1. The appellant/plaintiff has preferred this appeal being aggrieved by the order dated 30.10.2006 passed by Second Additional District Judge, Bhopal in Civil Original Suit No.. 157-N05 dismissing its suit by allowing the applications of respondent No.4 filed under Order 7 Rule 11 of CPC.

2. The facts giving rise to this appeal in short are that the appellant filed a suit for declaration and injunction against respondents No. 1 to 3 in respect of using some "Public Road" between the land of appellant bearing Survey No. 206/1/1 and 206/2 area 6.61 hecter and of respondent No.3 bearing Survey Nos. No. 140,204 and 205 and of respondent No.4 bearing survery Nos. 63 and 66 situated at Village Nare1a Shankari in Tahsil Huzur, District Bhopal. Subsequent to filing the suit, the respondent No.4 on impleading it as defendant No.4 filed an application under Order 7 Rule 11 of CPC contending that the subject matter of suit substantially and directly on the same issues has been finally adjudicated between the parties in Civil Original Suit No. ll-A/89 vide judgment and decree dated 29.3.2006 passed by 4th Civil Judge Class-II, Bhopal. By annexing the copy of such judgment and decree along with some other papers with it on the principle of res-judicata enumerated under section 11 of CPC the prayer or dismissal of the suit was made. On consideration, the trial Court by allowing such application dismissed the suit on account of the principle of res-judicata at the initial stage even before filing the written statement and framing the issues. The same is challenged by the appellant in this appeal.

3. Shri Sidharth Gulathi, learned counsel for the appellant assailed the impugned order saying that respondents No. 1 to 3 were not the parties in the aforesaid Civil Original Suit No. 11-A/89. Therefore, in any case principles of res-judicata was not applicable between appellant and such respondents. Besides this as per settled position of law the question or res-judicata could be decided only after filing the written statement, framing the issues and on proving the pleadings of earlier suit by admissible evidence and prior to that stage such question could not be decided even between the appellant and respondent No.4. It is apparent from the impugned order that contrary to such settled proposition of law at premature stage the suit of the appellant has been dismissed by the trial Court. In this premises, the impugned order is not sustainable and prayed for remitting back the matter to the trial Court for fresh adjudication in accordance with law by setting aside the impugned order.

4. In reply of aforesaid argument Shri A.L. Patel, learned Government Advocate not only justified the impugned order but also said that when the subject matter of dispute has already been adjudicated between the parties in earlier suit then subsequent suit was barred by res-judicata. Therefore, the trial Court has not committed any error in dismissing the suit by virtue of Order 7 Rule 11 of CPC and prayed for dismissal of this appeal.

5. Smt. Sobha Menon Senior Advocate assisted by Ms. Manjeet Chakkal Advocate, learned counsels of the respondent No.4 justified the impugned order between the appellant and respondent No.4 but fairly conceded that in earlier suit respondents Nos. 1 to 3 were not impleaded as parties. Hence the doctrine of res-judicata is not applicable against such respondents but in view of the aforesaid earlier judgment and decree passed in Civil Original Suit No. 11-A/89. She prayed for dismissal of this appeal against respondent No.4.

6. Having heard the learned counsels, I have perused the papers placed by the parties on record, it appears that in respect of same subject matter at earlier point of time Civil Original Suit No. Il-N89 has been adjudicated in respect of the subject matter of this suit between the appellant and respondent No.4 by 4th Additional Civil Judge Class-II, Bhopal. Copies of such judgment and