IMPORTANT POINT
An issue previously not decided on merits can be revisited by the trial court, affirming the principles of res judicata.

JUDGMENT :

JAYANT BANERJI, J.

1. Heard Shri Shailesh Kumar Pathak, learned counsel for the petitioner and Shri Anil Kumar Mishra, learned counsel, who has filed his vakalatnama today in Court, which has been taken on record.

2. This petition has been filed seeking the following relief:

“(i) Issue a direction or order setting aside the impugned order dated 18-3-2023 passed by Civil judge Senior Division Sonbhadra in Original Suit No. 216 of 2000, Shahidan v. Shankar Chaubey.”

3. The order under challenge has been passed by the trial Court allowing an application being Paper No. 176 Ga filed by the defendant-respondent. The background of the matter has been discussed in the judgment passed today in Matters Under Article 227 No. 6854 of 2019, which was listed today alongwith the present case. As it appears from perusal of paragraph Nos. 9 and 10 of this petition, the application Paper No. 176 Ga was initially rejected by an order of the Court dated 28.8.2017 against which a Civil Revision No. 42 of 2017 was filed before the District Judge, Sonbhadra and the District Judge by means of the order dated 23.7.2019 had allowed the revision and has set aside the order dated 28.8.2017 and had remanded the matter back to the trial Court to decide the application Paper No. 176 Ga afresh.

4. The contention of the learned council for the petitioner is that the issue No. 6 was decided by means of an order dated 15.7.2009, in view of the fact that neither of the parties pressed the issue when the matter was taken up. It is stated that once the issue has been decided by means of an order dated 15.7.2009, the trial Court by its impugned order of 18.3.2023 could not have recalled its order dated 15.7.2009 in respect of issue No. 6.

5. Learned counsel for the respondent has opposed this petition on the ground that the previous order of 15.7.2009 has been justifiably recalled by the trial Court and by allowing the application 176 Ga, the issue of res judicata is required to be decided by the trial Court. It is stated that by the order dated 15.7.2009, no decision on merits was taken with regard to issue No. 6, which was whether the present suit would be barred by principle of res judicata. Learned council has referred to the application 176 Ga in support of his contention that the first developments have taken place in view of the dismissal of the second appeal filed by the plaintiff in a previously instituted suit and thereafter amendments were made both in the plaint as well as in written statement.

6. Evidently, from perusal of the order dated 15.7.2009 it appears that the order passed therein with regard to the issue No. 6 was not on merit but in view of the fact that the counsel for the parties did not press that issue. The order on issue No. 6 passed on 15.7.2009 is as follows:

7. The issue of res judicata can be raised at an appropriate stage in a suit when a previously instituted suit between the parties regarding the matter which is directly and substantially in issue is the same as in the former suit between the same parties, or between parties under whom they or any of them claim and which suit has been heard and finally decided by the Court. The previously instituted suit being Original Suit No. 34 of 1979 came to be finally adjudicated by decision in the Second Appeal No. 1319 of 1983, the judgment of which was delivered on 9.1.2012. These facts are reflected in the application 176 Ga filed by the defendant-respondent and which have not been denied by the plaintiff-petitioner.

8. Under the circumstances, the order impugned dated 18.3.2023 does not suffer from any jurisdictional irregularity or error that may merit interference. This petition is, therefore, dismissed.

9. The trial Court would proceed to consider the issue No. 6 on its own merit and uninfluenced by any observation made by the revisional Court or by this Court in this matter. Under the facts and circumstances of the case, the trial Court is requested to decide the issues involved in