The petitioner aggrieved by the order Annexure P-l dated 17.11.2003 passed by First Additional Judge to the Court of Ist Civil Judge, Sagar, in Civil Original Suit No. 34-A/2003, has filed this petition. By the impugned order, the Court below allowing the application filed by respondents under section 9 of CPC recorded a finding that the suit is barred by principle of res judicata and dismissed the suit.

The learned counsel appearing for petitioner submits that the order passed by the Court below is neither appealable nor revisable and this petition may be entertained. The contention is that the trial Court without following the procedure of law decided the application filed by respondents. Before deciding the application under section 9 of CPC and to consider the plea of res judicata, it was necessary for the respondents to place all material on record and the trial Court ought to have considered the pleadings of previous suit, issues and the judgment without which plea of res judicata cannot be decided. Reliance is placed to a judgment of this Court in the case of State of M.P. v. Babu Lal 1992 JLJ 25.

Contending aforesaid, the learned counsel for petitioner