only when the parties, issues, and cause of action are identical.

ORDER :

1. The present revision petition has been filed against the order dated 14.10.2022 passed by the Additional District Judge, No. 5, Jodhpur Metro in Civil Original Suit No. 49/2019 (NCV No. 49/2019) whereby issue No. 8 as framed has been decided.

2. As an averment regarding the suit being barred by res judicata was raised by the defendants vide an application under Order XIV Rule 2 of the Code of Civil Procedure (CPC), the said application was allowed vide order dated 18.10.2021 and in pursuance to the same, learned trial Court proceeded on to decide issue No. 8 as a preliminary issue.

Issue No. 8 read as under:

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Learned Court below decided the said issue against the defendants and held the suit not to be barred by res judicata.

3. Averment of the defendants was that earlier a suit qua the same suit property was instituted [Civil Suit No. 41/2012(146/2012)] which suit had been finally adjudicated and decided vide judgment dated 03.06.2017. The present suit also pertains to the same property, only the names of the plaintiffs have been changed. The plaintiffs in both the matters have instituted the suit under the same capacity arising out of the same title. Earlier suit was filed by Meghvanshi Vikas Samiti whereas the present suit in representative capacity has been filed on behalf of Meghwal Samaj. The matter in issue in the present suit was directly and substantially in issue in the earlier suit and the said suit having been heard and finally decided, the present suit by the parties who claim to be litigating under the same title cannot be tried by the Court and the earlier suit would definitely operate as res judicata to the present suit.

4. The case of the defendants was that the present is a representative suit. The earlier suit was filed by one Samiti claiming ownership which was dismissed by the Court with a specific finding that the property in question was not a part of its “Vidhan Namaavali.” Further, the cause of action for the present suit is also totally different as defendants No. 1, 3 & 4 to the present suit have executed a release deed dated 12.09.2018 in favour of defendant No. 2 by virtue of which defendant No. 2 has sold out the property to defendant No. 5 and has even handed over the possession to him. Therefore, neither the parties to both the suits are common nor the cause of action is the same. The findings in the earlier suit cannot bind the present plaintiffs as they have instituted the present suit in a representative capacity. It was also the case of defendants that the order dated 18.09.2019 vide which the application under section 11 of CPC had already been rejected by the Court and which order having not been challenged further, has become final for all the purposes. Therefore, the issue already having been decided, the same cannot be agitated again by the plaintiffs.

5. Learned trial Court proceeded on to decide the issue with a specific finding that the earlier suit was instituted only against Poona Ram whereas the present suit has been instituted for cancellation of release deed by his son and daughter in favour of defendant No. 5 and for recovery of possession from defendant No. 5 impleading all of them as party defendants. Therefore, although the suit property is the same, the cause of action and the issues of dispute between the parties are totally different from the earlier suit and even the parties to the suit are also not the same. Further, the order dated 18.09.2019 whereby the Court specifically held the suit not to be barred by res judicata has not been challenged and therefore also, issue No. 8 was not held to b