JUDGMENT

Vishal Dhagat, J. - Applicants namely Suresh Kesharwani and Geeta Kesharwani are defendants before the trial Court and non-applicant No. 1 is plaintiff before the trial Court. Applicants (hereinafter referred to as defendants) had filed an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 before the trial Court making a prayer that civil suit RCS No.430/2019 is not maintainable as same is barred by principle of resjudicata. Earlier non-applicant No. 1 (hereinafter referred to as plaintiff) has filed a suit bearing registration number RCS No. A769/2018. Defendants averred that parties, pleadings and prayer in former Civil Suit No. 769/2018 is same as made in the subsequent suit No. 430/2019. It was further pleaded in the application that plaintiff has filed an application under Order 23 Rule 1 of CPC in civil suit No. 769/2018 for simple withdrawal of suit. Learned trial Court vide its order dated 10/04/2019 allowed the application for withdrawal of suit on condition that plaintiff is precluded to file the suit on the same subject matter in future.

2. On basis of aforesaid pleadings, defendants made a prayer in their application to reject the plaint filed by the plaintiff and further be pleased to impose heavy cost on plaintiff for abuse of process of law in the interest of justice.

3. Learned trial Court vide its order dated 27/06/2019 rejected the application filed by the defendants. Learned trial Court held that former suit which was filed by the plaintiff was not decided on merits and nature of relief claimed in former suit, i.e. RCS-A769/2018 and subsequent suit, RCS No. 430/2019 is different, therefore, subsequent suit of plaintiff is not barred by the principle of resjudicata.

4. Impugned order dated 27/6/2019 is under challenge in civil revision on the grounds that fresh Civil Suit filed by the plaintiff is barred by the principle of resjudicata, learned trial Court has allowed withdrawal of suit under Order 23 Rule 1 of CPC with condition that plaintiff will be precluded to bring fresh suit again for the same cause of action. It was also pleaded that learned trial Court ignored the fact that former suit was amended on 18.01.2019 and Smt. Geeta Kesharwani and Suresh Kesharwani was made a party to the suit. Prayer for amending relief clause and to substitute clause a was also allowed ie. to declare sale deed dated 03.08.2018 to be null and void. Prayer for permanent injunction to restrain purchasers to disturb plaintiff in enjoyment of 8 feet passage and declaration that purchasers have no right to dispossess plaintiff on basis invalid sale deed.

5. Counsel appearing for plaintiff opposed the application on the ground that cause of action in both the civil suits is different. In former suit cause of action is dated 02.08.2018 and in subsequent suit cause of action is 24.04.2019. Former suit RCS-A769/2018 was not decided on merits therefore principle of resjudicata is not attracted and therefore Civil Revision filed by the defendants may be dismissed.

6. Heard the counsel appearing for both the parties. On perusing the application filed under Order 7 Rule 11 CPC, 1908, two points has been pleaded by the defendants firstly, the suit is barred by resjudicata and secondly, plaintiffs were allowed to withdraw the suit vide order dated 10.04.2019 without liberty to institute fresh suit and are precluded to file the suit on the same subject matter.

7. Now it is to be seen whether the trial Court has committed an error of jurisdiction in dismissing the application filed by defendants under Order 7 Rule 11 CPC, 1908. Trial Court came to finding that earlier suit was not decided on merits and relief sought in both the suits are different therefore suit is not barred under Section 11 of CPC by principle of resjudicata. Trial Court did not advert to fact whether plaintiff can bring a fresh suit in face of order dated 10.04.2019.

8. Section 11 of the Code of Civil Procedure is based on principle of resjud