( 1. ) BY this petition filed under Article 226/227 of the Constitution of India, the petitioners have challenged the pregnability of the order dated 1-8-1991 passed by 1st Civil Judge Class 2 Betul and order dated 26-9-91 passed in revision by IInd Additional District Judge, Betul, dismissing the revision petition of the petitioner and affirming the order of Trial Court.

( 2. ) THE defendants/petitioners submitted an application in the Trial Court raising an objection that since earlier suit of plaintiffs was dismissed, the subsequent suit is not maintainable. The objection has been rejected and it was held by the Trial Court that subsequent suit is maintainable. The revision petition filed by the defendants before IInd Additional District Judge, Betul has been rejected by the impugned order.

( 3. ) THE unfolded facts of the case are that plaintiff- Pandu who is respondent No. 1 herein this petition, filed earlier a suit which was registered as Civil Suit Number 126-A/90, however, on being transferred to the Court of IIIrd Civil Judge Class 2, the number was changed and the suit was registered as Civil Suit Number 35-A/91. The said suit was dismissed on 10-5-91 for want of better particulars under Order 6 Rule 5, CPC. The petitioners have filed copy of the said order. Thereafter plaintiff-Pandu again filed present suit which has been registered as Civil Suit No. 65-A/91. On filing of the second suit, the present petitioners who are defendants in the Trial Court, submitted an application that the present suit, which has been subsequently filed, can not be tried because the matter which was directly and substantially in issue in the earlier suit between the same parties, was dismissed on 10-5-91 and, therefore, the present suit is barred by the principle of res judicata. The earlier suit was dismissed on account of non- furnishing the better particulars regarding sending the notice under Section 80, CPC.

( 4. ) THE application was opposed by plaintiff/respondent No. 1 on the ground that the present suit has been filed after taking permission under Section 80 (2), CPC from the Court and the earlier suit was dismissed only on the ground of non-furnishing of better particulars and thereafter the defendants rapidly started work of construction and, therefore, the present suit has been filed after the permission granted by the Court under Section 80 (2), CPC. The dismissal of the earlier suit will not operate as res judicata.

( 5. ) THE Trial Court dismissed the application of petitioners on 1 -8-91. The defendants/petitioners filed civil revision against the said order before the IInd Additional District Judge, Betul which has also been dismissed. Hence this petition.

( 6. ) THE contention of Shri D. K. Dixit, learned Counsel for the petitioner is that since the earlier suit was dismissed under Order 6 Rule 5, CPC for want of better particulars, it would amount to a decree and the subsequent suit between the same parties in which the subject matter is directly and substantially in issue is same which was directly and substantially in issue in the former suit between the same parties and, therefore, the present suit can not be tried since it is hit by the principles of res judicata.

( 7. ) THE contention of learned Counsel for the petitioners is that Full Bench of this Court in the case of Budhulal v. Chhotelal and Ors. 1976 JLJ 797 has held in Para 13 that dismissal of suit on account of non-furnishing of further and better particulars amounts to the decree. The Full Bench relied earlier decision of this Court Nazir Abbas Sujjat Ali Raza Azamshah Baja Suleman Shah and Ors. AIR 1941 Nagpur 223. In the case of M. P. State Co-operative Land Development Bank Ltd. , Bhopalvs. J. L. Chouksey ,, AIR1980 MP 204 , the Single Bench of this Court has also placed reliance on the Full Bench decision of Budhulal (supra) and has held that the dismissal of the suit on account of failure on the part of the plaintiff to furnish better particulars,