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Digitally signed

by VARSHA

VARSHA VIJAY

VIJAY RAJGURU

Date:

RAJGURU 2025.12.24

17 :48:23

+0530

16-cra-415-2023.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

varsha

CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION NO. 415 OF 2023

Smt. Draupadabai Bajirao Hagawane and Ors … Applicants

vs.

Smt Bhimabai Tukaram Hagawane and Ors … Respondents

Dr. Uday Warunjikar a/w. Mr. Utkarsh R. Pondkule i/b. Mr.

Sumit S. Kate for the Applicants.

Mr. Rahul Soman a/w. Mr. Suyash More for Respondent Nos.

15 to 18.

Mr. Purushottam Gopal Chavan for Respondent Nos. 43 to 46.

Ms. Bhagyashree S. Belkar for Respondent (through VC).

Mr. Drupad S. Patil a/w. Mr. Namitkumar S. Pansare for

Respondent Nos. 1 to 12.

CORAM : GAURI GODSE, J.

DATED : 22^nd DECEMBER 2025

ORDER:

1. This civil revision application is filed by defendants nos. 1

to 3, 8, 11 and 12 to challenge the order passed by the trial

court rejecting their application under Order VII Rule 11 of the

Code of Civil Procedure 1908 (“the CPC”).

2. Learned counsel for the applicant submits that the main

prayer in the suit is regarding a declaration that the decree

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passed in the earlier suit for partition is void and illegal. He

therefore submits that the second suit filed by the plaintiffs for

the same relief would be barred in view of the principle of res

judicata. He submits that the parties have chosen to file the

earlier suit for the properties mentioned therein; hence, after

the decree passed in the first suit, the present plaintiffs are not

entitled to seek partition and separate possession, which would

be on the same cause of action. He submits that the cause of

action pleaded in the present suit, by adding new properties

and new parties, would not make the cause of action

meaningful.

3. Learned counsel for the applicants submits that the main

relief in the suit in prayer clause (c) regarding declaration of the

decree in the earlier suit, if barred by the principle of res

judicata, the relief for partition and separate possession would

be consequential relief and thus, those reliefs also would be

barred by the principles of res judicata. He submits that the

cause of action pleaded in the suit is only with an intention to

bring the present suit within the limitation and to get over the

decree passed in the earlier suit. Hence, the cause of action as

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pleaded in the present suit cannot be termed as a meaningful

cause of action for seeking reliefs that are already decided in

the earlier suit, which is referred to in the present plaint. Hence,

the plaint deserves to be rejected at the threshold.

4. Learned counsel for the plaintiffs supports the impugned

order. He points out that the declaration in respect of the

decree in the earlier suit is based on allegations of fraud, which

are specifically pleaded in paragraphs 25 and 26 of the plaint.

He submits that the cause of action in the present suit is

completely different from the cause of action in the earlier suit.

Even otherwise, the plea of the bar of the principles of res

judicata is a mixed question of law and fact and thus, cannot be

a ground for rejecting the plaint at the threshold. He therefore

submits that the trial court has rightly refused to reject the plaint

at the threshold.

5. I have perused the pleadings in the plaint. The plaintiffs

have pleaded the relationship between the parties by setting

out the family genealogy in paragraphs nos. 7, 9, and 12 of the

plaint. All the plaintiffs in the present suit were not parties in the

earlier suit filed by defendant nos. 4, 5, 6 and 7 in the present

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suit. The plaintiffs have further pleaded fraud as a basis for

challenging the decree. It is contended by the plaintiffs that

plaintiff no. 2, after obtaining