THE HONOURABLE SMT. JUSTICE RENUKA YARA CIVIL REVISION PETITION No.2186 of 2024

ORDER:

Heard Sri V. S. Sudhaker, learned counsel for the revision petitioner and Sri Shaik Shafee Ur Raheman, learned counsel for the respondents.

Perused the entire record.

2. This revision is preferred aggrieved by the order dated 10.06.2024 in I.A.No.1052 of 2023 in O.S.No.1408 of 2019 passed by the learned XVIII Additional Senior Civil Judge, City Civil Court, Hyderabad (‘trial Court), wherein a petition filed under Section 11 of C.P.C., to dismiss the suit under the concept of res judicata, has been dismissed.

3. The suit in O.S.No.1408 of 2019 was filed by the respondents herein seeking relief of recovery of possession, mandatory injunction and for damages. In the said suit, the I.A. under revision is filed to dismiss the suit under Section 11 of C.P.C. under the concept of res judicata.

4. It is the contention of the revision petitioner that the respondents have filed suit for declaration of title and perpetual injunction vide O.S.No.1307 of 2010 on the file of the learned VII Senior Civil Judge, City Civil Court at Hyderabad and the said suit was dismissed vide judgment and decree dated 16.07.2021. The parties in O.S.No.1307 of 2010 and in O.S.No.1408 of 2019 are the same and therefore, the suit is covered under the principle of res judicata, as such sought dismissal of the same.

5. The respondents opposed the petition by filing counter alleging that they are owners and possessors of the suit schedule property and are not concerned with O.S.No.1307 of 2010, which is completely different and there is no resemblance with respect to the suit schedule property. The suit schedule property and the relief claimed are completely different and no relief was sought by the respondents against the revision petitioner in O.S.No.1307 of 2010 and therefore, the concept of res judicata is not applicable.

6. The trial Court examined the facts of the case vis-à-vis Section 11 of C.P.C. and dismissed the I.A., leading to filing of the present revision.

7. In the grounds of revision, it is pleaded that the respondents do not have any right over the suit schedule property to seek relief of recovery of possession and mandatory injunction. Further, it is pleaded that the evidence of GPA holder of the respondents cannot be taken into consideration. The petition filed by the revision petitioner from preventing the GPA holder of the respondents from adducing evidence has been dismissed by the trial Court by not observing the facts of the case, as such it is pleaded that the impugned order is liable to be set aside.

8. Learned counsel for the revision petitioner argued that subject matter of suit in O.S.No.1307 of 2010 and the present suit is the same and therefore, the present suit is not maintainable.

9. Per contra, the learned counsel for the respondents has argued that there is no connection between the suits as parties, the suit schedule property and the relief claimed are different and therefore, the concept of res judicata is not applicable.

10. In the backdrop of the rival contentions, there is need to examine the case of the revision petitioner vis-à-vis Section 11 of C.P.C. Section 11 of C.P.C. is extracted and produced below:

“Section 11: Res judicata No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

11. As per the above section, the second suit cannot be tried when the main issue in it is directly or substantially the main issue directly or substantially in former suit between the same parties under whom they or any of them claim, litigating under the same title, in a Court competent to