The principle of res judicata is inapplicable when a prior suit is pending and undecided between different parties, allowing the current suit to proceed.

ORDER :

1. This Civil Revision Petition is filed aggrieved by the orders passed by the learned Principal District and Sessions Judge, Kamareddy, in I.A.No.197 of 2023 in O.S.No.24 of 2022, dated 01.03.2024, wherein, the learned trial Court dismissed the IA filed by the petitioners/defendant Nos.10 to 12 under Order 7 Rule 11 of CPC, seeking rejection of the plaint.

2. Heard Sri P. Sri Harinath, learned counsel for the petitioners and Sri V. Venkateshwara Rao, learned counsel appearing on behalf of respondent Nos.1 and 2.

3. Learned counsel for the petitioners submits that respondent Nos.1 and 2 filed a suit vide O.S.No.24 of 2022 on the file of the learned Principal District Judge, Kamareddy, seeking partition and allotment of their respective share in respect of the schedule property i.e., agricultural land admeasuring Ac.8.34 gts., in Sy.No.506 and Ac.3.17 gts., in Sy.No.507, total admeasuring Acs.12.11 gts., situated at Gopalpet Village, Nagireddypet Mandal, Kamareddy District. Even prior to filing of the above said suit, Boini Pandari, Boini Rajashekar and Boini Ravinder have filed a suit vide O.S.No.1 of 2020 on the file of the learned Senior Civil Judge, Kamareddy seeking partition and allotment of their respective share in respect of the very same schedule property and the said suit is pending. The suit filed by respondent Nos.1 and 2 in O.S.No.24 of 2022 is not maintainable and the principles of res judicata apply.

4. Learned counsel further contended that the cause of action mentioned in the earlier suit i.e., O.S.No.1 of 2020 and in O.S.No.24 of 2022 are different and the petitioners therein have not paid property court fee. Petitioners herein have filed an application vide I.A.No.197 of 2023 in O.S.No.24 of 2022 invoking the provisions of Order 7 Rule 11 of CPC seeking rejection of the plaint on the above said grounds. The learned trial Court dismissed the application vide its order dated 01.03.2024. The impugned order passed by the learned trial Court is contrary to the provisions of Order 7 Rule 11 of CPC and the same is liable to be set aside.

5. Per contra, learned counsel appearing for respondent Nos.1 and 2 submits that the provisions of Order 7 Rule 11 of CPC are not applicable and the learned trial Court rightly dismissed the application.

6. Having considered the rival submissions made by respective parties and after perusal of the material available on record, it reveals that respondent Nos.1 and 2 have filed Suit O.S.No.24 of 2022 on the file of Principle District and Sessions Judge, Kamareddy seeking partition and allotment of respective shares in respect of scheduled property to an extent of Acs.12.11 guntas, situated at Gopalpet Village, Nagireddypet Mandal, Kamareddy District against the revision petitioners as well as respondent Nos.3 to 12. Even prior to filing of the said suit, Boini Pandari, Boini Rajashekar and Boini Ravinder have filed Suit O.S.No.1 of 2020 on the file of Senior Civil Judge, Kamareddy, seeking partition and allotment of respective shares in respect of very same scheduled property. The plaintiffs in O.S.No.24 of 2022 were not the parties in O.S.No.1 of 2020 and plaintiffs in O.S.No.1 of 2020 are not parties in O.S.No.24 of 2022 except plaintiff No.2-Boini Rajashekar who is made as party defendant No.13. However the scheduled property mentioned in both the suits is one and same. Revision petitioners filed I.A.No.197 of 2023 seeking rejection of the plaint on the ground that same operates res-judicata and also on the ground of cause of action.

7. It is relevant to extract Section 11 of Code of Civil Procedure, 1908, which reads as follow