An order not passed on merit does not operate as res judicata, and the heading of an application does not render it liable for rejection if the prayer is sound and covered under another provision of the Code.

( 1 ) HEARD learned counsel for the parties.

( 2 ) THIS petition challenges the order dated 6-5-2005 passed by the trial court and order dated 19-12-2005 passed by the revisional court. The respondent No. 1 filed a suit for declaration against the petitioners-defendants in which the plaintiff presented an application under Order XI, Rule 12 C. P. C. for discovery of certain documents. Initially the said application was dismissed vide order dated 4-4-2005 (Annexure-6) stating that the application was not supported with affidavit and the defendants petitioners had denied possession of those documents sought to be discovered. Thereafter, a second application stated to be under Section 151 C. P. C. was moved with the same prayer, which has been allowed by the impugned order. This application was supported with affidavit. The revisional court has dismissed the revision of the petitioners stating that the revisional court would not go into the factual matters and thus, the revision was not found having merits.

( 3 ) LEARNED counsel appearing for the petitioners has tried to emphasise that the earlier order rejecting the application of the respondent-plaintiff will operate as res judi cata and has also cited the case law of All khan Vs. Ram Prasad and another, 1981 AWC 17: (1981 All LJ 271 ). The second argument of the learned counsel is that the present application, which has been allowed by the impugned order, is stated to be an application under Section 151 C. P. C. whereas it should be an application under Order XI, rule 12 C. P. C. as specific provision for granting such prayer is provided under the Code. Therefore, if the application has been given the title of being a petition under Section 151 C. P. C. the same is not to be entertained in view of case law of N. I. M. H. and Neuro sciences Vs. C. Parameshwara, 2005 (2) AWC 1865 (SC): (AIR 2005 SC 242 ).

( 4 ) AS regards the first point of argument raised in the present case, the reply, which has been given from the side of the respondents, is that the order, which was passed earlier in Annexure-6, was not an order passed on merits and the application was summarily rejected for want of supporting affidavit. The merits of the matter whether the documents sought to be discovered are possessed by the petitioners-defendants are not gone into by the trial court in the earlier order, therefore, the said order would not operate as res judicata.

( 5 ) I find force in the reply argument given from the side of respondents. Any order whether interlocutory or not, if has not been passed on merit, it will definitely not operate as res judicata. The aforesaid case law of Division Bench of this court in the present facts and circumstances would not be applicable. The application was summarily rejected for want of supporting affidavit though, the affidavit in support of such application is not required under the procedure. So-far-as the availability of those documents with the respondents defendants is concerned, the mere observation in the earlier order is that the defendants had denied possession of the same. This point is also not discussed on merit. The second order passed by the court below is a full-fledged order passed after discussing the entire aspects of the matter and in the present context any bar of res judicata would not be applicable for the purposes to challenge this order.

( 6 ) AS regards the second point of argument that such application should not be allowed with a heading of Section 151 C. P. C. , it also does not appear to be very sound. The mere mention of provision on the heading of the application will not render the application liable for rejection. On the contrary the prayer made in the application if found to be sound and covered under some other provision of the Code, it will not be treated as one made under Section 151 c. P. C. Such application should usually be considered in the light of its otherwise merits by the court. In the present case, the application with

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