The court emphasized that res judicata requires evidence examination and cannot be solely decided at the pre-trial stage, allowing grounds to be raised in written statements.

JUDGMENT :

ANANDA CHANDRA BEHERA, J.

1. This Revision under Section 115 of the CPC, 1908 has been filed by the petitioner (defendant No.2 in the suit vide C.S. No.209 of 2020) against the plaintiffs in the suit vide C.S. No.209 of 2020 arraying them (plaintiffs) as Opp. Party Nos.1 and 2 and also arraying the defendant No.1 and 3 to 9 as proforma Opp. Parties praying for setting aside the impugned order of rejection to his petition under Order 7, Rule 11 read with Section 151 of the CPC, 1908 passed on dated 31.01.2022 in the suit vide C.S. No.209 of 2020 by the learned Senior Civil Judge, Odagaon.

2. The factual backgrounds of this Revision, which promoted the petitioner (defendant No.2) for filing of the same is that, the Opp. Party Nos.1 and 2 in this Revision being the plaintiffs filed the suit vide C.S. No.209 of 2020 in the Court of learned Senior Civil Judge, Odagaon against the defendants (petitioner and Opp. Party Nos.3 to 9 in this Revision) praying for partition, declaration and permanent injunction.

The defendant No.2 (petitioner in this revision) filed a petition on dated 03.02.2021 under Order 7, Rule 11 read with Section 151 of the CPC, 1908 in that suit vide C.S. No.209 of 2020 praying for rejection of the plaint of the plaintiffs (Opp. Party Nos.1 and 2) on the ground that, the suit is barred by res judicata, because, in the earlier suit and first appeal vide C.S. No.9110 of 2015 and R.F.A. No.26 of 2004 respectively, the properties of the present suit vide C.S. No.209 of 2020 were the subject matter in the earlier suit and first appeal vide C.S. No.9110 of 2015 and R.F.A. No.26 of 2004 respectively and the earlier suit vide C.S. No.9110 of 2015 was withdrawn as per Order 23, Rule 1 read with Section 151 of the CPC, 1908 passed by the order of the learned Civil Judge, Sr. Division, Bhubaneswar and R.F.A. No.26 of 2004 was decided by the learned ADJ, Nayagarh, for which, the present suit vide C.S. No.209 of 2020 for the self- same subject matter is not entertainable. Therefore, the plaint of the present suit vide C.S. No.209 of 2020 is liable to be rejected.

To which, the plaintiffs (Opp. Party Nos.1 and 2 in this revision) objected stating that, the suit vide C.S. No.9110 of 2015 before the learned Civil Judge, Sr. Division, Bhubaneswar was not for the same subject matter and the parties in the said suit were different from the present suit. The previous suit vide C.S. No.9110 of 2015 has not been adjudicated, but the same was withdrawn at the desire of the father of the plaintiffs and defendant No.1.

The matters involved in the present suit are required to be adjudicated as per law. The principles of res judicata is not applicable to the present suit vide C.S. No.209 of 2020. For which, as per law, the plaint cannot be rejected. Therefore, the petition under Order 7, Rule 11 read with Section 151 of the CPC, 1908 filed by the defendant No.2 for rejection of the plaint in the suit vide C.S. No.209 of 2020 is liable to be rejected.

3. After hearing from both the sides, the learned Trial Court rejected to the petition dated 03.02.2021 under Order 7, Rule 11 read with Section 151 of the CPC, 1908 of the defendant No.2 assigning the reasons that,

“the entire subject matter, nature and parties of the earlier suit and appeal vide C.S. No.9110 of 2015 and R.F.A. No.26 of 2004 respectively were not same with the present suit vide C.S. No.209 of 2020.”

4. On being aggrieved with the said impugned order dated 31.01.2022 i.e. to the order of rejection to the petition under Order 7, Rule 11 read with Section 151 of the CPC, 1908 of the defendant No.2 passed in C.S. No.209 of 2020 b