The principle of res judicata bars re-litigation of matters already decided, confirming that the earlier judgment is binding and the current suit is not maintainable.

ORDER :

Heard on the question of admission.

2. The appellant by the instant appeal filed under Section 100 of the Code of Civil Procedure is assailing validity of judgment and decree passed by both the Courts below, dismissing the suit of the plaintiff/appellant.

3. As per facts of the case, a suit was filed by the plaintiff/appellant for declaration and permanent injunction against the respondent/defendant. After filing of the suit, the defendant/respondent moved an application under Order 7 Rule 11 of CPC for rejection of the plaint on the ground that the suit is not maintainable as the same is hit by principle of res judicata and also on the ground that the suit is barred by limitation. It is also mentioned in the application that the fact in regard to judgment and decree already passed in favour of the defendant/respondent in Civil Suit No.192-A/92 vide judgment and decree dated 23.11.1992 was very much in the knowledge of the plaintiff and as such, in view of the Law of Estoppel, a second suit is not maintainable as no cause of action accrued in favour of the appellant/plaintiff and as such, it is claimed in the application that the suit filed by the plaintiff be dismissed on the ground of limitation as barred by law and also as per the principle of constructive res judicata.

4. The application was duly replied by the appellant/plaintiff saying that application under Order 7 Rule 11 of CPC cannot be decided at this stage and as such, the application deserves to be dismissed directing the respondent/defendant to file written-statement.

5. The trial Court considered the application and on the basis of the averments made in the plaint itself, arrived at a conclusion that in the suit, i.e. Suit No. 192-A/92, a copy of the said judgment and decree has also been filed by the plaintiff/appellant along with the documents in which the President, Special Area Development Authority (SADA), Khajuraho was one of the parties and after abolition of the said authority, Nagar Palika Parishad has been constituted and all the properties relating to SADA are merged with the Nagar Palika Parishad and, therefore, claiming that the decree passed earlier in 1992 is not binding upon the plaintiff/appellant, is not proper and, therefore, the said suit is not maintainable because it has already been declared that the said land belonged to the defendant/respondent but merely because in the said suit, Nagar Palika Parishad was not the party, therefore, it is not binding upon them, the suit cannot be entertained and as per the relief claimed, it is apparently barred by limitation and no cause of action, according to the Court accrues in favour of the plaintiff and, as such, the Court allowed the application and dismissed the suit mentioning therein that earlier suit decided and the finding given thereof is binding upon the plaintiff/appellant and, therefore, a second suit for the same cause of action is not maintainable.

6. An appeal was preferred against the said judgment and decree but the same was also dismissed vide judgment and decree dated 06.01.2015 passed in Civil Appeal No.1-A/15; hence this second appeal.

7. Counsel for the appellant has argued this appeal solely on the ground that the application under Order 7 Rule 11 CPC raising a ground of res judicata cannot be decided unless issues are framed and evidence is recorded by the trial Court. He has placed reliance upon a judgment reported in (2021) 9 SCC 99 (Srihari Hanumandas Totala Vs. Hemant Vithal Kamat and Others) and further in a case reported in 2023 LiveLaw (SC) 799 (Keshav Sood Vs. Kirti Pradeep Sood and Others).

8. I have perused the record and also the judgments on which counsel for the appellant has placed reliance.

9. There is no quarrel in respect of the fact that if any question of res judicata is raised, then the same can be decided by the Court after framing issues and recording evidence of the parties so as to determine whether question of res judicata applies or not. Relying on the